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HomeMy WebLinkAbout12-01-2016 Banking Services Agreement with JP Morgan Chase BankBANKING SERVICES AGREEMENT THIS BANKING SERVICES AGREEMENT is made and entered into in the City of San Luis Obispo on this 1" day of December, 2016, by and between the CITY OF SAN LUIS OBISPO, a municipal corporation, hereinafter referred to as City, and JPMorgan Chase Bank, N.A., hereinafter referred to as Banking Institution. WITNESSETH: WHEREAS, on June 1, 2016 City requested proposals for banking services pursuant to Solicitation No. 91450 (the "Solicitation) and WHEREAS, pursuant to said request, the Banking Institution submitted a proposal which was accepted by City for said banking services. NOW THEREFORE, in consideration of their mutual promises, obligations and covenants hereinafter contained, the parties hereto agree as follows: 1. TERM. The initial term of this Agreement shall commence on December 1, 2016 and expire on midnight California time, November 30, 2019, and thereafter, subject to mutual agreement of the parties, will be extended for an additional three (3) years. 2. INCORPORATION BY REFERENCE, The Banking Institution's proposal dated July 15, 2016 (the "Proposal")", inclusive of all exhibits attached thereto (including, without limitation, Banking Institution's Global Account Terms, with US Addendum, and its Consolidated Service Terms applicable to the services awarded ("Account and Service Terms")), and the Solicitation are hereby incorporated in and made a part of this Agreement. 3. CITY'S OBLIGATIONS. For providing services as specified in this Agreement, City will pay and the Banking Institution shall receive therefor compensation as set forth in the Proposal. 4. BANKING INSTITUTION'S OBLIGATIONS. For and in consideration of the payments and agreements hereinbefore mentioned to be made and performed by City, the Banking Institution agrees with City to do everything required by this Agreement. 5. AMENDMENTS, Any amendment, modification or variation from the terms of this Agreement shall be in writing, executed by both parties, and shall be effective only upon approval by the City Manager of the City. 6. COMPLETE AGREEMENT/ORDER OF PRECEDENCE. This written Agreement, including the Exceptions to Solicitation as set forth in Exhibit A and revised insurance requirements in Exhibit A-1 (collectively, the "Exceptions"), and the incorporated documents referenced in paragraph 2 above, constitute the complete agreement between the parties hereto with respect to the subject matter of this Agreement and the services to be provided hereunder. No oral agreement, understanding, or representation not reduced to writing and specifically incorporated herein shall be of any force or effect, nor shall any such oral agreement, understanding, or representation be binding upon the parties hereto. In the event of any inconsistencies between the documents comprising this Agreement, the following order of precedence shall apply with each listed document superseding inconsistent provisions within the documents that follow it: this executed Agreement, inclusive of the Exceptions (the "Master Agreement") the Proposal, exclusive of the Account and Service Terms the Solicitation the Account and Service Terms 7. NOTICE. All written notices to the parties hereto shall be sent by United States mail, postage prepaid by registered or certified mail addressed as follows: City Dirm.ml ftrgry '11W av 02 - City of San Luis Obispo Die -cool - 990 Palm Street San Luis Obispo, CA 93401 Banking Institution JPMorgan Chase Bank, N.A. c/o Paul Dawkins, Vice President 300 South Grand Avenue, Floor 03 Los Angeles, CA, 90071-3109 6. AUTHORITY TO EXECUTE AGREEMENT. Both City and the Banking Institution do covenant that each individual executing this Agreement on behalf of each party is a person duly authorized and empowered to execute agreements for such party. 7. ASSIGNMENT/SUBCONTRACTORS. Banking Institution may not assign this Agreement, in whole or in part, and may not assign any right or duty required under it; provided, however, that Banking Institution may assign this Agreement without the prior written consent of City to a successor in interest in connection with a merger, reorganization, consolidation, or a disposition of a particular business to which this Agreement relates, and may assign this Agreement to an affiliate or subsidiary. In the event of an assignment, Banking Institution shall notify City and, in such event, City shall have the right to immediately terminate this Agreement. For all purposes under this Agreement, inclusive of all attachments hereto, "subcontract" and "subcontractor" shall refer to a third party or an agreement with such third party, if any and as applicable, engaged by Banking Institution to specifically aid in the performance of its obligations under this Agreement, but shall not include any third party engaged by Banking Institution, from time to time, in the performance of certain operational, technological, incidental, or back office functions that assist Banking Institution in its performance of services, on a common basis, for all or most of its customers utilizing such services, such latter category of third parties being referred to as Third Party Service Providers. Banking Institution will obtain prior consent to its use of any "subcontractors" in the performance of services, to the extent and in the manner required under this Agreement, but shall not be required to notify or obtain written consent from City or any other party to its engagement of Third Party Service Providers. 8. AUDIT AND INSPECTION RIGHTS. Banking Institution will allow, at City's expense, City's auditors and independent public accountants, including where state or federal assistance is involved, state and federal auditors identified by City, reasonable access during normal working hours to City's bank records as is reasonably required in connection with their examination specifically pertaining to the City's accounts, and use of funds and services provided by the Bank to the City. Any access or examination will be: requested in writing; specifically describe the scope and records required; mutually agreed upon as to time and scope; and subject to Banking Institution's security procedures and record retention policies. Banking Institution may impose reasonable restrictions on the number of individuals allowed access, the frequency and length of access, and the scope of the records made available. City shall reimburse Banking Institution for the reasonable cost of copying, collating, researching and producing archived information. 9. INDEMNIFICATION/LIMITATION OF LIABILITY. Banking Institution agrees to defend, indemnify, protect and hold City and its agents, officers and employees harmless from and against any and all claims to the extent that the same are caused by the breach of contract, negligence, or willful misconduct of Banking Institution, its agents, officers, or employees in their performance of the services under this Agreement. Notwithstanding the foregoing, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES, INCLUDING LOST PROFITS, REGARDLESS OF THE FORM OF ACTION OR THEORY OF RECOVERY, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES OR THE SAME ARE REASONABLY FORESEEABLE. Further, Banking Institution's indemnification obligations against third party claims shall not exceed an amount equal to two (2) times the average annual fees paid or payable by City under this Agreement. 10. MERCHANT PROCESSING SERVICES. Merchant processing services, as described in the Proposal, will be performed by Paymentech LLC and governed by the agreement entered into between City and Paymentech. Other than the insurance provisions in Exhibit A-1, the provisions of this Agreement shall not apply to Paymentech LLC, nor its performance of merchant processing services. IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed the day and year first above written. [Remainder ofpage is intentionally blank Signature page and Exhibit follows.] ATTEST: 1 City Clerk APPR WCC) AS TO FORM: Cit Attomey > C� i zst l,t D;`tr" � BANKING INSTITUTION ]PMORGAN CHASE BANK, N.A. By: Name: Paul Dawkins Title: Authorized Officer CITY OF SAN LUIS OBISPO, A Municipal Corporation 13y; Director cc Exhibit A Exceptions to Solicitation Insurance Requirements. The Contractor shall provide proof of insurance in the form, coverages and amounts specified in Exhibit A-1, as a precondition to contract execution. (Supersedes Section E of the Solicitation) 2. Business License and Tax. The Contractor is not required to have a City of San Luis Obispo business license because it is exempt from the same under the California Revenue and Tax Code, Section 23182, Tax imposed on banks in lieu of other taxes, which provides: "The tax imposed under this part upon banks and financial corporations is in lieu of all other taxes and licenses, state, county, and municipal, upon the said banks and financial corporations except taxes upon their real property, local utility user taxes, sales and use taxes, state energy resources surcharge, state emergency telephone users surcharge, and motor vehicle and other vehicle registration license fees and any other tax or license fee imposed by the state upon vehicles, motor vehicles or the operation thereof." (Supersedes Section B, paragraph 13, page 10 of the Solicitation.) 3. Ability to Perform/Laws to be observed. Banking Institution warrants that it possesses, or has arranged through subcontracts, all capital and other equipment, labor, materials, and licenses necessary to carry out and complete the work hereunder in compliance with any and all federal and state laws, and, if notified of the same by City, county, city, and special district laws, ordinances, and regulations, which, in any case, are binding upon Banking Institution. (Supersedes Section B, paragraph 14 of the Solicitation.) 4. Laws to be observed. Banking Institution shall keep itself fully informed of and shall observe and comply with all applicable state and federal laws and, if notified of the sante by City, county and City of San Luis Obispo ordinances, regulations and adopted codes, in each case, binding upon Banking Institution during its performance of the work. (Supersedes Section B, paragraph 15 of the Solicitation.) 5. Audit and Inspection Rights. Paragraphs 25 and 26 of Section B are superseded by Section 8 of the Master Agreement 6. Interests of Contractor. Paragraph 27 of Section B is amended by the following proviso: For purposes of this covenant, persons with "financial interests" will not be deemed to include any shareholders of Banking Institution's parent company, which is a publicly traded entity, or any person that is employed by Banking Institution whose duties may involve the performance of services under the Agreement and is compensated for such services. Further, a conflict of interest will not be deemed to be present through Banking Institution's performance of services for other customers whose interests may be adverse to those of City. Hold Harmless and Indemnification. Paragraph 28 of Section B of the Solicitation is superseded in its entirety by Section 9 of the Master Agreement. Contract Assignment. Paragraph 29 of Section B of the Solicitation is superseded in its entirety by Section 7 of the Master Agreement. 9. Termination. Paragraph 30 of Section B of the Solicitation is amended as follows! If, during the term of the contract, the City determines that the Contractor is not faithfully abiding by any term or condition contained herein, the City may notify the Contractor in writing of such defect or failure to perform. This notice must give the Contractor a 10 (ten) calendar day notice of time thereafter in which to perform said work or cure the deficiency. If the Contractor has not performed the work or cured the deficiency within the ten days specified in the notice, such shall constitute a breach of the contract and the City may terminate the contract immediately by written notice to the Contractor to said effect. Thereafter, neither party shall have any further duties, obligations, responsibilities, or rights under the contract except, however, a"y fees for services performed by Contractor and accepted by Cit prior to the effective elate of such termination shall be paid by Ci , -agy-aii&-a4ehligations E1 �1�8 i4E!!1&EHF'�i-Si�i#lFc� �iia:i in- full G vee ..,,ate,lTee, i'td.Wed; Or4ni3ny-i WHRef WHi r'ed jf-t'he W-Fini*:"`:.ae'n�n theizv'r. •,ai- sc�z:siir , atmage9--fEem 5EfCsr%i�EfiBl3. son.. "iflelu es Wes a elia.ges for 7 as of the t..,.{ 'iCyFfly-Eldii:Bi.['Ei f3 +he Agreement payment s e 10. Release of Reports and Information. Section C, paragraph 9 of the Solicitation is deleted given that this is not a work for hire contract. However, Banking Institution agrees that it shall maintain the confidentiality of City's account information and will not disclose it to third parties absent the prior written approval of City, except as necessary to perform the services, or as otherwise required by law, or to its internal auditors. Exhibit A-1 Insurance Requirements (Supersedes Section C and Section B, para 3 of the Solicitation) — The Contractor shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work hereunder by the Contractor, its agents, representatives, employees or subcontractors. Minimum Scope of Insurance. Coverage shall be at least as broad -as: 1. Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001). 2. Insurance Services Office form number CA 0001 (Ed. 1/87) covering Automobile Liability, code 1 (any auto). 3. Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance. Minimum Limits of Insurance. Contractor shall maintain limits no less than: 1. General Liability: $1,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. 2. Automobile Liability: $1,000,000 per accident for bodily injury and property damage, 3. Employer's Liability: $1,000,000 per accident for bodily injury or disease. Other Insurance Provisions. The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions: 1. The City, its officers, officials, employees, agents and volunteers are to be included as additional insureds as agreed to within the indemnification section of this contract with respects to: liability arising out of activities performed by or on behalf of the Contractor; products and completed operations of the Contractor; premises owned, occupied or used by the Contractor; or automobiles owned leased, hired or borrowed by the Contractor. The coverage shall contain no special limitations on the scope of protection afforded to the City, its officers, official, employees, agents or volunteers. 2. For any claims related to this project, the Contractor's insurance coverage shall be primary insurance as respects the City, its officers, officials, employees, agents and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, agents or volunteers shall be excess of the Contractor's insurance and shall not contribute with it. 3. The Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. 4. Contractor shall provide 30 days notice of any cancellation or reduction in limits or coverage but only to the extent that such change in insurance would place contractor in breach of this agreement. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A — (minus): VII. Verification of Coverage. Contractor shall furnish the City with a certificate of insurance showing required coverage with remarks section stating additional insured status. Subcontractors. Contractor shall include all subcontractors as insured under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein.