Wells Fargo Bank - Bank Services Agreement`:5 i a
MASTER AGREEMENT
FOR
TREASURY MANAGEMENT SERVICES
This Master Agreement for Treasury Management Services ( "Agreement ") is entered into this
day of F. _ . , 2002 between WELLS FARGO BANK, NATIONAL ASSOCIATION ( "Bank ") and the undersigned
( "Company ").
Bank provides certain treasury management services to its business and commercial customers, and
Company anticipates that it will from time to time engage Bank to perform one or more of those
services in accordance with this Agreement (each a "Service ").
For each Service, the following documents (collectively the "Service Documentation "), as each may be
amended from time to time, contain the terms, conditions and fees governing the provision of that
Service to Company and any of its subsidiaries or affiliates on whose behalf Company is acting:
• Master Agreement for Treasury Management Services;
• Service Description for each Service;
• Security Procedure Agreement for a Service;
• Account Agreement for Company's Business or Commercial deposit accounts related to a Service;
• Set -up Form(s) for a Service;
• User Guide for a Service; and
• Any other document referred to in one of these documents as incorporated in or a part of the
document or the agreement contained in the document.
Company, for itself and on behalf of each of those subsidiaries and affiliates, agrees to be bound by
such terms and conditions, and the term "Company" as used in the Service Documentation includes
Company and each of those subsidiaries or affiliates. As used in the Service Documentation:
• "Account Agreement" means, for each Service, the agreement between Company and Bank governing
each deposit account at Bank related to the Service;
• "Security Procedure Agreement" means, for each Service involving a transfer of funds from an account
at Bank, the written agreement between Company and Bank establishing the security procedure(s)
used to authorize a transfer;
■ "Service Description" means, for each Service, the written description of that Service and certain of the
terms governing its use, as modified or amended from time to time, which Bank provides with respect
to that Service;
■ "Set -up Form(s)" means, for each Service, the form(s) which Bank requires be completed or provided
to Bank by Company for that Service; and
• "User Guide" means, for each Service, any guides, quick reference guides, manuals, price schedules,
specifications, materials, computer programs, computer program licenses, reset diskettes, documents,
computer, website and other instructions, forms and notices, as modified or amended from time to
time, not included in the applicable Service Description, which Bank provides in connection with that
Service.
JB3417Q2.3 Page 1
(Revised 11/15/01)
If Company is already a treasury management services customer of Bank, the Service Documentation
for each Service that Company is currently receiving replaces the existing agreement(s) with Bank or
any predecessor to Bank by acquisition or merger with respect to the Service, unless the Service is
listed as an "Excluded Service" below Company's signature at the end of this Agreement. Any existing
agreements with respect to each Excluded Service will remain in effect and continue to govern the
Excluded Service until terminated in accordance with their provisions.
Bank and Company agree:
1. Services. Bank will provide Company with each Service separately requested by Company
and agreed to by Bank on a case by case basis. Each Service is described in the Service
Description and other Service Documentation applicable to that Service. Bank may require that
the request be in writing and be signed by an authorized officer, agent or employee of Company
as set forth in a resolution of Company's Board of Directors certified in writing by an appropriate
officer of Company to be current and correct; or, if Company is not incorporated, by other
appropriate procedure acceptable to Bank. Company's use of a Service after receipt of the
Service Documentation for that Service will confirm its agreement to the terms, conditions and
fees set out in the Service Documentation for that Service. Company acknowledges receiving a
copy of the Service Documentation for each Service it requested at the time it entered into this
Agreement. In the event of any conflict among the items constituting the Service
Documentation, the following will govern in the following order:
• the Service Description;
• the Security Procedure Agreement;
• the Master Agreement for Treasury Management Services;
• the Set -up Form(s);
• the User Guide; and
■ the Account Agreement.
2. Performance of the Services. Bank will perform each Service in accordance with:
• reasonable commercial standards applicable to Bank's business;
• operating circulars, regulations and laws governing the activities of Bank;
• applicable funds transfer system(s) and clearinghouse rules; and
• the Service Documentation.
3. Changes to Services. Bank reserves the right to change the terms, conditions and fees
contained in the Service Documentation for any Service at any time. Bank will provide thirty
(30) days prior notice of any material change; provided, however, that (i) Bank shall provide
ninety (90) days prior notice of any material change, including fees, that would adversely affect
Company and would not be applicable to similarly situated customers of Bank, and (ii) Bank
shall not increase any fee on the Banking Services Proposal dated October 3, 2001, submitted
to Company from the effective date of this Agreement through and until April 30, 2005. Notice
may be provided in writing, electronically or by printing a message on, or enclosing a message
with Company's related account statement or account analysis statement; provided, however,
that notices of material changes, including fees, that would adversely affect Company and
would not be applicable to similarly situated customers of Bank shall be provided in writing to
Company's Administrative Services Director or Finance Director. If Company does not wish to
JB3417Q2.3 Page 2
(Revised 11/15/01)
be bound by such a change, it may discontinue using and terminate the affected Service before
the change becomes effective. If Company continues to use a Service after the change
becomes effective, it will be bound by the change.
4. Term and Termination. This Agreement and all Services provided hereunder will continue in
effect until terminated by Company upon thirty (30) days prior written notice. Bank may
terminate this Agreement and all Services upon ninety (90) days prior written notice. Bank may
immediately terminate this Agreement upon notice to Company if Company is in material
violation of a provision of the Service Documentation. Bank may immediately terminate this
Agreement without notice to Company if Company files, or has filed against it, a petition under
the U.S. Bankruptcy Code or a similar state or federal law. The termination of a Service or this
Agreement will not affect Company's or Bank's rights with respect to transactions which
occurred before termination. Upon termination of a Service, Company will immediately:
• return to Bank any original and all copies of User Guides in its possession, custody or control relating
to the Service;
■ return to Bank the original and any copies of software and other materials and delete any hard disk
data related to the Service; and
■ if requested, certify in writing to Bank that the original and all copies have been returned and the hard
disk data has been deleted.
Unless provided otherwise in a Service Description each additional Service will commence
within a reasonable time after Bank agrees to provide it.
5. Service Fees. Company agrees to pay Bank for each Service in accordance with the fees set
out in the Banking Services Proposal dated October 3, 2001, submitted to Company from the
effective date of this Agreement through and until April 30, 2005, and, thereafter, as agreed to
between the parties in writing, subject to the notice provisions set forth in Section 3 above.
Company also agrees to pay an amount equal to any taxes applicable to each Service, however
designated, exclusive of taxes based on the net income of Bank. Except as otherwise agreed in
writing, all fees and taxes may be periodically debited against Company's accrued earnings
credit. Bank may debit Company's account(s) with Bank for any amount by which the fees or
taxes exceed the accrued earnings credit, or may send an invoice to Company for such amount
which Company agrees to promptly pay. Bank may assess finance charges on any invoiced
amounts that are not paid within 45 days of the date of invoice. Finance charges are assessed
at a rate of 1.5% per month (18% per annum) or the highest amount permitted by law,
whichever is less. Charges for accrued and unpaid interest and previously assessed finance
charges will not be included when calculating finance charges. Payments and other reductions
of amounts owed will be applied first to that portion of outstanding fees attributable to charges
for accrued and unpaid interest and previously assessed finance charges, then to other fees
and charges.
6. Authority to Combine Funds. Company represents and acknowledges that any and all
transfers and commingling of funds required or permitted by a Service, and all other aspects of
the performance of each Service, have been duly authorized by all necessary persons,
including, without limitation, the accountholder of each account related to the Service.
Company further represents and acknowledges that Company has obtained, and will maintain in
its regular business records and make available to Bank upon reasonable demand for a period
of sjk-0) years after the termination of a Service, adequate documentary evidence of such
authorization, executed by the duly authorized officer(s) or other representative(s) of each
accountholder in accordance with that accountholder's organizational requirements. Company
additionally represents and acknowledges that each transfer or commingling of funds required
JB3417Q2.3 Page 3
(Revised 11/15/01)
or permitted by a Service is neither in violation of any of its or its subsidiaries' or affiliates'
internal requirements, nor in violation of any applicable federal, state or local statute, ordinance,
regulation, rule of law, decree, judgment or order of any judicial or administrative authority.
7. Proprietary Property and Confidentiality. Except as may be otherwise provided in Bank's
Service Documentation, all computer programs, systems, reset diskettes and other items
provided by, through or on behalf of Bank with respect to a Service, and all related information,
constitute Bank's proprietary property having great commercial value to Bank. Bank will remain
the sole owner of all such proprietary property and Company will not acquire any proprietary
interest or rights in it as a result of Company's use of any Service. Company will not create or
permit others to create, by reverse engineering or otherwise, the source code or any part of the
source code from the object code of any computer program. Company will not transfer, copy,
alter, modify, reproduce or convey in any manner any computer program, system or other such
proprietary property. Company's right to any User Guide is expressly limited to the right to use
the User Guide as set out in that User Guide. Company will keep the contents of all such
proprietary property confidential and will not permit its employees or agents to disclose, copy,
reproduce, lend, sell, assign, transfer, sublicense or otherwise make any of it available in whole
or in part to any person or entity, including, but not limited to, any of its successors or affiliates,
other than those of its employees who have a need to use proprietary property in connection
with the applicable Service. Company agrees to notify Bank immediately if it knows or suspects
that there has been unauthorized disclosure, possession or use of any computer program or
other proprietary property, and if it is responsible for the unauthorized disclosure, possession or
use, it will, at its expense, promptly:
■ take all reasonable actions, including, but not limited to, court proceedings, to recover possession of,
or to prevent further unauthorized disclosure or use of, any computer program or other proprietary
property; and
■ obtain redress for any injury caused to Bank as a result.
8. Couriers. Company may utilize a courier in connection with a Service and in so doing it agrees
at all times and in all respects that:
• notwithstanding any arrangement through which the courier may be paid, the courier is Company's
agent and not Bank's, and Company and not Bank is responsible for any services performed or
promised and not performed by the courier; and
• Company assumes all risk of loss prior to acceptance of delivery by Bank from the courier and
subsequent to the courier's acceptance of delivery from Bank.
Although Bank may undertake reasonable efforts to assist in any loss recovery, Company
represents and acknowledges that it (and not Bank) will be responsible for all loss recovery
procedures, processes and costs relating to such losses.
9. Third Party Networks. Bank's provision of certain Services is dependent upon its ability to
provide access to third party networks or systems. Unless otherwise provided in the Service
Documentation, Bank will determine the funds transfer, communications, Internet service
providers or other system(s) to be used in performing each Service. In the event that any
network, provider or system is unavailable, or if Bank determines in its discretion that it is unable
to continue to provide access to a network, provider or system, it may, upon notice to Company,
discontinue the affected Service or take such other action as may be reasonable in the
circumstances.
JB3417Q2.3 Page 4
(Revised 11/15/01)
10. Liability.
10.1. Bank will only be responsible for performing each Service as expressly provided in the
Service Documentation, and will only be liable for material losses incurred by Company to the extent such
losses directly result from Bank's negligence or intentional misconduct in performing a Service.
10.2.
IN NO EVENT WILL BANK HAVE LIABILITY FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE OR
INDIRECT LOSS OR DAMAGE WHETHER OR NOT ANY CLAIM FOR SUCH DAMAGES IS BASED ON
TORT OR CONTRACT OR BANK KNEW OR SHOULD HAVE KNOWN THE LIKELIHOOD OF SUCH
DAMAGES IN ANY CIRCUMSTANCES.
10.3. Bank is under no obligation to honor, in whole or in part, any entry, file, batch release,
payment order, transaction or instruction which:
• exceeds Company's collected and available funds on deposit in an account with Bank related to the
entry, file, batch release, payment order, transaction or instruction, unless otherwise provided in the
Service Documentation for the applicable Service;
• is not in accordance with any term or condition applicable to the relevant Service;
• Bank has reason to believe may not be authorized by Company or any third person whose
authorization Bank believes is necessary;
• involves funds subject to a hold, dispute, restriction or legal process Bank believes prevents their
withdrawal;
• would result in Bank exceeding any limitation on its intra -day net funds position established pursuant
to present or future Federal Reserve guidelines;
• would violate any applicable provision of any risk control program of the Federal Reserve or any
applicable rule or regulation of any other federal or state regulatory authority;
• is not in accordance with any other requirement of Bank's applicable policies, procedures or practices;
or
■ Bank has reasonable cause not to honor for its or Company's protection.
10.4. Company agrees to promptly examine each statement received from Bank for a deposit
account related to a Service, and to promptly report any erroneous credit or debit. Company also agrees
that within sixty (60) days after Bank mails or otherwise makes the statement available, Company will
report to Bank any claim for credit or refund due to an erroneous or unauthorized debit, a missing
signature, an unauthorized signature, or an alteration. Statements will be deemed to have been mailed
on the first business day following the statement date. Within 6 months after Bank mails or otherwise
makes the statement available, Company will report to Bank any claim for credit or refund resulting from a
forged, unauthorized, or missing endorsement. Such reports will be made by (i) calling the telephone
number listed on the statement for such purpose and (ii) submitting a written report to Bank as soon as
possible, but in any event, within the time frames described in this Subsection. Without regard to care or
lack of care on the part of Bank, if Bank does not receive notice within the time frames specified in this
Subsection, Bank will be released from all liability for the Items charged to the account and for all other
transactions or matters covered by the statement.
10.5. Company will promptly furnish proof of loss in written form to Bank, and will provide
reasonable assistance to Bank in recovering a loss. If Company is reimbursed by or on behalf of Bank,
Bank or its designee will be subrogated to all rights of Company.
10.6. Company will notify Bank in writing immediately if it becomes aware of any claim of loss
or liability by a third person related to a Service.
JB3417Q2.3 Page 5
(Revised 11115/01)
10.7. Company acknowledges that reconstruction of an event which caused it to suffer
damages becomes difficult and may be inaccurate more than one year following the occurrence of the
event. Accordingly, Bank and Company agree that any claim, action or proceeding against the other for
damages arising from or in any way related to an act or omission of the other in connection with a
Service, including without limitation any claim based on negligence, must be brought within one year from
the date of the act or omission.
10.8. Bank will not have any 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. Bank will make reasonable
efforts to prevent such occurrences.
11. Indemnification. Except to the extent that Bank is liable under the terms and conditions in the
Service Documentation, Company agrees to indemnify and hold Bank, its directors, officers,
employees and agents harmless from all loss, liability, claims, demands, judgments and
expenses:
• arising out of or in any way connected with the performance of a Service (including without limitation,
any warranty made by Bank as the result of a statute, regulation, rule, policy, procedure or guideline
applicable to a Service);
• arising out of or in any way connected with an act or omission of any agent, courier or authorized
representative of Company's; and
• if the Service includes a license or sublicense of any software to Company, arising out of or in any way
connected with the wrongful or unauthorized use of the software and any related materials by
Company, its partners, members, directors, officers, employees or agents or by any other person
gaining access to the software or any related materials through it, or them.
12. Warranty of Compliance. Company acknowledges that a Service may not be used to conduct
any transaction in violation of Federal or state law. Company expressly warrants that a Service
will not be used in a manner which violates any sanction or control administered by the Office of
Foreign Assets Control or Bureau of Export Administration.
13. Affiliates. Company may from time to time desire to obtain a Service under the terms of this
Agreement from a present or future Bank affiliate. Bank will make a reasonable effort to
arrange for the affiliate to provide the Service. With respect to each Service provided by an
affiliate:
• the term "Bank" when used in the Service Documentation will include the affiliate;
• Bank and the affiliate may share any information helpful in providing the Service;
• liability with respect to the Service will be limited solely to the affiliate providing the Service; and
• Company authorizes Bank and the affiliate to initiate such instructions, and to make such debit and
credits, to accounts of Company at Bank and the affiliate as are necessary or appropriate to effect the
performance of the Service.
Nothing in this Section 13 will apply to Bank's or an affiliate's use of agents or independent
contractors to provide all or any portion of a Service.
14. General.
14.1. The Service Documentation will be governed by and interpreted in accordance with
substantive federal laws, regulations and rules and, to the extent such laws, regulations and rules are not
applicable, those of the state in which the principal office of Bank or the affiliate providing the Service is
located. Any Service Documentation or Service which is inconsistent with applicable laws, regulations or
JB3417Q2.3 Page 6
(Revised 11/15/01)
rules will be deemed modified and applied in a manner consistent therewith, and Bank will incur no
liability to Company as a result of the inconsistency or modification and application. Any Service
Documentation deemed unenforceable or invalid will not affect the enforceability or validity of the
remaining Service Documentation.
14.2. The related Service Documentation constitutes the entire agreement between Bank and
Company and supersedes prior oral or written representations, conditions, warranties, understandings,
proposals or agreements regarding a Service.
14.3 Headings do not constitute a part of this Agreement. Portions of this Agreement
designated 4, 5, 7 10, 11, 12 and 14.3 will survive termination of this Agreement.
14.4. Any notice, electronic message, electronic record or other communication may be sent to
Company at its then current address on file with Bank. Company may provide notice to Bank in writing by
mailing, couriering or personally delivering, or if allowed in the Service Documentation, electronically
delivering it to the attention of Company's Relationship Manager at Bank, at the address where Bank's
Relationship Manager is located. If it does, notice will be deemed received when actually delivered.
Bank will be entitled to rely on any written notice or other written communication, or if allowed in the
Service Documentation on any electronic record or electronic message, believed by it in good faith to
have been signed or otherwise authorized by an authorized representative of Company or otherwise
appropriately authenticated and, except as expressly stated in the Service Documentation, shall have no
obligation to verify the signature (including an electronic signature), or other authorization or
authentication. Bank will have a reasonable time after receipt of any notice, message, electronic record
or other communication to act on it. No provision of the Service Documentation may be modified except
in writing signed by the party against whom the modification is to be enforced. No course of dealing or
waiver of any right on one occasion will constitute a modification of the Service Documentation or be a
waiver of the same or any other right on a subsequent occasion.
14.5. Company may not assign or transfer its rights or obligations with respect to any Service
or the related Service Documentation without Bank's prior written consent, which consent will not be
unreasonably withheld. Bank may assign its rights and obligations with respect to any Service or the
related Service Documentation to any successor by merger, consolidation or corporate reorganization.
No person or entity will be deemed to be a third party beneficiary under any Service Documentation.
14.6. Bank may, without notice, refuse to honor any payment, transfer, release or withdrawal
order which would result in an overdraft, even if it has previously allowed overdrafts, unless otherwise
agreed to in writing by the parties. Bank may establish cut -off times, and may change those cut -off times
upon reasonable notice to Company.
14.7. Delivery and use of an informational Service occurs when the information is provided.
14.8. Company represents and acknowledges on Company's behalf and on behalf of
Company's employees and agents, that Bank may monitor, record and retain telephone conversations,
electronic messages, electronic records and other data transmissions at any time without further notice to
anyone, and that Bank will have no liability for doing or failing to do so.
14.9. Neither the provisions of any Service Description nor Bank's performance of any Service
will relieve Company of any obligation regarding the maintenance of records or from employing adequate
audit, accounting and review practices customarily followed by businesses similar to Company. Unless
otherwise provided in the Service Documentation, Company will retain and provide to Bank, upon
request, all information necessary to remake or reconstruct any deposit, transmission, release, file, entry,
batch or order relating to a Service until thirty (30) days after Bank receives the deposit, transmission,
release, file, entry, batch or order.
14.10. Bank may grant credit to Company in connection with a Service, but is not required to do
so. It is never the intention of Bank to violate any applicable usury or interest rate laws. Bank does not
agree or intend to contract for, charge, collect, take, reserve or receive (collectively "charge or collect "),
any amount in the nature of interest or in the nature of a fee, penalty or other charge, which would in any
JB3417Q2.3 Page 7
(Revised 11/15/01)
a
way or event (including demand, prepayment or acceleration) cause Bank to charge or collect more than
the maximum Bank would be permitted to charge or collect by any applicable federal or state law. Any
such excess interest or unauthorized fee will, notwithstanding anything stated to the contrary, be applied
first to reduce the true indebtedness, if any, and any excess amounts will be refunded.
14.11 Unless otherwise specifically defined in a document included in the Service
Documentation for purposes of that document, the term 'Banking Day" means that part of a business day
occurring prior to the cut off time stated in Bank's applicable funds availability policy, and the term
"Business Day" means a day, other than a Saturday, Sunday or day when Federal Reserve Banks are
closed.
Agreed To and Accepted By: Agreed To and Accepted By:
WELLS FARGO BANK, City of Gilroy
NATIONAL ASSOCIATION ( "Company ")
('Bank ")
Name: Carole LaRocca Name: MAt"qe-t-
Title: Vice President Title: Aptjt c I STRftT, vC S[-fZV I c. p-S !7t (t ECTo iz
Name:
Title:
Excluded Services. Each Service listed
below will continue to be governed by an
existing agreement(s) and not by this
Agreement:
2104102
J83417Q2.3 Page 8
(Revised 11/15/01)
_,_.I r
I
AMENDMENT TO MERCHANT AGREEMENT AND OPERATING PROCEDURES
GUIDE BETWEEN (1) WELLS FARGO MERCHANT SERVICES, L.L.C. AND WELLS
FARGO BANK, N.A.; AND (2) THE CITY OF GILROY, CALIFORNIA
This Amendment (the "Amendment ") to the Merchant Agreement and Operating
Procedures Guide (the "Agreement") is entered into between Wells Fargo Merchant Services,
L.L.C., with offices at 265 Broad Hollow Road, Melville, NY 11747 and Wells Fargo Bank,
N.A., with offices at 1200 Montego Way, Walnut Creek, CA 94598 (collectively, "WFMS" or
"We" or "Us ") and the City of Gilroy, California (hereinafter "CITY" or "Merchant" or "You ")
located at 7351 Rosanna Street, Gilroy, CA 95020.
WITNESSETH:
WHEREAS, WFMS and CITY have fully negotiated in good faith and agreed to revise
and/or modify certain provisions of the Agreement, and now desire to amend the Agreement as
set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and benefits to be derived
from the Agreement and this Amendment and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged by both parties, WFMS and CITY agree the
terms set forth below shall be incorporated into, and become a part of, the Agreement and the
parties further agree to be legally bound by the following new terms and to amend the
Agreement as follows:
Section 17. 1, relating to exclusivity, is deleted in its entirety.
2. Section 18.4 is deleted in its entirety. Furthermore, notwithstanding any other
provision in the Agreement, the discount rate and pricing set forth by WFMS in
its Response to the CITY's Request for Proposals shall remain fixed for the initial
term of three (3) years.
Section 20.2 — insert the following new text after the first sentence: "We represent
and warrant that the Services provided hereunder shall be performed: (i) in good
faith and in accordance with industry standards; (ii) in compliance with all
applicable Federal, State, and local laws, ordinances, and regulations and
Association rules and regulations; and (iii) in compliance with and pursuant to the
terms of this Agreement."
4. Section 20.4 — Remove language after roman numeral two (II) referring to fees
received during the preceding 12 months. Also, add the following new text after
present language in 20.4: "NOTWITHSTANDING ANYTHING IN THIS
AGREEMENT TO THE CONTRARY (INCLUDING BUT NOT LIMITED TO
SECTION 26, BUT SPECIFICALLY EXCLUDING, HOWEVER, THE CITY'S
LIABILITY FOR ANY AMOUNTS SET FORTH IN SECTIONS 18 OR 19,
INCLUDING, WITHOUT LIMITATION, LIABILITY FOR CHARGEBACKS,
ASSOCIATION FINES, OR FEES FOR THE SERVICES), CITY'S
CUMULATIVE LIABILITY FOR ALL LOSSES, CLAIMS, SUITS,
CONTROVERSIES, BREACHES OR DAMAGES FOR ANY CAUSE
WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, THOSE ARISING
OUT OF OR RELATED TO THIS AGREEMENT) AND REGARDLESS OF
THE FORM OF ACTION OR LEGAL THEORY, SHALL NOT EXCEED
$50,000.
5. Section 23.2 — replace second sentence with the following: "Upon the expiration
of the initial three (3) year term, this Agreement may be extended for a
subsequent three (3) year term upon the mutual written agreement of both
parties."
6. Section 26.2 — replace entire section with the following text: "We agree to defend,
indemnify, protect and hold you and your agents, officers and employees,
harmless from and against any and all claims asserted or liability established for
damages or injuries to any person or property, including injury to Our employees,
agents or officers which arise from or are connected with or are caused or claimed
to be caused by the acts or omissions of Us, and our agents, officers or employees,
in performing the work or services herein, and all expenses of investigating and
defending against same; provided, however, that Our duty to indemnify and hold
harmless shall not include any claims or liability arising from the established sole
negligence or willful misconduct of you or your agents, officers, or employees."
7. Section 27.1 is deleted in its entirety. All references to liquidated damages in the
Application are also deleted.
8. Section 27.2 — replace "we" with "either party" and replace "30" with "90 ".
9. Notwithstanding Section 35 (the integration clause), the parties agree that all
representations made by WFMS on pages 13 and 14 of its Response to the
CITY's Request for Proposals are hereby incorporated into, and made a part of,
the Agreement.
10. Delete Section 39 relating to Arbitration in its entirety.
2
11. Any other provisions of the Agreement or Application which are not specifically
mentioned herein remain unchanged and in full force and effect. In the event of
any conflict between the provisions of this Amendment and the Agreement or the
Application, this Amendment shall control.
IN WITNESS WHEREOF, the parties have caused their duly authorized representatives
to execute this Amendment as of the '' day of AP2, L— , 2002.
City of Gilroy, California
Title: Administrative Services Director
Print Name: Michael Dorn
Wells Fargo Merchant Services, L.L.C.
and Wells Fargo Bank, N.A.
By:
f-��
Title: �;' / / /i�Ze �� D� ��'�✓
Print Name: 1_�ie ::
Y
Date: — 2 3' 0 Z Date: �
Wells Fargo Bank, N.A.
Wholesale Compliance
Public Funds Department
420 Montgomery, 11th Floor
San Francisco, CA 94163
December 4, 2002
City of Gilroy
Attn: Finance Department
7351 Rosanna St
Gilroy, CA 95020
Dear Wells Fargo Customer,
Enclosed please find a Contract for Deposit of Money and a Resolution of the Loan Committee of the Board of Directors
of Wells Fargo Bank, National Association adopting The Contract for Deposit of Money between the Bank and City of
Gilroy.
Please contact me directly at 415- 222 -3309 if you have questions regarding your collateral position or any other public
funds issues.
Sincerely,
Alex Villern
Assistant Vice President
Enc
• 19Y.11
Contract for Deposit of Moneys
THIS CONTRACT, relating to the deposit of moneys, is made as of the q%14 day of FC1.3f&,01i
200, between ' %7�`,����L /,% ( "Treasurer ") acting in his or her official capacity as Treasurer of
City of Gilroy ( "Depositor'), and WELLS FARGO BANK, NATIONAL ASSOCIATION ( "Bank "), having a
shareholder's equity of $13,051,000,000.00 on December 31, 2000, and is made with reference to the following
facts.-
WHEREAS, the Treasurer proposes to deposit in the Bank from time to time, moneys in his or her custody in
an aggregate amount on deposit at any one time not to exceed the total shareholder's equity of the Bank, and said
moneys will be deposited subject to Title 5, Division 2, Part 1, Chapter 4, Article 2 (commencing with Section 53630)
of the Government Code of the State of California (the "Local Agency Deposit Security Law ").
WHEREAS, the Government Code requires the Treasurer to enter into a contract with the Bank setting forth
the conditions upon which said moneys are deposited.
WHEREAS, in the judgment of the Treasurer, this Contract is to the public advantage.
NOW, THEREFORE, the parties agree as follows:
1. This Contract cancels and supersedes any previous contracts between the Treasurer and the Bank
relating to the method of collateralization of Depositor's deposits. To the extent not inconsistent herewith, any such
deposit shall be subject to the terms and conditions of the Bank's standard disclosure statement (as in effect from
time to time) for deposits of that type.
2. This contract, but not deposits then held hereunder, is subject to termination by the Treasurer or the Bank
at any time upon 30 days' written notice. Deposits may be withdrawn in accordance with the agreement of the
parties and applicable federal and state statutes, rules and regulations. This contract is subject to modification or
termination upon enactment of any statute, rule, or regulation, state or federal, which, in the opinion of the
Administrator of Local Agency Security of the State of California (the "Administrator "), is inconsistent herewith,
including any change relative to the payment of interest upon moneys so deposited by the Treasurer. The
Treasurer may withdraw Depositor's deposits from the Bank immediately upon receiving notice from the
Administrator that the Bank has failed to pay assessments, fines or penalties assessed by the Administrator. The
Treasurer may immediately upon receiving notice from the Administrator withdraw authorization for the placement of
securities with the Agent of the Bank in the event that the Agent of the Bank fails to pay fines or penalties assessed
by the Administrator.
3. Interest shall accrue on any moneys so deposited as permitted by any act of Congress of the United States
or by any rule or regulation of any department or agency of the Federal Government. If interest may legally be paid
on the account into which the moneys are deposited, then all moneys deposited shall bear interest at a rate agreed
upon by the Treasurer and the Bank.
4. The Bank shall issue to the Treasurer for each deposit a receipt on a form agreed to by the Bank and the
Treasurer, stating the interest to be paid (if any), the duration of the deposit (if appropriate), the frequency of interest
payments (if any) and the terms of withdrawal. Each such deposit receipt is by reference made a part of this
contract.
5. The Bank will maintain at all times with the Agent of the Bank as security for Depositor's deposits: (a) eligible
securities of the classes described in Government Code Section 53651 (except subdivisions (m) and (p)) having a
market value at least 10% in excess of the total amount of deposits secured by those securities, (b) eligible
securities of the class described in subdivision (m) of Government Code Section 53651 having a market value at
least 50% in excess of the total amount of deposits secured by those securities and (c) eligible securities of the
class described in subdivision (p) of Government Code Section 53651 having a market value at least 5% in excess
of the total amount of deposits secured by those securities. If the Administrator determines that a security is not
qualified to secure public deposits, the Bank will substitute other securities to comply with the requirements of this
Paragraph.
6. The Treasurer hereby waives security for that portion of the total amount on deposit which is insured
pursuant to Federal law.
7. The Agent of the Bank, which the Treasurer and the Bank hereby authorize to hold the eligible securities
posted as collateral under this contract, is BNY WESTERN TRUST COMPANY. The Agent of the Bank has filed
with the Administrator an agreement to comply in all respects with all provisions of the Local Agency Deposit
Security Law.
8. Authority for placement of securities for safekeeping in accordance with Government Code Section 53659
is hereby granted to the Agent of the Bank, including placement with any one or more Federal Reserve Banks or
branches thereof.
9. If the Bank fails to pay all or part of any moneys of the Depositor on deposit with the Bank which are
subject to this contract when ordered to do so in accordance with the terms of withdrawal set forth on the applicable
deposit receipt, the Treasurer will immediately notify the Administrator in writing. Action of the Administrator in
converting the collateral required by Paragraph 5 above for the benefit of the Depositor is governed by Government
Code Section 53665.
10. The Bank may add, substitute or withdraw eligible securities being used as security for deposits made
hereunder in accordance with Government Code Section 53654, provided the requirements of Paragraph 5 above
are met.
11. The Bank shall have and hereby reserves the right to collect and retain for the Bank's own account the
interest or income on the securities, except in cases where the securities are liable to sale or are sold or converted
in accordance with the provisions of Government Code Section 53665.
12. The Bank will pay all expenses incurred in transporting eligible securities maintained as collateral for
moneys on deposit to and from the Agent of the Bank. The Depositor will pay (or promptly reimburse the Bank for
or otherwise compensate the Bank for) all expenses incurred in transporting all moneys deposited with the Bank to
and from the Depositor's offices. The Depositor will pay the Bank (or otherwise compensate the Bank for) the fees
and charges stated in the Bank's then current Schedule of Charges (unless the Bank and the Treasurer otherwise
agree) for handling, collecting and paying all checks, drafts and other exchange or securities according to the
Bank's standard practices.
13. This contract, the parties hereto, and all deposits governed by this contract shall comply with and be
subject in all respects to the Local Agency Deposit Security Law, and all other state and federal laws, statutes, rules
and regulations applicable to such deposits, whether now in force or hereafter enacted to promulgated, all of which
are by this reference made a part hereof.
IN WITNESS WHEREOF, the Treasurer in his or her official capacity on behalf of the Depositor, and the Bank
by its duly authorized officer, have signed this contract in triplicate as of the day and year first above - mentioned.
TREASURER OF:
City of Gilrov
Name of Local Agency Depositor
By: 1
WELLS F RGO BANK, ATIQNAL ASSOCIATION
By: c-
`fitle:
docs981.calM.doc (rev. 3/2000)
L9
WELLS FARGO BANK, NATIONAL ASSOCIATION
SECRETARY'S CERTIFICATE
I, Robert S. Singley, Secretary of Wells Fargo Bank,
National Association, a national banking association (the
"Association "), hereby certify that the resolutions attached
hereto were duly adopted by the Loan Committee of the Board of
Directors of the Association by unanimous written consent dated
as of November 21, 2002, and that the governmental agency named
in such attachment was one of the governmental agencies named in
such resolutions. I further certify that the pledge agreement
attached hereto was one of the pledge agreements attached to such
consent and referred to therein, which pledge agreement was
accordingly duly approved by the aforesaid Loan Committee, is
part of the minutes of such Committee and, continuously from the
time of its execution, is an official record of the Association.
IN WITNESS WHEREOF, I have hereunto set my hand and the
seal of the Association this 26th day of November 2002.
[Seal]
G: \LAWDEPT\ CORPORATE\ SINGLEY \CERTS \RESOLTNS \BKLONCOM.DOC
Robert S. Sin le
Secretary
Approval of Pledge Agreements with Governmental Agencies
WHEREAS, in connection with the acceptance of deposits
by this Association from the governmental agencies named below,
this Association has entered into agreements on or as of the
dates indicated pursuant to which this Association has pledged
collateral to secure its obligations to repay such deposits:
City of Gilroy
February 4, 2002
WHEREAS, in order to satisfy one of the requirements
for the enforceability against the Federal Deposit Insurance
Corporation of a pledge of collateral established by the Federal
Deposit Insurance Act, codified at 12 U.S.C. §1823(e), the Board
of Directors of this Association by resolution adopted July 21,
1999, delegated to this Committee the authority to approve the
terms of such pledge agreements on behalf of the Board of
Directors;
WHEREAS, such pledge agreements have been submitted to
this Committee and are attached hereto; and
WHEREAS, this Consent and the pledge agreements
attached hereto are part of the minutes of this Committee, and
such pledge agreements have been, continuously from the time of
their execution, official records of this Association;
NOW, THEREFORE, BE IT RESOLVED, that this Committee,
having reviewed the pledge agreements attached hereto and acting
on behalf of the Board of Directors, hereby authorizes, approves
and ratifies the terms and conditions of such agreements as well
as the execution and delivery thereof.
G: \LAWDEPT\ CORPORATE\ SINGLEY \CERTS \RESOLTNS \BKLONCOM.DOC
Carole La Rocca Government Banking
Vice President MAC A0112 -102
550 California Street
10th Floor
San Francisco, CA 94104
415 396 -7485
415 646 -8767 Fax
carole.la—rocca@wellsfargo.com
February 7, 2006
Cindy Murphy, CPA
Finance Director
City of Gilroy
7351 Rosanna Street
Gilroy, CA 95020
RE: City of Gilroy's Contract Renewal
Dear Cindy:
Wells Fargo is pleased to extend the City of Gilroy's existing banking services contract
for 2 years. All pricing will remain fixed for that period as quoted in the City's original
2001 banking services proposal, expiring December 31, 2007.
Enclosed are two copies of this letter. Please sign and return one original to me.
Thank you your continued confidence in Wells Fargo as the City of Gilroy's bank of
choice.
Regards,
CITY OF GILROY
ADMINSTRATIVE SERVICES DEPARTMENT
FINANCE DIVISION
MEMORANDUM
TO:
JAY BAKSA, CITY ADMINISTRATOR
FROM:
RAYMOND CHIN, FINANCIAL ANALYST
SUBJECT:
RENEWAL OF BANKING SERVICES CONTRACT
DATE:
2/14/2006
CC:
CINDY MURPHY, FINANCE DIRECTOR
PHAEDRA HERNANDEZ, PURCHASING COORDINATOR
Recommendation:
The Finance Division staff recommends the renewal of the Wells Fargo Banking Services
contract.
Discussion:
The City of Gilroy contracted with Wells Fargo Bank for banking services in 2002. At that time,
contract duration for these services was specified for three (3) years, with an option to renew
based upon successful performance. The initial contract has since expired in 2005. At this
time, Wells Fargo Bank is requesting to extend the banking services contract for an additional
two (2) years, through December 31, 2007. Wells Fargo Bank is offering to have all pricing
remain fixed for the extended period as quoted on their original 2001 banking services proposal.
The Finance staff is recommending that the City accept the renewal for banking services with
Wells Fargo Bank because of the excellent level of service, pricing and products provided by
the bank. If you concur, please sign both copies of the attached renewal notice from Wells
Fargo Bank and return to me. Thank you.
Respectfully submitted,
Raymond Chin
Financial Analyst