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1996-098-Execute An Agreement With Bank Of The West For Election Banking ServicesRESOLUTION 1996 -98 RESOLUTION OF THE TOWN OF LOS GATOS AUTHORIZING THE TOWN MANAGER TO EXECUTE AN AGREEMENT WITH BANK OF THE WEST FOR ELECTRONIC BANKING SERVICES WHEREAS, the Town of Los Gatos desires to enact an electronic pay deposit system to process biweekly staff payroll. RESOLVED, by the Town Council of the Town of Los Gatos, County of Santa Clara, State of California, that the Town of Los Gatos enter into a contract /agreement with Bank of the West for electronic banking services, and that the Town Manager is authorized, and is hereby directed, to execute said agreement (Exhibit A) in the name and on behalf of the Town of Los Gatos. PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Los Gatos, California, held on the 5th day of August, 1996 by the following vote: COUNCIL MEMBERS: AYES: Randy Attaway, Joanne Benjamin, Steven Blanton, Linda Lubeck NAYES: None ABSENT: Patrcik O'Laughlin ABSTAIN: None SIGNED: _ MAYOR OF THE T N OF LO GATOS LOS GATOS, CALIFORNIA ._ ATTEST: CLERK OF THE TOWN OF LOS 'G TOS LOS GATOS, CALIFORNIA BANK OF THE WEST ELECTRONIC FUNDS TRANSFER SERVICE AGREEMENT This Agreement is entered into this day of , 1996, by and between ( "COMPANY ") and Bank of the West ( "BANK -). BANK, a state banking association, is a member of the Calwestem Automated Clearing House Association ( "CACHA "), a California not - for - profit association. CACHA provides, through its members, an automated system for paying funds to and collecting funds from accounts at certain financial institutions. BANK is willing to serve as an Originating Bank to process preauthorized credit and debit entries according to the rules, operating regulations, guidelines and practices established by CACHA and National Automating Clearing House Association ( NACHA) ( "RULES "), as may be from time to time amended. BANK shall not generate advices of electronic credits and /or debits, except to the extent it is required to do so. COMPANY has requested BANK to act as its Originating Bank in processing and transmitting to CACHA credit or debit entries as prescribed within the RULES. The term "CUSTOMER" shall be deemed to mean a person who has authorized COMPANY to initiate a credit or debit entry to an account with BANK or with another Depository Financial Institution. With respect to debit entries, CUSTOMER will be deemed to mean all persons whose signatures are required to withdraw funds from an account for the purposes of the warranty provisions of Section IV of RULES. COMPANY and BANK agree as follows: ON -US DEBITS AND CREDITS 1. Since BANK is processing preauthorized entries to another account at Bank, BANK agrees to assume all the rights and obligations of both an Originating Bank and a Receiving Bank to the extent applicable; COMPANY agrees to assume the rights and obligations of a Company, as all such terms are defined within the RULES. Company agrees to make the same warranties to the BANK as BANK would be required to make pursuant to the RULES. CACHA AUTOMATED CLEARING HOUSE RULES 2. The RULES, as may be amended from time to time, are incorporated into, and made a part of, this Agreement by this reference. COMPANY agrees to be bound by and to comply with the RULES insofar as said RULES may be applicable to COMPANY or to any transaction contemplated under this Agreement. A copy of the RULES as presently in effect is attached (Exhibit A). COMPANY waives receipt of revisions of said RULES. 3. In the event that the operating rules of a local or regional automated clearing house, or the arrangements between BANK and a correspondent bank, are more restrictive than, or are at variance with the RULES, COMPANY agrees to be bound by such more restrictive or varying rules, if such rules apply. INDEMNITY BY COMPANY 4. COMPANY hereby agrees to indemnify and hold BANK harmless against and in respect to any and all claims, demands proceedings (including without limitation, costs and expenses of litigation and reasonable attorney's fees), losses, liabilities, expenses of litigation and reasonable attorney's fees), losses, liabilities, expenses of any nature whatsoever, and damages, including consequential, special, and punitive damages, directly or indirectly related to this agreement, even those from anyone else, if such claims, etc., result form the failure of COMPANY or anyone else acting on behalf of COMPANY, including those acting as its processing agent, to comply with: (a) this agreement, including any breach of its warranties hereunder; (b) the RULES; and (c) any other agreement(s) between COMPANY and CUSTOMER. Company indemnity shall also include any actions by the parties named in paragraph 88, unless such claims, etc. caused by those parties arise because of Bank's gross negligence or willful misconduct. shall also include any actions by the parties named in paragraph 86, unless such claims, etc. caused by those parties arise because of Bank's gross negligence or willful misconduct. WARRANTIES BY COMPANY 5. The COMPANY represents and warrants to the BANK that, in cases of electronic credit entries, each entry delivered to the BANK: A) contains correct information B) is fully and validly authorized by CUSTOMER to whom each entry pertains; C) is timely under the terms and provisions of the RULES and of this agreement together with any schedules, supplements or amendments hereto: D) is delivered to BANK in the form and format detailed in the attached Exhibit B and incorporated herein by reference; E) is for a sum due and owing to a CUSTOMER. In the event that COMPANY initiates credit entries representing the payment of salary or wages to the accounts of its employees, COMPANY agrees to fumish each employee with a detailed statement of eamings no later than the day said employee's account is due to be credited by BANK. 6. COMPANY represents and warrants to BANK that, in cases of electronic debit entries: A) each entry initiated by COMPANY is for a sum due and owing the COMPANY directly or as an authorized agent; B) COMPANY has received a signed written agreement CAUTHORIZATION ") from CUSTOMER according to the RULES, with a copy thereof given to the CUSTOMER, authorizing the COMPANY to make prearranged debits from CUSTOMER's account; C) copy of each AUTHORIZATION is to be retained by COMPANY for a period of six (6) years after termination of AUTHORIZATION. D) COMPANY is solely responsible for and is complying with all the laws and regulations goveming the initiation of preauthoriied electronic debits, including but not limited to the Electronic Fund Transfer Act of 1978 and Federal Reserve Regulation E, in particular sections 205.10 (b) and (d), as currently in effect and as amended; E) at the time a debit entry is processed by BANK and any receiving financial institutions, the AUTHORIZATION has not been terminated with respect to such electronic debit entry; provided, however, that this latter warranty shall not apply if, at the time of processing the electronic entry, the receiving bank has actual knowledge of a termination of the Authorization; F) COMPANY has complied with the applicable requirements of Section II of the RULES. 7. With respect to each CUSTOMER for whom an entry is transmitted to or by BANK for COMPANY, COMPANY has transmitted a prenotification to BANK or the receiving financial institution in accordance with the RULES, and has not received a prenotification rejection notice from BANK or such receiving financial institution. WARRANTIES OF BANK OF THE WEST 8. The obligations and responsibilities of BANK shall be limited to those specified in this Agreement or amendments thereto. BANK hereby expressly disclaims any and all other or different warranties, representations or guaranties, express or implied, oral or written, regarding its responsibility or liability for performance under this Agreement. This warranty states all warranties and representations made by BANK in connection with this Agreement and transactions contemplated under this Agreement. A) BANK warrants solely that it shall exercise reasonable care in processing in accordance with this Agreement and RULES all entries which are transmitted to it by COMPANY, provided that such entries and the transmittal thereof by COMPANY are in accordance with this Agreement and RULES. B) COMPANY agrees and acknowledges that BANK shall have no liability whatsoever arising out of any action or failure to act by BANK, a correspondent bank, the ACH, CACHA, NACHA, a regional or local automated clearing house, or any other third party in connection with this Agreement or any transaction contemplated under this Agreement unless such liability arises because of BANK's gross negligence or willful misconduct. In no event shall BANK be liable for any indirect, special or consequential damages, even if the BANK is advised of the possibility of such damages. C) Within the limitations of sections A and B of this paragraph, recovery for any loss or damage arising out of or related in any way to this agreement shall be limited solely to reimbursement of the amount in question together with interest not exceeding the average Fed Funds Rate for the period on the amount in question. COMPANY ACCOUNT: CHARGE BACKS 9. COMPANY will maintain a demand deposit account with BANK ( "COMPANY ACCOUNT "), in which COMPANY will maintain sufficient collected balances to cover entries processed and service charge fees levied. Should COMPANY fail to have on deposit sufficient collected funds, BANK shall have no obligations or liabilities whatsoever to discharge its obligation under this agreement. Amounts collected by BANK for COMPANY pursuant to this Agreement shall be deposited in the COMPANY ACCOUNT. COMPANY shall have the right to withdraw funds so collected only after and only to the extent that BANK has received a settlement for entries, which settlement has become final. COMPANY hereby authorizes BANK to credit or debit COMPANY ACCOUNT for the amount of any entry returned or charged back to BANK or any adjustment memorandum accepted by BANK pursuant to the RULES, the amount of an "on us" entry as to which a depositor of BANK has followed the procedure set forth in Section Vlll (A) of the RULES. 10. Schedule for Processing Entries A) COMPANY will prepare and submit all electronic entries to BANK in accordance with Exhibit "B ". If any information is not readable, out of balance, or unprocessable, it is the responsibility of COMPANY to correct and resubmit the information to BANK. Exhibit B may be amended by BANK's providing written notice to CUSTOMER; such amendment shall be effective on date mailed. B) Notice of non "on us" entries returned to BANK or charged back to BANK pursuant to the RULES and of "on us" entries returned or dishonored by BANK or as to which a depositor of BANK has followed the procedure set forth in Section VIII (A) of the RULES, shall be given in accordance with the time specified in RULES. BANK assumes no other responsibility with respect to such rejected and/or returned entries. COMPANY is responsible for remaking and resubmitting any returned or rejected entry in accordance with RULES. If such returned or rejected entry was for CUSTOMER, COMPANY shall be totally and solely responsible for insuring receipt of these payments by CUSTOMER. AUTHORIZATION OF TRANSACTIONS 11. COMPANY shall provide, on forms supplied by BANK (Exhibit C attached), a certification of signatures of one or more persons authorized by COMPANY (an "Authorized Person) to sign and transact business and to give all instructions and directions to BANK required by the activities contemplated by this agreement; and COMPANY agrees to advise BANK in writing upon the termination of any such authority and to certify to BANK in writing upon the termination of any such authority and to certify to BANK in writing any newly authorized individuals. Authorization and the signatures of each Authorized Person shall be certified by the Secretary of COMPANY, the due election, incumbency, identity and signature of whom shall be certified to BANK by a certificate executed by another officer of COMPANY, All entries, prenotifications, notices and other communications by COMPANY to BANK shall be executed by, or accompanied by a transmittal letter or AUTHORIZATION executed by an Authorized Person. BANK is hereby authorized to act or refrain from acting on the signature of an Authorized Person. BANK shall be entitled to rely on any writing bearing a signature believed by it to be that of an Authorized Person, and any such writing shall be deemed for purposes of the Agreement to have been executed by an Authorized Person. COMPANY agrees, upon request of BANK or CUSTOMER's Depository Financial Institution or regulatory authority to provide copy of valid CUSTOMER AUTHORIZATION and other information underlying the credit or debit entries. ADVERTISING 12. No advertising or publicity concerning these arrangements in which the name of BANK is used will be undertaken without the prior written approval of BANK. FEES AND CHARGES 13. Schedule of Fees: COMPANY agrees to pay BANK fees and charges for services rendered by BANK pursuant to this Agreement in accordance with the Fee Schedule, attached hereto as Exhibit "D" and incorporated herein by this reference, BANK may deduct the amount of such fees and charges each month from COMPANY ACCOUNT. Except as otherwise provided in Exhibit "D ", BANK may amend any part of said Fee Schedule by mailing written notice of any such amendment at least thirty (30) days prior to the effective date of such amendment. Such notice shall state the effective date of the amendment. TERMINATION 14. Either party may immediately terminate this agreement by delivering to the other party notice of such termination. Any obligation or liability arising prior to such termination shall continue and survive such termination. NOTICE 15. Any notice required or permitted to be given under this Agreement shall be in writing, and shall be delivered or sent by United States mail, postage prepaid, and, if to Bank of the West, addressed to: Bank of the West Business Services, 9- 184 -3E 1450 Treat Blvd. Walnut Creek, CA 94596 and, if to COMPANY, addressed to: ATTN7 or to such other address or person as either party from time to time may designate for receipt of notice by it. Any change in the address to which or the person to whom notice is to be directed will be effective only after such party actually receives notification or the change. GOVERNING LAW 16. This Agreement shall be governed for all purposes by and construed in accordance with the laws of the State of California. Any suit or action to enforce or obtain a declaration of any right or obligation hereunder shall be brought in a court of competent jurisdiction in Santa Clara County, California and the parties hereby consent to the jurisdiction of such courts for such purposes. ENTIRE AGREEMENT 17. This Agreement embodies the entire understanding and agreement of the parties with respect to the provision of services by BANK to COMPANY. This Agreement may be amended only in writing signed by both parties. TOWN OF LOS GATOS (COMPANY) By Title BANK OF THE WEST (BANK) By Title Dated 1996 Dated 1996 By signing below, I acknowledge receipt, not only of this contract, but also of the RULES (Exhibit A), the Input and Change Schedule (Exhibit B) and the Certificate of Resolution of corporate Board of Directors and/or Certification of Signatures (Exhibit C) and the Fee Schedule (Exhibit D). TOWN OF LOS GATOS By Title