HomeMy WebLinkAboutResolution - 99-60 RESOLUTION NO. 99-60
RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF SAN JAC'INTO, CALIFORNIA AUTHORIZING
AN ORIGINATION AGREEMENT FOR AUTOMATED CLEARING
HOUSE SERVICES WITH
THE BANK OF HEMET
WHEREAS, the City Council has reviewed copies of the proposed Origination Agreement for
Automated Clearing House Origination Services (the "Agreement"), to be entered into by and
between the City and the Bank of Hemet ( `Bank"); and
WHEREAS, the Council has determined that its participation in the Bank's Automated Clearing
House Origination Services ("ACH Origination Services") will be on the terms and conditions set
forth in the Agreement;
NOW, THEREFORE, IT IS HEREBY RESOLVED:
1. It is in the best interest of the City to participate in the ACH Origination Services, such
f participation to be on the terms and conditions set forth in the Agreement; and
I� 2. The Council authorizes and directs an authorized officer of the City, for and on behalf of the
City to negotiate, execute and deliver the Agreement and any renewals or amendments thereof,
with such terms, covenants, and conditions as such officer or officers executing the Agreement on
behalf of the City may approve, such approval to be conclusively evidenced by the execution and
delivery of the Agreement; and
3. The Council has considered the security procedures contemplated by the Agreement, and finds
that such security procedures are commercially reasonable procedures for verifying that a Request
or other communication purporting to have been issued by the City as originator is in fact a
Request of the City. In reaching this determination, the Council has considered the size, type and
frequency of ACH Origination Services that the City anticipates issuing to the Bank; and
4. The Council is aware that the Bank may have available alternative security procedures that
may provide a greater degree of certainty for verification of the authenticity of Entries, and
authorizes and directs an authorized officer of the City to disclose to the Bank the size, type and
frequency of Entries that the City anticipates issuing to the Bank, to review alternative security
procedures available from the Bank, and to consent to and agree to the use of the security
procedures set forth in the Agreement as submitted to the Council only after determining that
such procedures are appropriate for the City, such determination to be conclusively evidenced by
the execution and delivery of the Agreement; and
5. The Council authorizes an authorized officer in connection with the Agreement (a) to initiate,
cancel, conform or verify the authenticity of instructions to the Bank for ACM Origination
Services, whether given orally, electronically, written or by facsimile instructions; and (b)to
designate one or more persons, authorized to perform any of the foregoing and to revoke any
authorization granted to any such persons, as he or she deems appropriate; and
6. The Council authorizes an authorized officer in connection with the Agreement to delegate any
ofthe authorities granted to him or her under this resolution to one or more persons and to
revoke any authorization granted to any such person, as he or she deems appropriate; and
7. The Bank is authorized to act and rely on this resolution until it actually receives written notice
of its amendment or revocation; and
8. As used in this Resolution, the term, "authorized officer of the City" shall mean the following
acting separately:
Title Name Signature Initial
a. Interim Finance Director George H. Kaenel
b. Accountant Ray Bouzaeb
c. City Manager James S. Mocalis
d. Mayor Patrick A. Williams
e. Vice Mayor Jim Ayres ril
APPROVED AND ADOPTED this 16th day of?cernber2, 1 9. '
Ayes: Ayres, Buydos, Conner, Good and Williams
Noes: None
Abstain: None
Absent: None
Mayor
ATTEST:
Beti An Hynes, City Clerk
n
C1 Jerk
The Bank of Hemet Origination Agreement
FOR AUTOMATED CLEARING HOUSE SERVICES
Credit Origination
THIS AGREEMENT is made on 12/6 19 99 among
City cf San Jacinto ("Company"), and The Bank of Hemet and it's
wholly owned subsidiary Banklink Corporation("Bank").
WHEREAS, Bank is a Participating Depository Bank("Participating Bank")of the Western
Payments Alliance("WesPay")and may initiate electronic fund transfer entries ("Entries")by means of
the Automated CIearing House.
WHEREAS, Company("Originator') desires to initiate Credit Entries through Bank
("Originating Depository Financial Institution") for deposit of funds to the accounts of Company's
employees,customers and other parties ("Receivers")maintained at Back and other Participating
Institutions ("Accounts"). Such Entries may be referred to herein as "Credit Entries."
NOW,THEREFORE,Bank and Company agree as follows:
1. Rules. Company shall comply with the Operating Rules of WesPay and the Operating
Rules of the National Automated Clearing House Association("NACHA")in existence as of the date of
this Agreement and as amended from time to time(herein collectively referred to as the "Rules"). The
terms of this Agreement shall in no way limit Company's obligation of complying with the Rules.
Unless otherwise defined herein, capitalized terms shall have the meanings provided in the Rules. The
term "Entries" shall have the meaning provided in the Rules and shall also mean(i) the data received
from Company hereunder from which Bank prepares Entries, and (ii) for the purposes of Sections 2.5,
8.3 and 8.4 any request from Company for reversal of an Entry.
2. Delivery of Entries to Bank_
2.1 Delivery Requirements. Company will be required to complete successfully any
required implementation testing prior to commencement of Entries contemplated by this Agreement. All
Entries shall be delivered by Company to Bank at the location(s)and in compliance with the Formatting
and other requirements set forth in Schedule A attached hereto ("Delivery Requirements").
Company directs authorized officer(s) of the Company to designate delivery method of Credit Entries
via( ) Sterling ACH Seflware or( } Other communications software. The total dollar amount of
Entries transmitted by Company to Bank on any one day("exposure limits' shall not exceed amount set
forth on Schedule A Without prior approval from Bank.
2.2 Security Prucedures. Company and B&uk sliall comply with the security procedure
requirements descrihed in Schedule B attached hereto ("Security Procedures")with respect to Entries
transmitted by Company to Bank.
2.3 Receiver Authorizations and Record Retention. Before the initiation by
Company of the first.Entry to a Receiver's Account, Company shall obtain from such Receiver an
authorization to initiate one or more Entries to the Receiver's Account, which authorization shall comply
with the Rules. Each Entry thereafter shall be made pursuant to such authorization, and no Entry shall
0 Ober2,19% t
be initiated by Company after such authorization has been revoked or the arrangement between
Company and such Receiver has terminated. Company shall retain Receiver authorizations for two
yeas after,they are terminated and other documents related to Entries for a period of two years.
Company shall immediately punish such authorizations and documents to Bank upon Bank's request.
2.4 Prenotification. Bank may at its sole option require Company to deliver a
prenotification,in a format and in the medium set forth in Schedule A and/or prescribed by the Rules to
Bank to be transmitted to the Participating Insttution at which the Receiver's Account is held within the
time limits set forth in the Rules. If Company has received notice that such prenotification has been
rejected within the prescribed period by the Receiving Depository Financial Institution ("RDFI"),
Company shall not initiate any corresponding Entry until the cause for rejection has been corrected and
another prenotification has been submitted to and accepted by the RDFI in accordance with the Rules.
2.5 Cancellation and Amendment of Entries; Reversals. Company shall have no right
to cancel or amend an Entry after it is delivered to Bank. Bank,however, shall use reasonable efforts to
act on a request by Company for reversal of an Entry file pursuant to the Rules;provided,however,thaE
Bank shall not be liable for interest or losses if such reversal is not effected. Any request by Company
for reversal of an Entry must comply with the Delivery Requirements and the Security Procedures.
Company shall reimburse Bank for any expenses,losses or damages Bank may incur in effecting or
attempting to effect Company's request for the reversal of an Entry.
3 Processing,Transmittal and Settlement by Bank
3.1 Processing,Transmittal and Settlement. Except as provided in Sections 4,5 and
9,Bank shall (i) process Entries received from Company to conform with the requirements set forth in
this Agreement,(6) transmit such Entries as an Origirratiag Depository Financial Institution ("ODFI")
to an Automated Clearing House processor("ACH") selected by Bank in its sole discretion, and (iii)
settle for such Entries as provided in the Rules.
3.2 Timing. Bank shall transmit such Entries to the ACH by the cut-off of the ACH set
forth in Schedule A attached hereto two business days prior to the Effective Entry Date shown in such
Entries, provided(i) such Entries are received from Company by Bank's related cut-off time set forth in
Scbcdule A on a business day,(ii) the Effective Entry Date is at least 2 days after Company transmission
day,and(iii) the ACH is open for business on the Company transmission day. For purposes of this
Agreement, a "business day" is a day on which Bank is open to the public for carrying on substantially
all ofits business other than a Saturday or Sunday, and Entries shall be deemed received by Bank in the
case of transmittal by electronic transmission,when the transmission(and compliance with any related
Security Procedure) is completed as provided in the Delivery Requirements.
If any of the requirements of clause(i),(ii)or(iii)of the preceding paragraph is not met,Bank shall use
reasonable efforts to transmit such Entries to the ACH by the next deposit deadline of the ACH
following that specified in Schedule A which is a business day and a day on which the ACH is open for
business.
4. On-Us Entries. Except as provided in Section 5, in the case of an On-Us Entry, Bank
shall credit the Receiver's account in the amount of such Entry on the Effective Entry Date contained in
such Entry,provided the requirements set forth in clauses (i) and(ii) of Section 3.2 are met. If either of
those requirements is not met, Bank shall use reasonable c&)rts to credit the Receiver's account in the
October 2,1996 2
amount of such Entry on the nest business day follow"irg such Effective Entry Date
5. Rejection of Entries. Bank may reject any Entry for any reason or for no reason. Bank
shall notify Company of such rejection (either electronically, in writing,by telephone, or as otherwise
agreed to by Bank and Company)no later than the business day after the Effective Entry Date. Bank
shall not be liable to Company for the rejection of any Entry,for Company's non-receipt of a notice
given to Company,or for the failure to give notice of rejection at an earlier time than that provided for
herein. Bank shall not be required to pay Company interest on a rejected Entry for the period from
rejection of the Entry to Company's receipt of the notice of rejection. If an Entry is returned or rejected
by the ACH solely due to errors by Bank and sufficient data is available to Bank to reprocess the Entry,
Bank shall reprocess the Entry.
6, Notice of Returned Entries. Bank shall notify Company either electronically, in
writing,by telephone,or as otherwise agreed to by Bank and Company of the receipt of an Entry
returned by the ACH no later than one (I) business day after Bank's receipt of the returned Entry. Bank
shall have no obligation to take other action with respect to a returned Entry.
7. Provisional Payment. Company represents to Bank and agrees that it shall be bound by
the provision of the Rules malting payment of an Entry by the RDFI to the Receiver provisional until
receipt by the RDFI of final settlement for such Entry, and specifically acknowledges that it has received
notice of that Rule and of the fact that, if such settlement is not received,the RDFI shall be entitled to a
refund from the Receiver of the amount credited and Company shall not be deemed to have paid the
Receiver the amount of the Entry.
8. Security Procedures; Unauthorized and Authorized Entries; Inconsistent Entries.
8.1 Purpose of Security Procedures. Company agrees that the purpose of the Security
Procedures is to verify die authenticity of Entries transmitted to Bank in the name of Company and not
to detect an error in the transmission or content of any Entry, and that no security procedure for the
detection of such errors has been agreed upon by Bank and Company.
8.2 Protection of Security Procedures. Company is strictly responsible to establish
and maintain procedures to safeguard against unuuthorized transmissions. Company warrants that no
individual will be allowed to initiate transfers in the absence of proper supervision and safeguards,and
agrees to take reasonable steps to maintain the confidentiality of the Security Procedures and of any
passwords,codes,security devices and related instructions provided by Bank in connection with the
Security Procedures, If Company believes or suspects that any such information or instructions are
known or have been accessed by unauthorized persons, Company shall notify Bank immediately. In
addition, Company will immediately notify Bank that an employee's authority has been revoked
whenever that employee leaves the Company's employ or otherwise is no longer authorized to submit
Entries on bebalf of the Company.
8.3 Unmuthorized Entries. An Entry delivered to Bank that purports to have been
transmitted or authorized by Company shall be effective as Company's Entry as provided herein even if
the Entry was not in fact authorized by Company, provided Bank has accepted the Entry in compliance
with the Security Procedures with respect to such Entry.
October 2,1996 3
8A Authorized Entries. If an Entry received by Bank-was transmitted or authorized by
Company,it shall be effective as the Company's Entry as provided herein, whether or not Bank complied
with the Security Procedures with respect to that Entry and whether or not that Entry was erroneous in
any respect or that error would have been detected if Bank had complied with such procedure_
8.5 Inconsistent Entries. Company a6mowledges and agrees that(i) if an Entry
describes the Receiver inconsistently by name and account number,payment of the Entry transmitted by
Bank to an RDFI might be made by RDFI(or by Bank in the case of an Ou-Us Entry)on the basis of the
account number even if it identifies a person different from the named Receiver, and that Company's
obligations to pay the amount of the Entry to Bank is not excused in such circumstances,and(u) if an
Entry describes the RDFI inconsistently by name and identifying number,payment of the Entry might be
made by RDFI on the basis of the account number even if it identifies an RDFI different from the named
RDFI, and that Company's obligation to pay the amount of the entry to Bank is not excused iu such
circumstances.
8.6 Commercially Reasonable Standard. After review of the Entries contemplated
under this Agreement, including those aspects to verify the authenticity of Entries delivered by Company
to Bank,Company acknowledges and agrees that the Security Procedures as set forth in Schedule B
attached hereto are commercially reasonable and are appropriate for Company's needs and will provide
Company with the degree of protection relative to Company's ability to accept the inherent nsk of the
execution by Bank of unauthorized or erroneous instructions received by BAnk, as long as Bank acts on
the delivery of Entries in good faith and in a fashion consistent with the other terms of this Agreement.
9. Company Account.
9.1 Payment of Entries. Company shall at all times maintain sufficient available fonds
in a deposit account as set forth in Schedule C. Company shall maintain at Bank (the "Company
Account") to pay the amount of all Credit Eutries, fees, and other amounts which Company is obligated
to pay Bank under this Agreement. Bank in its sole discretion may require Company to have sufficient
available funds in the Company Account to cover the amount of a Credit Entry prior to Bank's
transmittal of such Entry to an ACH or Bank's crediting of a Receiver's account in the amours of an On-
Us Entry, In the absence of such a requirement, Company shall be obligated to have such available
funds in the Company Account at such time on the Effective Entry Date with respect to such Entry,or in
the case of an On-Us Entry,the date of crediting the Receiver's account, as Bank,in its discretion, may
determine. Bank may,without prior notice or demand, obtain payment of any amount due and payable
toot under this Agreement by debiting the Company Account, and may credit the Company Account for
any amount to which Company is entitled under this Agreement. If there are insufficient funds available
in the Company Account to pay amounts Company owes Bank under this Agreement,Company shall
pay any amounts due immediately upon demand, and Company agrees that Bank may debit any account
maintained by Company with Bank or that Bank may set off against any amount it owes to Company, in
order to obtain payment of Company's obligations.
9.2 Financial Review. Company further agrees that the Bank at its sole discretion,may
from time to time subject Company to a credit review process which Nvill assist the Bank in determining
whether the single day exposure limits for Credit Entries as set forth in Section 2.1 are appropriate.
Company shall,upon Bank's request,provide to Bank any such information and assistance as Bahl-may
require to perform any such evaluation. Failure of Company to meet such standards or to provide such
information or assistance when requested shall constitute a breach of this Agreement and shall permit
Daaba 2,1996 4
Bank to terminate Agreement,
go 9.3 Account Type, Company represents and warrants that the Company Account is, and
during the term of this Agreement will be mauitained primarily for commercial, and not personal,family
or household,purposes.
10. Company's Representations,Warranties and Indemnification. Company represents
and warrants that for each Entry Company delivers to Bank that: (i) the Entry is a Credit Entry and
complies with the te-ms of this Aueement and the Rules: (ii) Company has complied with the Rules
with respect to the Entry; (iei)there has not been and shall not later be anv breach of any warranty of
Company as an Originator or of Bank as an ODFI under the Rules; (iv)Company has not breached any
waranty contained in this Agreement; and(v) the Entry complies with all local, State and Federal
regulateolss, including out not limited to the Electronic:and Transfer Act and Regulation E.
Company shall indemnify Bank against any loss, liabilitv or expense (including attorneys'
fees and expenses) resulting from or arising out of any breach of any of the foregoing representations or
warrantees,
Company agrees that it shall be deemed to make and renew each representation and warranty
made in Section 10 on and as of each day on which it delivers Entries to Bank-
11. Notices and Statements. Bank is not required to and will not provide Company or
Receivers with notice of receipt or Bank's transmittal or crediting of Entries. Entries and other debits
and credits to the Company Account will only be reflected on the periodic statement for the Company
Account. Company shall notify Bank of any unauthorized or erroneous Entrees or any other discrepancy
or error on the periodic statement witltin fourteen (14)calendar days of receipt of the statement,after
which the statement•hill be conclusively presumed to be correct, If Company fails to notify Bank of any
such discrepancy within one year of receipt of such periodic statement. Company shall be precluded
from asserting such discrepancy against Bank. Bank shall not be liable for any interest or losses
resulting from Company's failure to give such notice.
I2. Liability of Bank; Limitations on Liability.
12.1 Performance of Bank Bart],shall be responsible only for performing the services
it expressly agrees to perform in this Agreement, and shall be liable only for direct damages caused by
its-negligence in performing those services. Bank shall not be responsible for any acts or omissions of
Company, including without limitation the amount, accuracy,timeliness of delivery or Receiver
authorization of any Entry received from Company, or any act or omission of any other person, including
without limitation WesPay, any Federal Reserve Bank any ACfi or transmission or communications
facility, any data processor of Company,or any Receiver or RDFI(including without limitation the
return of an Entry by such Receiver or RDFI), and no such person shall be deemed Bank's agent.
12.2 Limit on Dama-es. In no event shall Bank be liable for any consequential, special,
punitive, or indirect lass or damage which Company may incur or suffer in connection with this
Agreement,including without limitation loss or damage from subsequent wrongful dishonor resulting
from Bank's acts or omissions in performing its services under this Agreement.
Octaba 2,1946 5
12.3 Force-Majeure. Bank shall not be responsible for any failure to act or delay in
up acting if such failure is caused by legal constraint,the interruption of transmission or communication
facilities,computer malfunction or equipment failure,war,emergence conditions, or other circumstances
beyond Bank's reasonable control. In addition, Bank shall be excused from failing to transmit or delay
in transmitting an Entry if such transmittal would result in Bank's having violated any provision of any
present or future risk;control program of the Federal Reserve or any rule or regaiation of any other
governmental regulatory authority.
12.4 Interest. Subject to the foregoing provisions of this Section 12, any liability which
Bank may have for loss of interest for an error or delay in performing its services hereunder shalf be
calculated by using a rate equal to the average Federal Funds rate of the Federal Reserve Bank of New
York for the period involved, less any applicable reserve requirements.
13. Indemnification. Company shall defend, indemnify and hold harmless Bank, and its
officers,directors, agents and employees,from and against any and all actions,costs,claims, losses,
damages or expenses, including attorneys' fees and expenses, resulting from or arising out of Q any
breach of am'of the agreements,representations or warranties of Company contained in this Agree�..ent,
or(ii) any act or omission of Company or any other party acting on Company's behalf,including but not
limited to the parties described in Section 12.1 above.
14. Payment for Bank Services_ Company shall pay Bank fees for the services provided
by Bank under this Agreement in accordance with rate schedules published by Bank from time to time.
Such charges do not include,and Company shall be responsible for payment of, any sales,use,or excise,
value added,utility or other similar taxes relating to the services provided for in Company's agreement
between Bank and Company µnth respect to the Company Account(the "Account Agreement"). Rate
schedules may be changed by Bank upon prior notice to Company.
15. Termination. Bank may terminate this Agreement immediately by notice to Company,
or without notice if Company breaches arry of its obligations under this Agreement or the Rules.
Without limiting the generality of the foregoing,this Agreement may be terminated by Bank at any time
by written notice if(i) Company breaches terms of any other agreement with Bank including an
agreement involving the borrowing of money or the extension of credit; (6) Company liquidates,
dissolves, merges into or consolidates with another entity, or sells, leases or disposes of a substantial
portion of its business or assets; (iii) Company terminates its business, fails generally to pay its debts as
they become due, or admits in writing its inability to pay its debts as they become due, or if any
bankruptcy,reorganization, arrangement,insolvency,dissolution or similar proceeding is instituted with
respect to Company,or if Company makes any assignment for the benefit of creditors or enters into any
composition with creditors or takes any corporate action in furtherance of any of the foregoing; or(iv)
any material adverse change occurs in Company's financial condition or results of operations or abiliry
to perform its obligations hereunder. Company shall promptly give written notice to Bank of the
eccupance of any of the foregoing events. Company may terminate this Agreement at any time upon ten
(10)business days prior notice to Bank. Temrination shall not affect any of Bank's rights or Company's
obligations under Sections 2.3, 10, 12,and 13 above or related to Entries initiated by Company prior to
such termination.
16. Severability. In the event that any provision of this Agreement or the application of
any such provision to any person or set of circumstances shall be determined to be invalid,unlawful,
void,or unenforceable to any extent, the remainder of this A21-eement, and the application of such
Ocwbcr 2,1996 6
provision. to persons or circumstances other than those to which it is determined to be invalid,unlawful,
void or unenforceable,shall not be impaired or otherwise affected and shall continue to be valid and
enforceable to the-ullest extent permitted by law.
17. Confidentiality. Company acknowledges that it will have access to certain confidential
information regarding Bank's execution of Entries, the Security Procedures and the services
contemplated by this Agreement. Company shall not disclose any such confidential information of Bank
and shall use such confidential information only in connection with the transactions contemplated by tins
Agreement.
18. Tapes and Records. All magnetic tapes, Entries,Security Procedures and records used
by Bank for transactions contemplated by this Agreement shall be and remain Bank's property. Bank
mav, in its sole discretion, make available such information upon Company's request.Any expenses
incurred by Bank in making any such information available to Company shall be paid by Company.
19. General Provisions,
19,1 Entire Agreement. This Agreement and the schedules attached hereto constitute
the entire agreement between Bank and Company and supersedes all prior agreements. In the event of
ary inconsistency between the terms of this Agreement and the Account Agreement, the terms of this
Ageerrneot shall govern. In the event performance of the services provided herein in accordance with the
terms of this Agreement would result in a violation of any present or future statute,regulation or
government policy to which Bank is subject, and which governs or affects the transactions contemplated
by this Agreement, then this Agreement shall be deemed amended to the extent necessary to comply with
such statute,regulation or policy, and Bank shall incur no liability to Company as a result of such
violation or amendment. No course of dealing bemveen Bank and Company or usage of trade shall
consti.ute a modification of this Agreement, the Rules or the Security Procedures or constitute an
agreement between Bank and Company regardless of whatever practices or procedures Bank or
Company may use.
19.2 Amendment. Except as provided in Section 14, Bank may amend any part of this
Agreement, including any schedule hereto, f7cm time to time immediately upon notice to Company_
19.3 Instructions and Notices.
(i) Except as otherwise expressly provided herein,Bank shaU not be
required to act upon any notice or instruction received from Company or any other person,or to provide
any notice or advice to Company or any other person with respect to any matter.
(ii) Bank shall be entitled to rely on any oral or written notice,response,
or other communication believed by it to be genuine and to have been provided by an authorized
representative of Company whose name is set forth ou Schedule C (each an "Authorized
Representative"), and any such communication shall be deemed to have been provided by such person
on behalf of Company. Company may add or delete any Authorized Representative by written notice
(including Board of Director resolution) to Bank inform acceptable to Bank signed by( )one or( }
two Authorized Representatives other than the one being added or deleted. Such notice shall be effective
on the second business day following the day of Bank's receipt thereof.
October 2, 1996 7
(ih) Any Entry or other data or information received by Bahl:from or
transmitted by Bank to the following data processor selected by Company shall be deemed to have been
received from or transmitted to Company, and such processor shall be deemed the agent of Company:
N/A Company may change such processor by
written notice to Bank signed by two Authorized Representatives. Such notice shall be effective on the
second business day following Bank's receipt therecE
(iv) Except as otherwise provided herein, any notice under this
Agreement must be in writing and delivered by express carrier, faxed or sent by United States registered
or certified mail and, if to Barb addressed to:
The Bank of Hemet
3715 Sunnyside Drive
Riverside, Ca. 92506
Atta.: Customer Service Manager
and, if to Company, addressed to:
City of San Jacinto
Office of City Manager
East-Ma-in 6treet
San Jacinto, CA 92581.
Ate,,: Patrick A Williams
unless another address is substituted by notice delivered or sent as provided herein.
Notices must comply with any applicable Security Procedures. Except as otherwise expressly provided
herein, any such notice shall be deemed given when received.
19A Third Party Vendors. If Company transmits Entries through a third party
Vendor, ("Vendor") is the agent of Company. Bank is not responsible for the acts or omissions of
Vendor, and Company agrees to hold Bank hartriless from any losses caused by acts or omissions of
Vendor, Company agrees that the Security Procedure established between Vendor, as Company's agent
and Sank is commercially reasonable. Company shall bear all casts as with the acquisition and maintenance of all systems used by Company in connection with the transactions contemplated by this
Agreement,including but not hmn ted to computer hardware and software, transmission lines and
facilities, programming and repair, and Bank makes no representations and undertakes no obligations
with respect to the same.
19.5 Assignment. Company may not assign its interest or rights under this Agreement
without the prior wrirten consent of Bank, and any purported assignment in violation of this section shall
be void.
19.6 Successor and Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties'hereto and their respective legal representatives, successors and permitted assigns.
This Agreement is not for the benefit of any other person, and no other person shall have any right
October 2.1996 8
against Bank or Company hereunder.
40 19.7 Headings. Headings used in this Agreement are for convenience only and shall not
be deemed a part of this Agreement.
19,8 Governing Law, This Agreement shall be construed in accordance w�h and
governed by the laws of the State of California, including but not limited to Division l I of the Califoru'a
Commercial Code.
19.9 Counterparts. This Agreement may be signed in counterparts, all of which shall
constitute one agreement.
IN WITNESS WHEREOF,the parties hereto have executed this Agreement as of the date first above
set forth.
City of San Jacinto
By
Its Mayor
"COMPANY"
OP
The Bank of Hemet
By
It5 Chairman
"Bank"
OP October 2,I996 9
SCHEDULE A
or DELIVERY REQUIREMENTS
Sterling Satellite User x Dion-Sterling Satellite User_
Transmission Frequency, Please circle one, (Company to provide Bank µith calendar indicating
specific dates of transmission)
Daily W=kJv Bi-Weekly Semi-Monthly l'lonthly Other
Estimated transmission record volume
ACH Transaction Types
PPD - (Prearranged Payment and Deposit) Used for consumer purpose transactions such as payroll.
Maximum daily exposure limit S loo,oco.oo Norma]. Payday
CCD- - (Cash Concentration or Disbursement) Used for funds to be distributed between Corporate
entities such as Federal Tax Payments.
Maximum daily exposure limit S 2 5,000-00 Normal. Tax Payment
Total daily exposure limit for all transmissions not to exceed S 150,000
Sterling Satellite User
Company will dial Bank at(909)652-2871 Bank will dial-back to Company at (909) 07-7343
Bank cut-off time for transmission to ACH - 6:00 p,m. twc business days prior to Effective Entzv
Date
Company Cut-off time for transmission to Bank - 2.00 p m. two business days prior to Effective
Entry Date
Non-Sterling Satellite User
Company will dial Bank at(909)
Credit Entries must be delivered to Bank according to NACHA file specifications.
Credit Entries will be delivered using the following communications software and modem:
Communications software Modem type Modern speed
Bank cut-off time for transmission to ACH - 6:00 p.m. two business days prior to Effective Entn,
Date
Company Cut-off time for transmission to Bank-2:00 p.m. two business days prior to Effective
Entry Date _
If Company is unable to deliver Credit Entries using Company's selected communications program,
Company may t-!n an altemative file delivery type as a te;:4wary backup provided that, inch time
prior to delivery, Company first notifies Bard: of the alternative fue delivery type, and obtains Bank's
agreement. Bank may impose additional Security Procedures not listed on Schedule B as part of the
Bank's acceptance of an alternate delivery method.
Initials /`/ta 4 " Date + I`tr
Qdab%T 2,1996 10
SCHEDULE B
SECURITY PROCEDURES - ALL ACH SERVICE USERS
Company Representations.
( a) Tle Company is solely responsible for the accurate creation,modification and deletion
of account information maintained on Company's computer used for Credit Entry
processing. The Company is solely responsible for access by its employees of the data
files maintained on Company's computer and for operator security which enables
employees to access the required communications software to transmit Credit Entries;
( b ) Any security code assigned by Bank to Company is confidential and will be
safeguarded by Company. Company will establish policies and procedures to prevent
disclosure of security codes to unauthorized personnel. Among other things, such
proc:dures shall instruct employees at Company not to disclose any security code to
any other employee or to display any security code;
( c No person will be allowed to initiate and if applicable, to confirm a Credit Entry in the
absence of proper supervision and adequate safeguards;
( d; CompLnv will Dromptly report the dismissal or other termination of any employee who
has received or become aware of any security code, and in any event no later than the
E.nal day of employment of such a person; and
( e} Company will promptly report arty breach of confidentiality of any security code and
any suspicion by Company that confidentiality may be or have been breached.
Indemnification. Company shall indemnify Sank aeuinst any loss, liability or expense(including
attorneys' fees and expenses)resulting from or arising out of any breach of the foregoing
representations. Company's indemnification obligation under this Section shall survive termination
of:his Agreement. Company further represents to be bound by the commercial reasonableness of the
security procedures
Changes in Authorized Representatives to Initiate or Confirm. The list of authorized
Representatives to initiate and if applicable, to confirm Credit Entries may be amended only upon
written notice including Board of Directors resolution to Bank in form acceptable to Bank signed by
{ X one( ) two Authorized Representatives of the Company. Any change in the list of persons
ailthorized to initiate and if applicable, to conform Credit Entries shall not be effective until after the
second day following receipt by Sank of the notice of change_
Initial P U" Date
oaober 2, 1996 1
SCHEDULE B - CONTINUED
SECURITY PROCEDURES- STER.CI,NG SATELLITE USER
Basic Procedure
(a) Company will establish and maintain a list of Authorized Represent2dves, as set forth on Schedule C to
access the Sterling ACH Software"Software".
(b) Company shall designate below an Authorized Representative to act as primary"Secunty Administrator"
for the Sterling Software, The Security Administrator will be responsible for issuing each Authorized
Representative as listed on Schedule C an Operator 1.D. and an initial unique Password. The initial unique
Password shall be changed by each Authorized Representative immediately upon gaining access to the
Software, followed by changing the Password a minimum of each 90 days thereafter.
Security Administrator Cindy Bohn Phone # (909) 487-7343
(c) Bank will assign a unique"Key Password"to Company. The Key Password, which shall be stored on
Company's personal computer, is regtnred for each transmission_ The Key Password is encrypted on the
Company's personal computer and an identical Key Password resident on the Bank's computer will
Perform an identification and"handshake". Upon passage of the handshake, both the Company and
Bank's communication is disconnected.
(d) The Ban'ti will perform a"dial-back" procedure which requires the Company's communication to respond
to the Bank's message. When the Company's communications responds to the Bat k's message,the
identif cation and handshake is repeated and data exchange commences.
Wwill establish maximum daily exposure limits for ACH data transmrissien as set forth in Schedule A. If a transmission is
attempted which exceeds the established rnaximuin,Company will receive a message indicating that the dollar limit
established has been exceeded, and contact with Bank:must be made prior to attempting resubmission.
Optional Procedures. The Security Administrator of Company wall establish and maintain procedures to safeguard against
unauthorized transmissions. The Software contains access controls and Company may implement one or more of the
follovvin2. and,crust do so by checking where appropriate. If none of the oplional procedures are checked, the Company has
choosen the Basic Procedure as a commercially reasonable security procedure.
Assignment of user levels for access to system Auto log-off after a period of non-use
_Disable access capability after invalid log-on attempts �_Required dual custody for addition of new operators
—Supervisor-level approval capability _Aging period for required Password maintenance
Company Responsibility to Review. Companv has considered the Security Procedur s contemplated for Ste.ling Satellite
Users, and finds that such security procedures are commercially reasonable. Company agrees that the purpose of the Security
Procedures is to verify the authenticity of Entries transmitted to Bank in the name of Company and not to detect an error in the
transmission or content of any Entry, and that no security,procedure for the detection of such errors has been agreed upon by
Bank and Company. In reaching this determination, the Company has considered the size, type and frequency of Credit
Entries that the Company anticipates.
2w Date
cktaba 2,1996 12
SCHEDULE C
AUTHORIZED REPRESENTATIVES AND C OMPA.NY AC'C;OU NT
Initiate Credit Entries
The following persons, and no others, are authorized to initiate Credit Entries on behalf of Company.
NAME TITLE SIGNATURE
-Cindy 2ghn Personnel Nanager
Ray Souza Accountant
George Kaenel Finance Director
Confirm Credit Entries (Required for Non-Sterling Satellite Users)
The following persons, and no others, are authorized to confirm the initiation of Credit Entries by
Company,its amount and such other information as may be requested by Bank as part of Bank'!;
confirmation procedures.
NAME TITLE SIGNATURE
Company Account -Compam shall at all times maintain sufficient available funds in the following
account to pay the amount of all Credit Entries, fees, and other amounts which Company is obligated
to pay Bank under this Agreement.
Accountm 49189346-01
Company shall fund Credit Entries as follows.
Date of transmission to Hank
Effective Entry Date
Initialj� Da#e
October S, 1996 14
SCHEDULE D
SUBLICENSE AGREEMENT- STERLING ACH SOF i N ARE
1, General. The Sterling ACH Software Program and related documentation"Software"
provided by Bank to Company is a program that permits Company to generate electronic
funds transfers for clearing and settlement through the Automated Clearing House (ACH)
network.
2. Ownership and Use. Company acknowledges that the Software program and any
documentation is the original,coeldenual, valuable and proprietary product of Sterling wbich
has licensed the Soffware to Bank with the right to sublicense to Company. Company has
only the right to use the Software consistent with the terms herein. Company has no right of
ownership to the Softwareand may not transfer,copy, alter,modify, reverse engmeer,
reproduce or convey in any manner, in whole or in part, the Software.
3. License. Bank hereby grants to Company a perpetual, non-exclusive and non-assignable
license for use of the Software program on a single computer, for the purpose of originating
ACH Credit Entries, subject to the to a s and conditions set forth in this Agreement.
Company will, at its own cost and expense, obtain, install and, at all time during the utilization
of tlue Software,maintain in good working order all hardware and equipment necessary for
origination of Entries.
4. Deliveryflnstallation/Acceptance, The Software shall be delivered to Company at
Company's designated site after Bank's execution of this Agreement and Company shall
install the Sofhvare on the Company's Hardware at Company's expense. If Company requires
the assistance of Bank in compieting suet installation, it shall not?ry Bank and agree to
compensate Bank for its services at the rate communicated by Ban,°, in advance.
3. Training. Un-site and off-site training shall be provided as available upon Company's
request, at Bank's ratcs,plus reasonable travel costs and out-of-pocket expenses for each
Ban]:employee assigned to do such trainins. Company agrees to pay for such training upon
receipt of Bank's invoice therefore.
6. Upgrades. Bank agTees to make available to Company such enhancements and improvcmcnts
to the Software which Banks elects to obtain from Sterling and generally makes available to
Bank's customers, at Bank's prices then in effect.
7. Capies. Bank shall provide Company with one copy of the Software. Company is authorized
to make one copy of the Software for back up purposes only.
S. Disclaimer, of Warranty, do warranties with respect to the Software are made by Bank nor
does it warrant that Software will meet specific requirements of the Company. Neither Bank
nor Sterling makes any warranty of any kind, either express or implied with respect to the use
of Lhe Software_ Bank and Sterling disclaim any and all implied warranties of merchantability
and fitness for a particular purpose.
October 1.1996 15
SCHEDULED - CONTINUED
9. Limitation of Liability, In no event shall Bank or Sterling be liable to Cempculy for any
damages including lost profits, lost savings,or other direct, indirect,incidental, special or
consequential damages arising out of the use or inability to use Software,or for any claim by
another parry.
10. Assignment and Transfer of Sublicense. Company api-ees not to sublicense, assign or
transfer this license or Software without prior written approval from Bank.
11. Termination. The license granted hereby shall be valid and effective from the date Sank
executes this Agreement and shall continue effective until terminated at any time by either
party,with or without cause, upon written notice to the other party. Immediately upon
termination of this license, Company shall cease malting use of the Software and shall retum it
to Bank, together with all software copies or reproductions in any form within Five(5)
business days of termination_ The obligation of Company under Section 2 of$is schedule
"Ownership and Use"shall survive the termination of this Agreement.
Initial/4-�j Date raj+ 4rt
oczotxr 2,1996 16
ARY'S CERTIFICATE
The undersigned, Secretary of
a California corporation{the "Company"), hereby certifies as follows:
a. Attached hereto is a true,complete and correct copy f f r.,ertain resolutions of the Board of
Directors of the Company, duly adopted by the Board at a meeting duly called and held, at which a
quorum was present and acting throughout; and
b. Such resolutions have not been amended, m6dified or rescinded and remain in full force
and effect on the date hereof.
c. That each of the persons named as autherized officers of the Company in the resolution
holds the office of the Company set forth next to his or her name and the signatures provided are
genuine.
IN WITNESS WHEREOF, the undersigred has hereunto sided his name and caused this
Certificate to be delivered, on the date shown.
Date: _ / (Signature)
(Print Name)
/ f Secretary
October 2, 1996 17
or Resolution of the Board of Directors
of
CITY OF SAN JACINTO
("Company")
WHEREAS, the Board has reviewed copies of the proposed Bank- of Hemet Origination
Agreement For Automated Clearing House Services (the "Agreement"), to be entered into by and
between the Company and The Bank of Hemet (the 'Bank"); and
WHEREAS,the Board has determined that it's participation in the Bank's Automated Clearing
House Origination Servic-,s("ACH Origination Services' will be on the terms and conditions set forth
in the Agreement.
NOW, THEREFORE, BE IT RESOLVED AS FOLLOWS:
i. It is in the best interest of the Company to participate in the ACH Origination Services,
such participation to be on the terms and conditions set forth in the Agreement; and
1 The Board authorizes and directs an authorized officer of the Company, for and on behalf
of the Company to negotiate, execute and deliver the Agreement and any renewals or amendments
thereof,with such terms,covenants,and conditions as such officer or officers executing the Agreement
on behalf of the Company may approve, such approval to be conclusively evidenced by the execution
and delivery of the Agreement; and
3. The Board has considered the security procedures contemplated by the Agreement, and
Finds that such security procedures are commercially reasonable procedures for verifying that a
transmission file or other communication purporting to have been issued by the Company as originator
is in fact of the Company. In reaching this determination, the Board has considered the size,type and
frequency of ACH Origination Services that the Company anticipates issuing to the Bank; and
- 4. The Board is aware that the Bank may have available alternative security procedures that
could provide a ia=ter degree of certainty for verification of the authenticity of Entries, and authorizes
.-Id.dirc--L an authorized officer of the Company to disclose to the Bank the size, type and frequency of
Entries that the Company anticipates issuing to the Sank, to review alternative security procedures
a,,aiablc from the Rank,and to consent to and agree to the use of the security procedures set forth in the
Agreement as submitted to the Board only after first deterniminb that such proccuures arc appropriate
for the Company,such determination to be conclusively evidenced by the execution and delivery of the
Agreement; and
5. The Board authorizes an authorized officer in connection with the Agreement(a)to initiate,
cancel, confirm or verify the authenticity of instructions to the Bank for ACH Origination Services,
whether given orally,ekctronical ly or by facsimile instructions; and (b)to designate one or more persons
authorized to perform any of the foregoing and to revoke any authorization granted to any such persons,
Oaober 2, 1996 is
as he or she deems appropriate; and
�tir.r
6 The Board authorizes an authorized officer in connection with the Agreement to delegate
anv of the aurhorities erar.ted:a him or her under these resolutions to one or more persons and to revoke
any authorization granted w any such person, as lie or she deems appropriate; and
7. The Bank is authorized to act and rely on these resolutions until it actually receives NN-itten
notice of their amendment or revocation; and
S. As used in these Resolutions, the terms, "authorized officer of the Company" and
"aulraorized of_icer(s)of the Company" shall mean the following acting{) any two together
x_ ( }separately:
Title Name Signature /
a Tnterim Fi-iance Director George H Keenel
b. Accountant Ray Bouza
c. City Manager James S Mocalis �''/f•�
d. Mayor Fatrick A Williams �, )
e Vice Mayor Jim Ayres
f,
Oacbcr 2, 1996 19
I