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HomeMy WebLinkAbout08-13-18 City Commission Packet Materials - C9. PSA with U.S. Bank for Banking Services Commission Memorandum REPORT TO: Honorable Mayor and City Commission FROM: Laurae Clark, Treasurer Kristin Donald, Finance Director SUBJECT: Accept US Bank’s bid proposal for banking services. MEETING DATE: August 13, 2018 AGENDA ITEM TYPE: Consent RECOMMENDATION: Accept US Bank’s bid proposal for banking services for the period of May 1, 2018 through May 1, 2023. BACKGROUND: 7-6-206. Time deposits -- repurchase agreement. (1) Public money not necessary for immediate use by a county, city, or town that is not invested as authorized in 7-6- 202 may be placed in time or savings deposits with a bank, savings and loan association, or credit union in the state or placed in repurchase agreements as authorized in 7-6-213. Money placed in repurchase agreements is subject to subsection (2). (2) The local governing body may solicit bids for time or savings deposits from a bank, savings and loan association, or credit union in the state. The City of Bozeman’s current contract for banking services expired on April 1, 2018. An RFP for banking services was advertised for all banks within the City limits of Bozeman. The qualifications and criteria for selection included; prior experience in municipal banking services as well as dedicated resources, interest rate, the overall quality of banking services to be provided and convenience to the City. Other requirements included proper submission of proposal, comprehensiveness of services provided, charges for services, cost of transition, software compatibility, service enhancements and an assigned relationship Manager/Team. We received bids from only one bank; US Bank, which is has been our current bank since 2011. US Bank’s credit ratings put them as an industry leader in the nation in financial performance, safety, soundness and collateralization. The services available to us are extensive and give us optimum protection for fraud prevention. I have also worked with the Vice President & Relationship Manager for Government Banking at US Bank for a number of years and am very confident in her knowledge and ability to assist the City of Bozeman with our financial needs. UNRESOLVED ISSUES: None ALTERNATIVES: As suggested by the City Commission. FISCAL EFFECTS: None Attachments: Professional Services Agreement US Bank 0518 147 Professional Services Agreement for Banking Services FY 2018 Page 1 of 9 PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT is made and entered into this 1st day of May, 2018, by and between the CITY OF BOZEMAN, MONTANA, a self-governing municipal corporation organized and existing under its Charter and the laws of the State of Montana, 121 North Rouse Street, Bozeman, Montana, with a mailing address of PO Box 1230, Bozeman, MT 59771, hereinafter referred to as “City,” and U.S. Bank National Association, with a mailing address of 302 North Last Chance Gulch, Helena, MT 59601, hereinafter referred to as “U.S. Bank.” In consideration of the mutual covenants and agreements herein contained, the receipt and sufficiency whereof being hereby acknowledged, the parties hereto agree as follows: 1. Purpose: City agrees to enter this Agreement with U.S. Bank to perform the services described in the Scope of Services attached hereto as Exhibit “A” and by this reference made a part hereof. 2. Term/Effective Date: This Agreement is effective upon the date of its execution and will terminate on the 1st day of May, 2023 3. Scope of Services: U.S. Bank will perform the work and provide the services in accordance with the requirements of the Scope of Services. For conflicts between this Agreement and the Scope of Services, unless specifically provided otherwise, the Agreement governs. 4. Payment: City agrees to pay U.S. Bank the amount specified in the Scope of Services. Any alteration or deviation from the described services that involves additional costs above the Agreement amount will be performed by U.S. Bank after written request by the City, and will become an additional charge over and above the amount listed in the Scope of Services. The City must agree in writing upon any additional charges. 5. Ownership of Documents: All documents, data, drawings, specifications, software applications and other products or materials produced by U.S. Bank as a deliverable solely for, and paid for by, the City of Bozeman ("Work Product") shall be the property of the City of Bozeman whether the project for which they are made is executed or not. All such Work Product shall be forwarded to the City of Bozeman at its request and may be used by the City of Bozeman as it sees 148 Professional Services Agreement for Banking Services FY 2018 Page 2 of 9 fit. The City of Bozeman agrees that if the Work Product is used for purposes other than those intended by the Agreement, the City of Bozeman does so at its sole risk and agrees to hold U.S. Bank harmless for such use. All or any portions of Work Product may be used by U.S. Bank upon confirmation from the City of Bozeman that they are subject to disclosure under the Public Disclosure Act. All services performed under this Agreement will be conducted solely for the benefit of the City of Bozeman and will not be used for any other purpose without written consent of the City. Any information relating to the services will not be released without the written permission of the City. U.S. Bank shall preserve the confidentiality of all City of Bozeman documents and data accessed for use in U.S. Bank’s work product. However, U.S. Bank may disclose confidential information without notice to the City (i) to a bank regulatory agency in connection with an examination of U.S. Bank's records, (ii) at the express direction of any other authorized government agency, (iii) pursuant to a subpoena or court order, or (iv) as required by law. Confidential information shall not include information disclosed by the City to U.S. Bank which is (i) in the public domain, (ii) known by U.S. Bank as the time of disclosure of such information by the City, (iii) subsequently received by U.S. Bank in good faith from a third party not known to U.S. Bank to be bound by a duty of confidentiality, or (iv) independently generated by U.S. Bank. 6. U.S. Bank’s Representations: To induce City to enter into this Agreement, U.S. Bank makes the following representations: a. U.S. Bank has familiarized itself with the nature and extent of this Agreement, the Scope of Services, and with all local conditions and federal, state and local laws, ordinances, rules, and regulations that in any manner may affect cost, progress or performance of the Scope of Services. b. U.S. Bank represents and warrants to City that it has the experience and ability to perform the services required by this Agreement; that it will perform said services in a professional, competent and timely manner and with diligence and skill; that it has the power to enter into and perform this Agreement and grant the rights granted in it; and that its performance of this Agreement shall not infringe upon or violate the rights of any third party, whether rights of copyright, trademark, privacy, publicity, libel, slander or any other rights of any nature whatsoever, or violate any federal, state and municipal laws. The City will not determine or exercise control as to general procedures or formats necessary to have these services meet this warranty. 7. Independent Contractor Status/Labor Relations: The parties agree that U.S. Bank is an independent contractor for purposes of this Agreement and is not to be considered an employee of the City for any purpose. U.S. Bank is not subject to the terms and provisions of the City’s personnel policies handbook and may not be considered a City employee for workers’ compensation 149 Professional Services Agreement for Banking Services FY 2018 Page 3 of 9 or any other purpose. U.S. Bank is not authorized to represent the City or otherwise bind the City in any dealings between U.S. Bank and any third parties. U.S. Bank shall comply with the requirements of the Workers’ Compensation Act, Title 39, Chapter 71, MCA, and the Occupational Disease Act of Montana, Title 39, Chapter 71, MCA which are applicable to U.S. Bank. U.S. Bank shall maintain workers’ compensation coverage for all members and employees of U.S. Bank’s business, except for those members who are exempted by law. U.S. Bank shall furnish the City with copies showing one of the following: (1) a binder for workers’ compensation coverage by an insurer licensed and authorized to provide workers’ compensation insurance in the State of Montana; or (2) proof of exemption from workers’ compensation granted by law for independent contractors. U.S. Bank shall indemnify, defend, and hold the City harmless from any and all claims, demands, costs, expenses, damages, and liabilities arising out of, resulting from, or occurring in connection with any labor problems or disputes or any delays or stoppages of work associated with such problems or disputes. 8. Indemnity/Waiver of Claims/Insurance: To the fullest extent permitted by law, U.S. Bank agrees to release, defend, indemnify, and hold harmless the City, its agents, representatives, employees, and officers (collectively referred to for purposes of this Section as the City) from and against any and all claims, demands, actions, fees and costs (including attorney’s fees and the costs and fees of expert witness and consultants), losses, expenses, liabilities (including liability where activity is inherently or intrinsically dangerous) or damages of whatever kind or nature connected therewith, to the extent growing or arising out of or resulting from: (i) the negligent, reckless, or intentional misconduct of the U.S. Bank; or (ii) any negligent, reckless, or intentional misconduct of any of the U.S. Bank’s agents. Such obligations shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity that would otherwise exist. The indemnification obligations of this Section must not be construed to negate, abridge, or reduce any common-law or statutory rights of the indemnitee(s) which would otherwise exist as to such indemnitee(s). U.S. Bank’s indemnity under this Section shall be without regard to and without any right to contribution from any insurance maintained by City. Should any indemnitee described herein be required to bring an action against the U.S. Bank to assert its right to defense or indemnification under this Agreement or under the U.S. Bank’s applicable insurance policies required below the indemnitee shall be entitled to recover reasonable costs and attorney fees incurred in asserting its right to indemnification or defense but only if a court of competent jurisdiction determines the U.S. Bank was obligated to defend the claim(s) or was 150 Professional Services Agreement for Banking Services FY 2018 Page 4 of 9 obligated to indemnify the indemnitee for a claim(s) or any portion(s) thereof. In the event of an action filed against City resulting from the City’s performance under this Agreement, the City may elect to represent itself and incur all costs and expenses of suit. In addition to and independent from the above, U.S. Bank shall at U.S. Bank’s expense secure insurance coverage through an insurance company or companies duly licensed and authorized to conduct insurance business in Montana which insures the liabilities and obligations specifically assumed by the U.S. Bank in this Section. The insurance coverage shall not contain any exclusion for liabilities specifically assumed by the U.S. Bank in subsection (a) of this Section. The insurance shall cover and apply to all claims, demands, suits, damages, losses, and expenses that may be asserted or claimed against, recovered from, or suffered by the City without limit and without regard to the cause therefore and which is acceptable to the City and U.S. Bank shall furnish to the City an accompanying certificate of insurance and accompanying endorsements in amounts not less than as follows: • Workers’ Compensation – statutory; • Employers’ Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; • Commercial General Liability - $1,000,000 per occurrence; $2,000,000 annual aggregate; The above amounts shall be exclusive of defense costs. The City of Bozeman, its officers, agents, and employees, shall be endorsed as an additional or named insured on a primary non- contributory basis on both the Commercial General Liability policy. The insurance and required endorsements must be in a form suitable to City and shall include no less than a thirty (30) day notice of cancellation or non-renewal. U.S. Bank shall notify City within two (2) business days of U.S. Bank’s receipt of notice that any required insurance coverage will be terminated or U.S. Bank’s decision to terminate any required insurance coverage for any reason. The City must approve all insurance coverage and endorsements prior to the U.S. Bank commencing work. 9. Termination: a. For fault. If U.S. Bank refuses or fails to timely do the work, or any part thereof, or fails to perform any of its obligations under this Agreement, or otherwise breaches any terms or conditions of this Agreement, the City may, by written notice, terminate this Agreement and the U.S. Bank’s right to proceed with all or any part of the work (“Termination Notice Due to U.S. Bank’s Fault”). The City may then take over the work and complete it, either with its own resources or by re-letting the contract to any other third party. 151 Professional Services Agreement for Banking Services FY 2018 Page 5 of 9 b. For convenience. Either party may terminate this Agreement for any reason upon 30 days written notice to the other party. c. By bank. U.S. Bank may also terminate or suspend any services immediately without notice to the City if any of the following occurs: (a) the City becomes insolvent or files, or has filed against it, any bankruptcy or other insolvency, reorganization, liquidation or dissolution proceeding of any kind; (b) a material adverse change occurs in the City's business or financial condition; (c) Bank has reason to believe that the City has engaged in fraudulent or illegal activity; (d) the City fails to maintain balances in accounts sufficient to cover overdrafts; (e) the City violates, or is in default under, the terms of this Agreement or any other agreement with U.S. Bank; (f) the City fails to comply with security procedures or fails to provide financial information reasonably requested by U.S. Bank; (g) U.S. Bank determines it is impractical or illegal to provide any services because of changes in laws, regulations or rules; (h) U.S. Bank, in good faith, is unable to satisfy itself that any services have been properly authorized by the City; or (i) U.S. Bank, in good faith, deems itself insecure. d. Any termination provided for by this Section 9 shall be in addition to any other remedies to which the City may be entitled under the law or at equity. e. In the event of a termination pursuant to this Section 9, U.S. Bank is entitled to payment only for those services U.S. Bank actually rendered on or before the receipt of the notice of termination. Notwithstanding any termination, the terms of this Agreement along with U.S. Bank’s Master Services Agreement, Services Terms and Conditions, Deposit Account Agreement shall apply to all transactions which have been initiated prior to termination. 10. Limitation on U.S. Bank’s Damages; Time for Asserting Claim: a. In the event of a claim for damages by U.S. Bank under this Agreement, U.S. Bank’s damages shall be limited to contract damages and U.S. Bank hereby expressly waives any right to claim or recover consequential, special, punitive, lost business opportunity, lost productivity, field office overhead, general conditions costs, or lost profits damages of any nature or kind. b. In the event U.S. Bank wants to assert a claim for damages of any kind or nature, U.S. Bank shall provide City with written notice of its claim, the facts and circumstances surrounding and giving rise to the claim, and the total amount of damages sought by the claim, within thirty (30) days of the facts and circumstances giving rise to the claim. In the event U.S. Bank fails to provide such notice, U.S. Bank shall waive all rights to assert such claim. 152 Professional Services Agreement for Banking Services FY 2018 Page 6 of 9 11. Representatives: a. City’s Representative: The City’s Representative for the purpose of this Agreement shall be Laurae Clark, Treasurer or such other individual as City shall designate in writing. b. U.S. Bank’s Representative: U.S. Bank’s Representative for the purpose of this Agreement shall be Kim Spiroff, Vice President Relationship Manager or such other individual as U.S. Bank shall designate in writing. 12. Permits: U.S. Bank shall provide all notices and comply with all laws, ordinances, rules, and regulations which are applicable to U.S. Bank. 13. Laws and Regulations: U.S. Bank shall comply fully with all state and federal laws, regulations, and municipal ordinances which are applicable to U.S. Bank including, but not limited to, all workers’ compensation laws, all environmental laws including, but not limited to, the generation and disposal of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all City, County, and State building and electrical codes, the Americans with Disabilities Act, and all non- discrimination, affirmative action, and utilization of minority and small business statutes and regulations to the extent they are applicable to U.S. Bank. 14. Nondiscrimination: U.S. Bank agrees that all hiring by U.S. Bank of persons performing this Agreement shall be on the basis of merit and qualifications. U.S. Bank will have a policy to provide equal employment opportunity in accordance with all state and federal anti- discrimination laws, regulations, and contracts which are applicable to U.S. Bank. U.S. Bank will not refuse employment to a person, bar a person from employment, or discriminate against a person in compensation or in a term, condition, or privilege of employment because of race, color, religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation, gender identity, physical or mental disability, except when the reasonable demands of the position require an age, physical or mental disability, marital status or sex distinction. U.S. Bank shall require these nondiscrimination terms of its subcontractors providing services under this agreement. 15. Modification and Assignability: This Agreement may not be enlarged, modified or altered except by written agreement signed by both parties hereto. Except for assignments arising under operation of law due to a merger or acquisition, U.S. Bank may not subcontract or assign U.S. Bank’s rights, including the right to compensation or duties arising hereunder, without the prior written consent of City. Any subcontractor or assignee will be bound by all of the terms and conditions of this Agreement. For purposes of this Agreement, the term subcontractor does not include 153 Professional Services Agreement for Banking Services FY 2018 Page 7 of 9 vendors of the U.S. Bank who do not provide a service directly to the City and are not hired by U.S. Bank specifically for performance under this Agreement. 16. Reports/Accountability/Public Information: U.S. Bank agrees to develop and/or provide documentation as requested by the City, upon ninety (90) days written notice, but not more than once per calendar year, demonstrating U.S. Bank’s compliance with the requirements of this Agreement. U.S. Bank shall not issue any statements, releases or information for public dissemination related to this Agreement without prior approval of the City. 17. Non-Waiver: A waiver by either party any default or breach by the other party of any terms or conditions of this Agreement does not limit the other party’s right to enforce such term or conditions or to pursue any available legal or equitable rights in the event of any subsequent default or breach. 18. Attorney’s Fees and Costs: In the event it becomes necessary for either Party to retain an attorney to enforce any of the terms or conditions of this Agreement or to give any notice required herein, then the prevailing Party or the Party giving notice shall be entitled to reasonable attorney's fees and costs, including fees, salary, and costs of in-house counsel to include City Attorney. 19. Taxes: U.S. Bank is obligated to pay all taxes of any kind or nature which are applicable to U.S. Bank and make all appropriate employee withholdings. 20. Dispute Resolution: a. Any claim, controversy, or dispute between the parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the parties, the parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. b. If the parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Agreement. 21. Survival: U.S. Bank’s indemnification shall survive the termination or expiration of this Agreement for the maximum period allowed under applicable law. 22. Headings: The headings used in this Agreement are for convenience only and are not be construed as a part of the Agreement or as a limitation on the scope of the particular paragraphs to which they refer. 154 Professional Services Agreement for Banking Services FY 2018 Page 8 of 9 23. Severability: If any portion of this Agreement is held to be void or unenforceable, the balance thereof shall continue in effect. 24. Applicable Law: The parties agree that this Agreement is governed in all respects by the laws of the State of Montana. 25. Binding Effect: This Agreement is binding upon and inures to the benefit of the heirs, legal representatives, successors, and assigns of the parties. 26. No Third-Party Beneficiary: This Agreement is for the exclusive benefit of the parties, does not constitute a third-party beneficiary agreement, and may not be relied upon or enforced by a third party. 27. Counterparts: This Agreement may be executed in counterparts, which together constitute one instrument. 28. Integration: This Agreement and all Exhibits attached hereto, along with U.S. Bank’s Master Services Agreement, Services Terms and Conditions, Deposit Account Agreement, and documents referenced or incorporated therein, constitute the entire agreement of the parties. Covenants or representations not contained therein or made a part thereof by reference, are not binding upon the parties. There are no understandings between the parties other than as set forth in this Agreement, along with U.S. Bank’s Master Services Agreement, Services Terms and Conditions, Deposit Account Agreement, and documents referenced or incorporated therein. All communications, either verbal or written, made prior to the date of this Agreement are hereby abrogated and withdrawn unless specifically made a part of this Agreement by reference. 29. Extensions: This Agreement may, upon mutual agreement, be extended for a period of one year by written agreement of the Parties. In no case, however, may this Agreement run longer than seven years. IN WITNESS WHEREOF, the parties hereto have executed this instrument the day and year first above written. CITY OF BOZEMAN, MONTANA U.S. BANK NATIONAL ASSOCIATION By________________________________ By____________________________________ Andrea Surratt, City Manager Print Name: ___________________________ Print Title: ____________________________ 155 Professional Services Agreement for Banking Services FY 2018 Page 9 of 9 APPROVED AS TO FORM: By_______________________________ Greg Sullivan, Bozeman City Attorney 156 City of Bozeman – Banking Services RFP Scope of Work: U.S. Bank shall perform the services outlined in Section 4 of the RFP. In performing these services, U.S. Bank shall at all times comply with all federal, state and local statutes, rules and ordinances applicable. These services and all duties incidental or necessary therefor, shall be performed diligently and completely and in accordance with professional standards of conduct and performance. Below is a general outline of the Services Required. Services Required: The services required to accommodate the City’s current and anticipated banking needs are extensive and major service categories are outlined as follows: 1. Demand Deposit Accounts 2. Account Reconcilement for Various Checking Accounts 3. Electronic Reporting/File Transmission 4. Cash Vault Services 5. Electronic Payment/Deposit Services 6. Money Transfer Services 7. Reporting Services 8. Credit Card Services 9. Processing of returned checks 10. Procurement card services 11. Accounts Payable Electronic Fund Transfer 12. Electronic Accounts Payable Invoice Payment 13. Other Services as negotiated by both parties 157