HomeMy WebLinkAbout18- Professional Services Agreement - U.S. Bank National Association - Banking Services PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT is made and entered into this 1 st 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 1 st 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
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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 dornain, (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, tradernark,
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
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FY 2018
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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
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FY 2018
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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 clairns, 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.
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FY 2018
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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.
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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. Batik 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 patties 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
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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.
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FY 2018
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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 patties.
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 patties.
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 patties 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 patties hereto have executed this instrument the day and year
first above written.
CITY OF BOZEMAN,MONTANA U.S. BANK NATIONAL ASSOCIATION
By By 1
Andrea Surratt, City pager r
Print Name: l r�t�
Print Title: ( '
Professional Services Agreement for Banking Services
FY 2018
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APP VED AS TO FORM:
By
Greg Ilivan, Bozeman City Attorney
Professional Services Agreement for Banking Services
FY 2018
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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