1-Exceptions and Clarifications.pdf

RFP and Sample Agreements: Comments/Clarifications/Exceptions:

SPECIAL INSTRUCTIONS

Page 6, C. 4. Subcontracts – clarification: Some duties under the Contract may be provided by affiliates of Offeror without notification to the State. In any event, Offeror shall continue to be responsible for performance under the Contract. This concept is also discussed in 5.2 of the Uniform Terms and Conditions.

REQUEST FOR PROPOSAL

Page 5, 4.4.7 – Interest Rates: Once locked, rates may not be adjusted downward. Conversely, in rising market conditions the locked rate will not be adjusted upward. The rate is locked unless the transaction goes beyond the 30- day lock period. If this occurs, the rate may be adjusted to maintain economics that were bid or the State can go out for a rebid of the transaction.

Page 5, 4.5 Multiple Disbursements-this whole concept does not work. The State does not allow escrow fundings nor does it allow for multiple disbursements on a transaction. Each draw would need to be priced separately on individual schedules (all with different rates and maturities) and legally “what are we financing” on each schedule. This structure has never been utilized with this program and therefore should not be included in the documents.

Page 8, 6.2 All Documentation Must be Electronic Format – Additional E-Sign language requested to be included in the documents:

Electronic Signatures. The Master Lease Purchase Agreement and Related Documents may be executed and delivered by facsimile signature or other electronic or digital means (including, without limitation, Adobe’s Portable Document Format (“PDF”)). Any such signature shall be of the same force and effect as an original signature, it being the express intent of the parties to create a valid and legally enforceable contract between them. The exchange and delivery of the Master Lease Purchase Agreement and Related Documents and the related signature pages via facsimile or as an attachment to electronic mail (including in PDF) shall constitute effective execution and delivery by the parties and may be used by the parties for all purposes. Notwithstanding the foregoing, at the request of either party, the parties hereto agree to exchange inked original replacement signature pages as soon thereafter as reasonably practicable.

Pages 12-13, 15. Indemnification – caveat:

With respect to the Indemnification provision, this provision must be limited in application to the actions and performance of BAPCC and its agents and employees. BAPCC will not indemnify, hold harmless, defend, pay expenses, pay attorney’s fees or otherwise be responsible for the actions or performance of the State of Arizona; its agencies thereunder; the officers, agents, employees of the State of Arizona or its agencies; or any third party.

Pages 13-16, 16. Insurance: -- clarifications:

Bank of America will furnish Certificate of Insurance prior to contract and at renewal. (continued)

16.1 Insurance Requirements - Bank of America cannot guarantee the requested insurance is maintained throughout the life of the contract, but intends to continue to purchase as long as it is commercially available and economically attractive.

16.2

16.2.1 Bank of America maintains Commercial General Liability coverage (including Bodily Injury & Property Damage, Personal & Advertising Injury, Products & Completed Operations, and Contractual Liability) with limits of $2,000,000 per occurrence/$2,000,000 aggregate. Bank of America’s General Liability and Auto Liability include a blanket additional insured provision for any entity required by contract or agreement to be an additional insured. Subrogation will be waived except with respect to Workers’ Compensation insurance.

16.2.2 Bank of America maintains Workers’ Compensation coverage in compliance with all statutory requirements. Bank of America maintains Employer’s Liability Coverage with limits of $1,000,000 per occurrence/$1,000,000 each accident or disease/$1,000,000 aggregate. Subrogation will be waived except with respect to Workers’ Compensation insurance.

16.2.3 Bank of America maintains Professional Liability (Errors & Omissions) insurance on a claims-made basis providing coverage for loss or damage due to an act, error, omission, or negligence of Bank of America employees with a primary limit of $15,000,000. Bank of America’s insurance policies are written annually, thus eliminating the need to obtain an extended reporting provision to include run-off coverage or retroactive dates. Although it is Bank of America’s intent to renew all coverages as required in this contract, the Bank reserves the right to self insure any lines of coverage.

16.3.2 With respect to the Indemnification provision, this provision must be limited in application to the actions and performance of BAPCC and its agents and employees. BAPCC will not indemnify, hold harmless, defend, pay expenses, pay attorney’s fees or otherwise be responsible for the actions or performance of the State of Arizona; its agencies thereunder; the officers, agents, employees of the State of Arizona or its agencies; or any third party.

16.4 Bank of America will endeavor to provide thirty (30) days written notice upon termination or modification of coverage. Failure to provide notice of cancellation of coverage shall impose no obligation or liability of any kind upon Bank of America, its agents or representatives.

16.6 Bank of America will furnish certificates of insurance evidencing the coverage referenced herein.

Bank of America does not provide copies of its insurance policies to third parties as this information is proprietary and confidential.

16.8 Any insurance required of Bank of America should be determined at contract execution.

UNIFORM TERMS AND CONDITIONS

Page 18, 3.1 Records – caveat:

In no event shall Records include the following: (i) any item that the Contractor is prohibited by law or regulation to provide to the State, (ii) any item subject to attorney-client privilege or any other similar privilege and (iii) any item that contains proprietary information of the Contractor.

Page 19, 3.3 Audit – caveat:

In no event shall books and records include the following: (i) any item that the Contractor is prohibited by law or regulation to provide to the State, (ii) any item subject to attorney-client privilege or any other similar privilege and (iii) any item that contains proprietary information of the Contractor.

Page 19, 3.4 Facilities Inspection – caveat:

Bank of America Corporation and its subsidiaries which include Banc of America Public Capital Corp, in accordance with applicable regulations, comply with regulatory agencies in response to and cooperation with reviews and investigations. We confine access to our facilities and records by regulatory agencies in order to ensure privacy and will work to answer any questions you may have.

Page 22, 5.2 Subcontracts – caveat: See caveat previously stated in SPECIAL INSTRUCTIONS, Page 6, C. 4. Subcontracts above.

Page 23, 6.2 and 6.3 Indemnification – Clarification:

With respect to the Indemnification provision, this provision must be limited in application to the actions and performance of BAPCC and its agents and employees. BAPCC will not indemnify, hold harmless, defend, pay expenses, pay attorney’s fees or otherwise be responsible for the actions or performance of the State of Arizona; its agencies thereunder; the officers, agents, employees of the State of Arizona or its agencies; or any third party.

Pages 28-29, 9 Contract Termination– caveat: Any contract termination shall require prepayment of any outstanding obligations in full, or else the then outstanding obligations under the Contract shall continue in full force and effect.

Page 37, E.2 and E.3 – Any contract termination under these two sections shall require prepayment of any outstanding obligations in full, or else the outstanding obligations under the Contract shall continue in full force and effect.

Page 44, M. 11. Inspection and Audit – See exception previously stated in 3.1 and 3.3 above.

This proposal is submitted in response to your Request for Proposal/Master Lease Purchase/3rd Party Financing, due November 21 2023. The contents of this proposal and any subsequent discussions between us, including any and all information, recommendations, opinions, indicative pricing, quotations and analysis with respect to any municipal financial product or issuance of municipal securities, are provided to you in reliance upon the exemption provided for responses to requests for proposals or qualifications under the municipal advisor rules (the “Rules”) of the Securities and Exchange

Commission (240 CFR 15Ba1-1 et seq.).

The Staff of the SEC’s Office of Municipal Securities has issued guidance which provides that, in order for a request for proposals to be consistent with this exemption, it must (a) identify a particular objective, (b) be open for not more than a reasonable period of time (up to six months being generally considered as reasonable), and (c) involve a competitive process (such as by being provided to at least three reasonably competitive market participants) or by being publicly posted to your official website. In submitting this proposal, we have relied upon your compliance with this guidance.

In submitting this proposal, we are not undertaking to act as a “municipal advisor” to you or any other person within the meaning of the Rules.

In connection with this proposal and the transactions described herein, we are not subject to, and we hereby disclaim, any fiduciary duty to you or to any other person. We understand that you will consult with and rely on the advice of your own municipal, financial, tax, legal and other advisors as and to the extent you deem necessary in connection with your evaluation of this proposal and the transactions described herein.