Exhibit_Z_-_SAMPLE_-_DRAFT_Contract.pdf

AGREEMENT

FOR

BANKING SERVICES

25-P-131TF

Between

THE COUNTY OF VOLUSIA

AND

[NAME OF COMPANY]

County of Volusia Purchasing & Contracts Division

123 West Indiana Avenue, Suite 302 DeLand, Florida 32720-4608

386-736-5935

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AGREEMENT FOR BANKING SERVICES

This Agreement for Banking Services (hereinafter “Agreement”) is made and entered by and between [NAME OF COMPANY], which is duly authorized to conduct business in the State of Florida, and whose principal place of business is located at [Company’s address] (“Bank”) and COUNTY OF VOLUSIA, a body corporate and politic and a subdivision of the State of Florida, whose address is County of Volusia, 123 West Indiana Avenue, DeLand, Florida 32720 (“County”).

RECITALS:

WHEREAS, the County desires to retain the services of a competent and qualified Bank to provide banking services; and

WHEREAS, the County issued Request for Proposals 25-P-131TF (the “RFP”) seeking a qualified firm to perform banking services, and has received responses from various potential vendors; and

WHEREAS, the County has determined that Bank is fully qualified to render the required service; and

WHEREAS, in reliance on Bank’s response to the RFP, the County determined that the execution of this Agreement is beneficial to the people of County of Volusia, Florida.

NOW, THEREFORE, in consideration of the foregoing recitals which are incorporated herein by reference, and other specific consideration set forth in this Agreement, the receipt and sufficiency of which is acknowledged by Bank and County, the parties agree and stipulate as follows:

1 DEFINITIONS

For this Agreement and any incorporated exhibits, certain terms, phrases, words and their respective derivations shall have the meaning set forth and defined therein and shall be applicable in both. Definition of terms in the Agreement shall first be governed by this Agreement, second by the incorporated Scope of Services (Exhibit A), third by the Supplemental Scope of Service (Exhibit A.1) and fourth by the incorporated Fee Schedule (Exhibit B). In the event of any conflict among the foregoing, the conflict shall be resolved in the order of priority set forth in the preceding sentence. If there is no applicable definition as described above, the terms, phrases, and words, and their respective derivations when used in this Agreement and the Scope of Services, shall have the meanings ascribed to them in the following order of precedence: first, in the most current edition of Black’s Law Dictionary and last, in the most current edition of the Merriam-Webster Collegiate Dictionary, if a term is not defined in the Agreement or Black’s Law Dictionary.

1.1. ACH: Automatic Clearing House

1.2. Agreement: This Agreement for Banking Services, including its articles, exhibits, addenda, and attachments.

1.3. Amendment: An amendment to this Agreement in writing, approved by the Director of Purchasing and Contracts, and signed by the County and Bank authorizing a

Exhibit Z - SAMPLE - DRAFT Contract Page 3 of 29 modification or revision to one or more terms or conditions of this Agreement.

1.4. Bank: Fill in with Company/Vendor Name Here

1.5. Bank Project Manager: Bank’s single point of contact that shall have responsibility for administering this Agreement and coordinating all activities regarding Bank, between County and Bank. The Bank’s Project Manager shall, at all times during the normal work week, be authorized to act on behalf of Bank regarding all matters involving the conduct of the performance pursuant to this Agreement and shall keep the County Project Manager continually advised of any designation of designee(s) that may serve as back-up for the Bank’s Project Manager.

1.6. Change Order: A written change or modification to this Agreement approved by the

County Project Manager and Bank, which is signed by the County and Bank authorizing an addition, deletion, or revision in the Scope of Services, or an adjustment in the Agreement price or time, without change to any other terms or conditions of the Agreement.

1.7. Compensation: The amount paid by the County to Bank for Services, detailed in Exhibits B.1, B.2, and B.3, regardless of whether stated as fixed fees, hourly rates, percentages, or other figures or formulas from which compensation can be calculated, which includes the total monies payable to the Bank. This includes all Services, labor, materials, supplies, travel, training, profit, overhead, costs, expenses, and any other costs necessary to complete work under the Scope of Services.

1.8. Constitutional Officers: Shall mean The Clerk of the Circuit Court of Volusia County, Volusia County Property Appraiser, Volusia Sheriff’s Office, Volusia County Supervisor of Elections, and Volusia County Tax Collector. For the purposes of this solicitation shall be Volusia County Property Appraiser, Volusia County Supervisor of Elections, and Volusia County Tax Collector.

1.9. Contract Administrator: The Director of Purchasing and Contracts or his/her designee responsible for addressing any concerns within this Agreement.

1.10. Contractor: The terms “Contractor” and “Bank” shall be considered synonymous throughout this Agreement.

1.11. Contractor's Services: Those Services within the Scope of Services of this

Agreement or any exhibit, attachment or addendum thereto which relates to the General Scope of Services in Section 4.1 to be performed by Bank in connection with Bank's employment or practice.

1.12. County: Shall mean the County of Volusia (a body corporate and politic and a subdivision of the State of Florida) including its districts, authorities, separate units of government established by law (constitutional), ordinance or resolution, partners, elected and non-elected officials, employees, agents, volunteers, and any party with whom the County has agreed by contract to provide additional insured status.

1.13. County Project Manager: The person to whom all communications pertaining to the day-to-day conduct of this Agreement shall be addressed. The Project Manager shall have authority to transmit instructions, to receive Project information, to interpret and

Exhibit Z - SAMPLE - DRAFT Contract Page 4 of 29 explain the County’s policy, and to make decisions pertinent to the Services covered by this Agreement; unless subject to approval of the Contract Administrator.

1.14. Deliverable(s): The products or services provided through the Scope of Services for this Agreement including but not limited to: other services, reports, written documentation, training, systems or processes.

1.15. Effective Date: The date that this Agreement is fully executed by Bank and the

County or September 1, 2026.

1.16. Indemnified Parties: The County and the Constitutional Officers.

1.17. Key Personnel: Bank’s personnel who are responsible for Bank’s day-to-day Project operations as described in Bank’s Proposal.

1.18. Project: The Project that is described in Exhibit A through Exhibit J (composites) of this Agreement.

1.19. Proposal: The document submitted by Bank in response to a formal solicitation (RFP No. 25-P-131TF), which is used to determine if Bank is highly qualified.

1.20. Run-out Period: Upon termination of the Agreement, the Run-out Period shall begin upon the termination date and expire twelve (12) months thereafter.

1.21. Scope of Services: The Services defined in this Agreement under the Scope of Services in Exhibit A and the Supplemental Scope of Services in Exhibit A.1, which are hereby agreed to by the parties in writing, and which includes Bank’s responsibility for performing and complying with all incidental matters pertaining thereto.

1.22. Services: Those services defined in the Scope of Services in Exhibit A.1 and the

Supplemental Scope of Services to be performed by Bank pursuant to this Agreement and its attached exhibits, including: the work, duties and obligations to be carried out and performed by Bank under the Agreement and pursuant to Exhibit A through Exhibit J (composites), attached hereto and made a part of this Agreement.

1.23. State: State of Florida.

1.24. Subcontractor: A person other than a material man or laborer who enters into an

Agreement with a Bank for the performance of any part of the basic agreement.

1.25. Warranty: The warranty or warranties as set forth in this Agreement including any warranties required by State Law or regulation.

2 EXHIBITS

2.1 The exhibits listed below are incorporated into and made a part of this Agreement.

2.1.1 Exhibit A - Scope of Services,

2.1.2 Exhibit A.1 - Banking Service Processes

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2.1.3 Exhibit B.1 - Prices & Services Chart

2.1.4 Exhibit B.1.A - Appendix, Services Descriptions

2.1.5 Exhibit B.2 – Net Earnings Chart

2.1.6 Exhibit B.3 - One-Time Transition Costs and Cost Offsets Chart

2.1.7 Exhibit C - Insurance Requirements

2.1.8 Exhibit D - Human Trafficking Affidavit

2.1.9 Exhibit C - Insurance Requirements

2.1.10 Exhibit E.1 - County Bank Accounts

2.1.11 Exhibit E.2 - Elections Bank Accounts

2.1.12 Exhibit E.3 - Property Appraiser Bank Accounts

2.1.13 Exhibit E.4 - Tax Collector Bank Accounts

2.1.14 Exhibit F.1 - EFT File Format

2.1.15 Exhibit F.2 - Positive Pay Format

2.1.16 Exhibit F.3 - Cleared Check Data File Format

2.1.17 Exhibit G.1 - E-Box Remittance Report

2.1.18 Exhibit G.2 - Tax Collector E-box Export

2.1.19 Exhibit G.3 - ICL File Format-DRAFT

2.1.20 Exhibit G.4 - Bank Reconciliation Data File

2.1.21 Exhibit G.5 - Cash Receipts Data File

2.1.22 Exhibit H - County Computing Security Procedures

2.1.23 Exhibit I - Average Cash Vault Deposits

2.1.24 Exhibit J.1 - County Average Daily Balances

2.1.25 Exhibit J.2 - Elections Average Daily Balances

2.1.26 Exhibit J.3 - Property Appraiser Average Daily Balances

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2.1.27 Exhibit J.4 - Tax Collector Average Daily Balances

2.1.28 Exhibit K – Bank Information (composite)

3 ORDER OF PRECEDENCE

3.1 If Bank finds any potential or possible inconsistency, conflict, error, or discrepancy in the Agreement, the order of precedence, Bank shall immediately call it to the County Project Manager’s attention, in writing, and request the County Project Manager’s interpretation and direction before proceeding with the Services affected thereby.

In the event of any conflicts or inconsistencies between any exhibit to the Agreement and the Agreement itself, such conflict or inconsistency shall be resolved by giving precedence in the following order:

3.1.1 In the event of any conflicts or inconsistencies between Exhibit A – Scope of

Services and any other exhibit of this Agreement in regard to the Scope of Services, Project specifications, performance criteria, or management metrics, Exhibit A – Scope of Services shall be controlling.

3.1.2 In the event of any conflicts or inconsistencies between Exhibits A.2, A.3, and

A.1 any other exhibit or addendum attached to this Agreement regarding the technical requirements, Exhibits A.2, A.3, and A.1 shall be controlling. In the event of any conflicts or inconsistencies between Exhibits A.2, A.3, and A.1, the Exhibits shall follow the following precedence: Exhibit A.3, then Exhibit A.2 and then Exhibit A.1.

3.1.3 In the event of any conflicts or inconsistencies between Exhibits B.1, B.2, and

B.3 and any other exhibit or addendum attached to this Agreement regarding the rates for compensation, Exhibits B.1, B.2, and B.3 shall be controlling.

3.1.4 In the event of any conflicts or inconsistencies between Composite Exhibit K and any other exhibit or addendum attached to this Agreement, the exhibits other than K shall take precedence and Exhibit K shall be considered last, except to the extent otherwise required by federal law or regulatory requirements. Composite Exhibit K, nor any part thereof, shall be considered the “Entire Agreement”.

3.1.5 In the event of any conflicts or inconsistencies between the Agreement and any exhibit to the Agreement in regard to all terms and conditions addressed in the Agreement, the Agreement shall be controlling.

4 SCOPE OF SERVICES. Bank shall provide Services under this Agreement and act as Bank to the County in accordance with the Scope of Services as specifically set forth in this Agreement and its exhibits.

4.1 Bank shall provide Banking Services in accordance with the Scope of Services and the Supplemental Scope of Services attached as Exhibits A and A.1.

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4.2 Performance Criteria:

4.2.1 All Services shall be performed in accordance with the Agreement and carried out under the direction of the County Project Manager.

4.2.2 All labor necessary to complete the Scope of Services shall be performed in a good and competent workmanlike manner, in accordance with industry standards and to the satisfaction of the County.

4.2.3 Changes to Scope of Services. The County may, at any time, by written Change Order, make changes within the general Scope of Services to be performed under this Agreement; unless otherwise allowed by the County in the written Change Order, such changes to the Scope of Services (or Bank’s claim for adjustment, described below) shall not allow, permit, or excuse any delay in the performance of the Services. Except as otherwise stated herein, if any such change causes an increase or decrease in Bank's cost of the Services or the time required for performance of the Services, the County may make an equitable adjustment by amending this Agreement and stating the equitable adjustment in such amendment. Determination of whether an increase or decrease in cost was caused by the change to the Scope of Services shall be in the County’s sole discretion. Any claim by Bank for adjustment under this article must be asserted in writing within thirty (30) days from the date of the County’s notification to Bank (whether made orally or in writing) of the change that caused the claim for adjustment;

otherwise, the claim shall be deemed waived. Except as otherwise provided in this Agreement, no charge for any extra Services or materials shall be allowed or approved by the County. No additional Services shall be performed or extra materials purchased until a written Change Order has been approved by Bank and County.

4.2.4 Time is of the Essence. Time is of the essence for all Services performed under this Agreement and all Projects performed in accordance herewith.

4.2.5 Authority to Act on Behalf of County. County's Purchasing and

Contracts Director, or such other proper authority pursuant to County policies and procedures, shall have the authority to approve, award, and execute all documents or other instruments required to effectuate changes, modifications, or additional service, so long as the then cumulative financial obligation of County for such additional items does not exceed the Director of Purchasing and Contracts’ authority under the County Code of Ordinances or policies and procedures. Any change, modification or additional service that causes the cumulative financial obligation of County for such additional items to exceed the Purchasing Director's or County Manager’s authority under the Procurement Code shall be presented to the Volusia County Council for approval.

5 RESPONSIBILITY OF CONTRACTOR

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5.1 Where questions exist as to the Scope of Services to be provided, Bank shall promptly confer with the County Project Manager to ascertain the functional criteria of the Scope of Services. The Services of Bank shall also include the following:

5.1.1 Bank shall keep the County informed of any changes or advancements in technology occurring any time prior to or during actual implementation of the Services to the extent that such changes and advancements may increase efficiency or otherwise allow for better services or reductions in costs to the County.

5.1.2 Bank covenants and agrees as follows:

That its allegations and representations regarding its special talent, training, and experience caused the County to select Bank to be the prime professional;

That Bank possesses the special skills to recognize material errors or omissions that would result in failures to appropriately perform in accordance with the Scope of Services;

That Bank shall adhere to the standard of care applicable to a contractor with the degree of skills and diligence normally employed by a licensed professional in its field or practice performing the same or similar Services in compliance with all applicable federal, state, and municipal laws, regulations, codes, and ordinances;

That Bank shall provide any Project data, summaries, reports, or studies, pursuant to Subsection this 5.1.2.4, accurately with regard to the information contained therein. County’s acceptance, approval, or reliance on any such documentation shall not release Bank from any liability if such information is incorrect or inaccurate, it being understood that the County is relying on Bank’s status as an industry professional in accepting such documentation.

5.2 Supervision. Subject to Subsection 5.1.2.4, Bank shall direct and supervise competent and qualified personnel and shall devote time and attention to the direction of the operation to ensure performance of obligations and duties as set forth herein.

Bank shall hire, compensate, supervise, and terminate members of its work force, and Bank shall direct and control the manner in which Services are performed including conditions under which individuals shall be assigned duties, how individuals shall report, and the hours individuals shall perform. Bank shall be responsible for all income tax, social security and Medicare taxes, federal unemployment taxes, and any other withholdings from the company’s employees’ and/or subcontractors’ wages or salaries. Benefits, if any, for Bank’s employees and/or subcontractors shall be the responsibility of Bank including, but not limited to, health and life insurance, retirement, liability/risk coverage, and worker's and unemployment compensation. Bank shall be solely responsible for the means, methods, techniques, sequences and procedures in

Exhibit Z - SAMPLE - DRAFT Contract Page 9 of 29 delivering Services pursuant to this Agreement. Further, Bank shall be responsible for assuring the County that finished or completed Deliverables comply with the requirements of this Agreement and the Scope of Services contained therein.

5.3 Assurance. Subject to Subsection 5.1.2.4, Bank gives the County its assurance that all Services performed under this Agreement shall be timely performed in a competent and workmanlike manner and in accordance with the specifications and requirements of the Agreement and any approvals required under the Agreement. All Services not conforming to the specifications and requirements of the Scope of Services shall be considered materially defective and constitute a breach of this Agreement.

5.4 Accuracy of Reports / Summaries. Bank shall be responsible for the professional and technical accuracy and the coordination of all data, reports, summaries, and any other Services furnished by Bank under this Agreement. Bank shall, without additional cost to the County, correct or revise any errors or deficiencies in its Services for which it is responsible.

5.5 Services to Comply with Specifications and Law. All Services performed by Bank including all general provisions, special provisions, job specifications, drawings, addendum, amendments to the basic Agreement, written interpretations, and written orders for minor changes in Services, shall comply with the Scope of Services and all applicable local laws, codes, ordinances and statutes.

5.6 Subcontractors.

5.6.1 Employment or Substitution of Subcontractors. Bank shall not employ any Subcontractor, other person, or organization of against whom the County may have reasonable objection, nor shall Bank be required to employ any Subcontractor against whom it has reasonable objection. Bank shall not make any substitution for any Subcontractor who has been accepted by the County without the County’s approval.

5.6.2 Disapproval of Subcontractors. County's disapproval or requirement of removal or replacement of Bank‘s employee or Subcontractor shall be deemed for lawful reasons if in County’s reasonable judgment, such Bank‘s employee or Subcontractor poses a threat or causes harm to the health, welfare, or safety, or morale of the County or its agencies, personnel or property or who fails any drug test administered in connection with this Agreement, or who has been convicted of a felony or a misdemeanor involving “moral turpitude” or has been released or dishonorably discharged or separated under conditions other than honorable from any of the Armed Forces of the United States.

5.6.3 Bank Responsible for Subcontractors. Bank shall be fully responsible for all negligent acts and omissions of its Subcontractor and f persons directly or indirectly employed by them and of persons for whose negligent acts any of them may be liable to the same extent that it is responsible for the negligent acts and omissions of persons directly employed by it. Nothing in the Agreement shall create any contractual relationship between any Subcontractor and the County or any obligation on the part of the County to pay or to see to the payment of

Exhibit Z - SAMPLE - DRAFT Contract Page 10 of 29 any monies due any Subcontractor, except as may otherwise be required by law. County may furnish to any Subcontractor to the extent practicable, evidence of amounts paid to Bank on account of specific Services done in accordance with the schedule of values.

5.6.4 Subcontractors to Act Pursuant to this Agreement. Bank agrees to bind specifically every Subcontractor to the applicable terms and conditions of the Agreement for the benefit of the County, and shall require all Subcontractors or other outside associates employed in connection with this Agreement to comply fully with the terms and conditions of this Agreement as such may apply to the Services being performed for Bank.

6 TERM OF AGREEMENT

6.1 The term of this Agreement shall commence on the Effective Date of this Agreement or when it is fully executed by all parties, whichever is later, and shall terminate five

(5) years from the Effective Date, except for those provisions which survive termination of the Agreement. Subsequent renewal term(s) up to five (5) years are permissible upon mutual written agreement between the parties.

6.2 The Services to be rendered by Bank shall be commenced, as specified in this

Agreement or as may be requested by the County and shall be completed within the time specified therein.

7 AGREEMENT PRICE AND COMPENSATION

7.1 Payment Pursuant to Fee Schedule. Bank shall be paid Compensation for all Services. Compensation listed in Exhibits B.1, B.2, and B.3 constitutes complete payment for all Services rendered under this Agreement, including the cost of all Projects, materials, equipment, labor, expenses (including reimbursable expenses), all mark-ups for overhead and profit more particularly described in Exhibits B.1, B.2, and B.3. The County agrees to pay Bank in current funds, as compensation for its Services.

7.2 Errors and Omissions in Pricing. Compensation shall not be adjusted because of errors or omissions not the fault of the County in computing the Services costs which result in an increase in the cost of this Agreement or because the time for completion varies from the original estimate, including completion or substantial completion of this Agreement prior to the scheduled or Agreement completion date or on account of County’s election to furnish any of the Services. In addition, Bank shall certify that the original Agreement price or Compensation for the Scope of Services and any additions thereto shall be adjusted to exclude any significant sums by which the County determines the price or Compensation was increased due to inaccurate, incomplete, or noncurrent wage rates and other factual unit costs.

7.3 Reimbursable Expenses. County’s payment to Bank pursuant to the Fee Schedule, attached hereto and incorporated herein as Exhibits B.1, B.2, and B.3, shall be full compensation for Services rendered and any expenses incurred in connection therewith, and Bank shall not be eligible for reimbursement for any expenses incurred

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7.4 Payments. Any payments shall be made in accordance with Exhibits B.1, B.2, and B.3. The rates expressed in Exhibits B.1, B.2, and B.3 shall govern Compensation and provide for payments against specified Deliverables and performance.

7.4.1 Approval of Payment. If, on the basis of the County Project Manager’s observation and review of Bank’s Services, the County Project Manager is satisfied that the Services has been completed and Bank has fulfilled all of its obligations under the Agreement, the County Project Manager, after receipt of a proper invoice, shall indicate in writing his or her approval of payment and present the invoice to Accounts Payable for payment. Otherwise, the County Project Manager shall return the invoice to Bank, indicating in writing the reasons for refusing to approve final payment. Subsequent to receiving a returned invoice, Bank will make the necessary corrections and resubmit the invoice and, if requested, provide explanation or substantiation for said invoice.

Regardless of the foregoing, approval of payment pursuant to this section shall not prevent the County from recovering amounts paid when the County subsequently discovers material defects or deficiencies in the services or work provided by Bank, which defects or deficiencies would have otherwise caused the County to withhold payment.

7.5 Invoices. Invoices or payment requests shall be addressed from Bank and submitted to the County’s Project Manager. All invoicing and payments, including the practices and procedures pertaining thereto, shall be governed by the applicable provisions of Part VII of Chapter 218, Florida Statutes.

7.5.1 Invoice Detail. Bank shall submit an invoice for which professional

Services were rendered to the County upon the completion and acceptance of the Services. Each invoice shall show detailed explanations of the Services accomplished and, if requested, provide substantiation for same. Invoices shall be in accordance with the Agreement prices set forth by labor hours by classification, associated rates, any material or subcontracted costs and any indirect rates or costs in accordance with the Agreement prices set forth hereto. All of the above shall sum to the total amount requested.

7.5.2 Bank’s Invoice(s) shall be accompanied by supporting data as may be required by the County Project Manager. County Project Manager shall review Bank's Invoice and supporting data and notify Bank in writing within ten (10) days from receipt of the statement if any amounts requested are disputed or lack adequate support or documentation.

7.5.3 Invoicing Pursuant to Agreement. Pursuant to Exhibit B, Bank shall invoice County for all payments due Bank under this Agreement. County shall pay invoices in accordance with this Agreement. Invoices shall be sent to the address specified by the County.

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7.5.4 Withholding. The County may withhold payment of any specific invoiced charges that it disputes in good faith and pay all undisputed charges on the invoice.

7.5.5 Payment Due. Within forty-five (45) days of acceptance by the County

Project Manager of all the Services for which Bank has submitted an invoice of professional Services, Bank shall be paid the unpaid balance of any money due for any undisputed Services covered by said invoice.

7.5.6 Taxes. County is a tax exempt entity and shall not be charged or invoiced for the payment of taxes for Services performed under this

7.6 Bank's Continuing Obligations. Bank’s obligation to perform Services in accordance with the Agreement shall be absolute. Nothing, including without limitation, the following, shall constitute an acceptance of Services not in accordance with the Agreement: approval of any progress; final payment to Bank; documentation confirming acceptance of the Services by the County; any payment by the County to Bank under the Agreement; any act of acceptance by the County or any failure to do so; any correction of defective Services by the County.

7.7 Non-appropriation. Notwithstanding any other term or provision of this Agreement, the continuation of this Agreement beyond a single fiscal year of County is subject to the appropriation and availability of funds in accordance with Chapter 129, Florida Statutes. Termination by the County due to non-appropriation shall be without a termination charge by Bank. The County shall not be obligated to pay Bank under this Agreement beyond the date of termination except as set forth in this Agreement.

County’s obligation to pay Bank is limited to the budgeted amount for a fiscal year approved by the Volusia County Council for the then-current fiscal year of this Agreement and is otherwise limited to legally available non-ad valorem tax revenues.

7.8 Unusual Costs. The Bank may petition the County at any time for an additional rate adjustment on the basis of extraordinary and unusual changes in the costs of operation that could not reasonably be foreseen by a prudent operator and which, by all reasonable expectations, will continue for at least one (1) year. If the Bank petitions for such an increase, the Bank shall also petition for a rate reduction on the basis of extraordinary and unusual changes in the costs of operation that could not reasonably be foreseen by a prudent operator and which, by all reasonable expectations, will continue for at least one (1) year; failure to make such petition may be grounds for Agreement termination.

The Bank’s request shall contain substantial proof and justification to support the need for the rate adjustment. The County may request from the Bank and the Bank shall provide such further information as may be reasonably necessary in making its determination. The County shall approve or deny the request, in whole or in part, within sixty (60) days of receipt of the request and all other additional information required by the County. Any price redetermination shall be solely based upon the documentation provided and the County reserves the right to rescind any price relief granted should the circumstances change and prices decrease.

8 PAYMENT OF SUBCONTRACTORS

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8.1 Payment. Bank shall pay its Subcontractors and suppliers, within thirty (30) days following receipt of payment from the County for such subcontracted Services or supplies. Bank agrees that if it withholds an amount as retainage from such Subcontractors or suppliers, that it shall release such retainage and pay same within thirty (30) days following receipt of payment of retained amounts from County.

8.2 Indemnification as to Payment of Subcontractors. Bank shall save, defend, and hold the County harmless from any and all claims and actions from Bank’s Subcontractors for payment for Services and Deliverables provided by Subcontractors for Bank under this Agreement. Regardless of the foregoing, nothing in this Agreement shall create any contractual relationship between any Subcontractor and the County or any obligation on the part of the County to pay or to see the payment of any moneys due any Subcontractor, except as may otherwise be required by law.

9 LIMITATION OF LIABILITY AND INDEMNIFICATION OF COUNTY (This section is non-negotiable.)

9.1 Indemnification. Bank shall indemnify, defend and hold harmless the County, including its districts, authorities, separate units of government established by law (including the Constitutional Officers), ordinance or resolution, partners, elected and non-elected officials, employees, agents, volunteers, and any party with whom the County has agreed by contract to provide additional insured status (the “Indemnified Parties”) from and against all claims, damages, losses, and expenses, including, but not limited to, attorney’s fees arising out of, resulting from, or incident to Bank’s performance of its obligations in whole or part of this Agreement, unless such injury or damage is occasioned solely by the fault, negligence, or willful misconduct of the Indemnified Parties.

9.2 Infringement Claim. Bank will indemnify, defend and hold harmless the Indemnified

Parties against any allegation that materials or services provided by the Bank under this Agreement infringe or violate any copyright, trademark, patent, trade secret, or any other intellectual or proprietary right of any third party. Notwithstanding the foregoing, Bank shall have no liability for such infringements or violations based on (i) any unauthorized alteration or modification of the materials or services by any party other than Bank or its Subcontractor, (ii) use of the materials or services in any manner other than as permitted under this Agreement, (iii) use of the materials or services in combination with any equipment or software not authorized by Bank or reasonably intended for use with the materials or services, or (iv) Bank’s compliance with specific information or instructions provided to Bank by any indemnified party. In no event will Bank be liable for any indirect, special, consequential or punitive damages, whether or not the likelihood of such damages was known to Bank, and regardless of the form of the claim or action or the legal theory (except tort) on which it is based.

9.3 Sovereign Immunity. The County and the Constitutional Officers expressly retain all rights, benefits and immunities of sovereign immunity in accordance with Section 768.28, (as amended) Florida Statutes. Notwithstanding anything set forth in any section of this Agreement to the contrary, nothing in this Agreement shall be deemed as a waiver of the County’s or the Constitutional Officers’ immunity or limits of liability beyond any statutory limited waiver of immunity or limits of liability for tort claims that may have been or may be adopted by the Florida Legislature, and the cap on the

Exhibit Z - SAMPLE - DRAFT Contract Page 14 of 29 amount and liability of the County and the Constitutional Officer for damages, regardless of the number or nature of claims in tort, equity, or contract, shall not exceed the dollar amount set by the legislature for tort. Nothing in this Agreement shall inure to the benefit of any third party for the purpose of allowing any claim against the County, which claim would otherwise be barred under the doctrine of sovereign immunity or by operation of law.

9.4 Limitation of Liability of County. The cap on the amount and liability in contract or equity of County for damages, regardless of the number or nature of such claims, shall not exceed SIX HUNDRED FIFTY THOUSAND DOLLARS ($650,000.00), provided that this limitation shall not apply to County’s liability for (i) overdrafts on any account of County subject to this Agreement (each, an “Account”), (ii) funds transfers or other withdrawals from or items drawn on any Account in accordance with this Agreement,

(iii) any item Bank cashes or collects for County or accepts for deposit or credits to any Account that is returned or dishonored, or for which Bank does not receive final settlement, for any reason, (iv) breach of any applicable law (e.g. Regulation CC, Regulation E, Uniform Commercial Code) or applicable funds transfer system and clearing and settlement house rules (e.g. NACHA rules), or any warranty that County makes (or Bank is required to make on behalf of County) thereunder, in connection with County’s use of the Services provided under this Agreement, (v) losses incurred by Bank as a result of Bank complying with County’s instructions, or relying on information supplied by County, in connection with a stop payment order, or (vi) failure by County to adequately safeguard or securely retain and destroy each original paper item (including nonpublic personal information appearing on the original paper item) for which County has created an electronic item using Bank’s Remote Deposit Capture Service or to properly secure the hardware County uses in connection with such Service.

Notwithstanding the forgoing exceptions to the County's $650,000 limitation of liability in contract or equity, these exceptions shall not be applicable to items improperly processed by Bank, whether by negligence or fraud committed by Bank or its employees, officers or subcontractors, including but not limited to: (i) incoming ACH debit transactions paid by Bank which should have been returned in accordance with County’s applicable ACH Fraud Filter service elections (e.g. block/review, account limits, preauthorizations) then in effect (including, if the review option is utilized, County’s timely pay/return decisions provided or default option selected in connection therewith) ; (ii) improper execution of County orders for outgoing wires or outgoing ACH transactions (it being understood and agreed that the parties’ respective responsibility and liability for such outgoing funds transfers shall be governed by Florida Statutes Chapter 670 (Uniform Commercial Code – Funds Transfers) or any successor statue to the extent applicable); or (iii) checks paid by Bank which should have been returned in accordance with the terms of Bank’s Image Positive Pay Service Description (including County’s timely instructions provided or default option selected in accordance with the terms thereof).

10 INSURANCE

Bank shall provide the required insurance detailed in Exhibit C for the entire term of the Agreement. Regardless of anything submitted as proof of insurance, Bank shall comply with all requirements of Exhibit C.

Exhibit Z - SAMPLE - DRAFT Contract Page 15 of 29

11 TERMINATION

11.1 County may terminate this Agreement upon at least two hundred seventy (270) days prior written notice to Bank.

11.2 Bank may terminate this Agreement upon at least two hundred seventy (270) days prior written notice to County.

11.3 Upon receipt of notice of termination by the County from Bank or upon delivery of notice of termination from the County to Bank, Bank shall:

11.3.1 For approved services occurring after the termination of this Agreement, Bank shall continue the services pursuant to the Scope of Services.

11.4 Effect of Termination/Run-out. Upon termination of a service, (1) terminating party shall notify the other party of the date on which such service shall cease and all rights granted to County with respect to that service shall terminate; (2) County shall pay all costs due and owed during the Run-out Period; and (3) County shall have the ability to access and download its records and reports until expiration of the Run-out period.

Bank agrees that it shall continue to perform the services during any post-termination Run-out Period in accordance with the terms and conditions of the Agreement.

11.5 Termination for Bankruptcy, Insolvency, or Business Wind Down. Either party may terminate Service(s) upon written notice to the other party if the other party: (1) voluntarily files for bankruptcy; (2) declares insolvency; (3) takes action to commence winding down its business; or (4) is named as a defendant in any involuntary bankruptcy or insolvency proceeding.

THE ABOVE DUTIES AND OBLIGATIONS SHALL SURVIVE THE CANCELLATION

OR TERMINATION OF THIS CONTRACT.

11.6 For all undisputed outstanding invoices submitted to the County prior to the effective date of the termination and subject to Article 6 - Term of Agreement, Article 7 – Agreement Price and Compensation, and this Article 11 - Termination, the County shall cause payments to be made to Bank within forty five (45) days of receipt of invoice. Bank shall invoice the County for any sums Bank claims to be owed by County under this Agreement for work performed from the last invoice to the effective date of termination. County shall review such invoice for payment and County shall pay any undisputed amount within forty five (45) days.

11.7 With the approval of the County and to the extent required by the County, settle all outstanding liabilities and all claims arising out of such termination. County's approval of such settlements shall be final for all the purposes of a termination under this Article 11 - Termination. In addition, Bank shall transfer title and deliver to the County, in the manner, at the times, and to the extent, if any, directed by the County of Deliverables, work-in-progress, reports, models, studies, and other materials produced as a part of, or acquired in connection with the performance of the Services terminated.

11.8 If Bank fails to cure a breach within ten (10) calendar days after receipt of notice from the County of said breach, the County may take over the Services and complete the Services and Bank shall be liable to the County for any increased cost of the Services

Exhibit Z - SAMPLE - DRAFT Contract Page 16 of 29 reasonably incurred by the County to complete Bank's unfinished Services. As such, County may apply unpaid Compensation due and owing to Bank prior to the default as a set off against the costs incurred by the County for taking over such Services.

11.9 The right of termination provided to the County and Bank herein shall be cumulative of all other remedies available at law.

11.10 All provisions of this Agreement that impose or contemplate continuing obligations on a party will survive the expiration or termination of this Agreement.

12 Dispute Resolution

12.1 Good Faith Efforts to Resolve. The parties to this Agreement shall exercise their best efforts to negotiate and settle promptly any dispute that may arise with respect to this Agreement in accordance with the provisions set forth in this Article 12, Dispute Resolution. Bank and County Project Manager shall use reasonable efforts to arrange personal meetings and/or telephone conferences as needed, at mutually convenient times and places, to address and work toward resolution of issues that arise in performance of this Agreement and any applicable statement of Services. Issues shall be escalated to successive management levels as needed.

12.2 Informal Dispute Resolution. If a dispute develops between the parties concerning any provision of this Agreement, or the interpretation thereof, or any conduct by the other party under this Agreements, and the parties are unable to resolve such dispute within five (5) business days or longer, that party, known as the Invoking Party, through its applicable Project Manager, shall promptly bring the disputed matter to the attention of the non-Invoking Party’s Project Manager or designated representative, as the case may be, of the other party in writing (“Dispute Notice”) in order to resolve such dispute.

12.3 Discovery and Negotiation / Recommended Procedures. Upon issuance of a

Dispute Notice, the Project Managers or designated representatives shall furnish to each other all non-privileged information with respect to the dispute believed by them to be appropriate and germane. The Project Managers shall negotiate in an effort to resolve the dispute without the necessity of any formal proceeding. If such dispute is not resolved by the Project Managers or designated representatives within ten (10) County Work Days (defined as weekdays [i.e. Monday, Tuesday, Wednesday, Thursday and Friday] not designated as holidays by the County) of issuance of the Dispute Notice, or such other time as may be mutually allowed by the Project Managers as being necessary given the scope and complexity of the dispute, the Project Managers may, depending upon the nature, scope, and severity of the dispute, escalate the dispute as indicated below:

County Work

Days Bank’s Representative County Representative

10 Bank’s Project Manager County Project Manager 10 Bank’s Sr. Vice President Director of Purchasing and

Contracts

20 Bank’s COO or President Deputy County Manager

Exhibit Z - SAMPLE - DRAFT Contract Page 17 of 29

12.4 Formal Dispute Resolution. At any point after issuance of a Dispute Notice under this section, either party may request and initiate formal non-binding mediation before a single mediator, which mediation shall be completed within thirty (30) days of initiation or such longer time as may be agreed upon by both parties as being necessary for the mutual selection of a mediator and scheduling of such mediation.

Any such mediation shall be convened and conducted in accordance with the rules of practice and procedure adopted by the Supreme Court of Florida for court-ordered mediation, Rule 1.700 et seq. of the Florida Rules of Civil Procedure, and Chapter 44, Florida Statutes. If the dispute remains unresolved after conducting such mediation, then either party may proceed to finalize any pending termination remedies and commence litigation in a court of competent jurisdiction. Each party shall bear its own costs and attorney’s fees for mediation or arbitration of an issue arising under this Agreement.

12.5 Right to Terminate Reserved. Regardless of the dispute resolution procedures provided for in this Article 12, Dispute Resolution, nothing herein shall affect, delay, or otherwise preclude a party from terminating this Agreement in accordance with the provisions of Article 11, Termination, it being understood that these dispute resolution procedures are intended as a means of resolving disputes both during the term of this Agreement and after termination or expiration thereof.

13 COUNTY DATA

13.1 Bank agrees and understands that all files and other information and data created in connection with the administration of this Agreement constitute a public record, except to the extent it is exempt or proprietary under Florida Law (Chapter 119, Florida Statutes) from disclosure or as preempted by federal law. Bank agrees to maintain for public record access such files and to maintain for public access such files after termination of this Agreement to the extent required by the laws of the State of Florida.

13.2 Upon any termination or expiration of this Agreement, Bank, upon County’s written request, shall promptly deliver, but not more than thirty (30) days after County’s request, to County an extract of County’s data hosted in the System in XML format or such other format as mutually agreed upon by County and Bank.

13.3 Location of County Data. While all or most U.S. customer data is stored in the U.S.

today, Bank may store data outside the U.S. in secure systems and environments, provided that all data storage and transmissions meet or exceed Bank’s U.S. physical and logical information security standards and controls, and are monitored and inspected by Bank on an ongoing basis. Bank shall permit access to customer data only by (a) personnel located within the United States; or (b) personnel located outside the United States who have a reasonable and direct business need for such access and who are trained on, and subject to, Bank's data security and privacy policies and standards. All customer service support involving interaction with County employees shall be handled within the territorial limits of the United States of America.

13.4 THE ABOVE DUTIES AND OBLIGATIONS SHALL SURVIVE THE CANCELLATION

OR TERMINATION OF THIS AGREEMENT.

14 LOCAL GOVERNMENT REQUIREMENTS

Exhibit Z - SAMPLE - DRAFT Contract Page 18 of 29

14.1 Public Records Law. Pursuant to section 119.0701(2)(a), Florida Statutes, the County is required to provide Bank with this statement and establish the following requirements as contractual obligations pursuant to the Agreement:

IF CONTRACTOR HAS QUESTIONS REGARDING THE

APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO

CONTRACTOR’S DUTY TO PROVIDE PUBLIC RECORDS

RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN

OF PUBLIC RECORDS AT 386-736-5935,

purchasing@volusia.org, by mail, Purchasing and Contracts Division, Attn: Public Records Custodian, 123 W. Indiana Ave.

RM 302 DeLand, FL 32720.

By entering into this Contract, Bank acknowledges and agrees that any records maintained, generated, received, or kept in connection with, or related to the performance of services provided under, this Contract are public records subject to the public records disclosure requirements of section 119.07(1), Florida Statutes, and Article I, section 24 of the Florida Constitution. Pursuant to section 119.0701, Florida Statutes, any Bank entering into a contract for services with the County is required to:

A. Keep and maintain public records required by the County to perform the services and work provided pursuant to this Contract.

B. Upon request from the County’s custodian of public records, provide the

County with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in Chapter 119, Florida Statutes, or as otherwise provided by law.

C. Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the Contract term and following completion or termination of the Contract if Bank does not transfer the records to the County.

D. Upon completion or termination of the Contract, transfer, at no cost, to the

County all public records in the possession of Bank or keep and maintain public records required by the County to perform the service. If Bank transfers all public records to the County upon completion or termination of the Contract, Bank shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If Bank keeps and maintains public records upon completion or termination of the Contract, Bank shall meet all applicable requirements for retaining public records.