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HomeMy WebLinkAbout23014AGREEMENT INFORMATION AGREEMENT NUMBER 23014 NAME/TYPE OF AGREEMENT WELLS FARGO BANKS, NA DESCRIPTION ASSET PURCHASE AGREEMENT / THE CITY'S LOCKBOX SERVICES PROVIDED BY REMITCO / MATTER ID:19-2620 EFFECTIVE DATE ATTESTED BY TODD B. HANNON ATTESTED DATE 1/3/2019 DATE RECEIVED FROM ISSUING DEPT. 2/13/2020 NOTE December 31, 2019 Emilio T. Gonzalez, City Manager Sandra Bridgeman, Chief Financial Officer Erica Paschal, Finance Director City of Miami 444 SW 2nd Avenue 6th Floor Miami, FL 33130 Re: Consent to Assignment and Assumption of Retail Image Lockbox Service Agreement between Wells Fargo Bank, N.A. and City of Miami Dear Emilio, Sandra, and Erica: The City of Miami, a municipal corporation of the State of Florida (the "City" or "Customer") and Wells Fargo, a national banking association organized under the laws of the United States and authorized to conduct business within the State of Florida ("Wells Fargo"),. are ,parties to an agreement (the "Lockbox Agreement") pursuant to which Wells Fargo provides its RetailImageLockbox Service to the City." Under the Lockbox Agreement, Wells Fargo processes checks and other instruments submitted in payment of obligations to ("Remittances") received at a post office box maintained on the City's behalf (the "Lockbox"). REMITCO LLC, a limited liability company organized under the laws of the State of Delaware and authorized to conduct business within the State of Florida ("REMITCO") is Wells Fargo's subcontractor for processing Remittances under the Lockbox Agreement. Pursuant to the Lockbox Agreement, on each Business Day': • Wells Fargo or REMITCO picks up the Remittances addressed to the Lockbox and transports them to a processing site or sites designated by Wells Fargo; • Wells Fargo or REMITCO opens the Remittances and processes them in accordance with the lockbox processing procedures set forth in the Lockbox Agreement; • Wells Fargo makes deposits of the acceptable checks and/or cash received in the Lockbox by crediting the amount of such checks and cash to the account that Customer maintains with Wells Fargo and that is designated for deposit of Remittances received through the Lockbox-(the "Account"); • Wells Fargo or REMITCO electronically images checks, remittance stubs and correspondence received in the Lockbox; • REMITCO electronically transmits information from processed Remittances to Wells Fargo for retrieval by Customer; and • Archival images of the processed Remittances are accessible to Customer via the Wells Fargo Commercial Electronic Office® ("CEO®") portal. • Wells Fargo and REMITCO entered into an Asset Purchase Agreement, dated March 19, 2019 (the "APA"), pursuant to which Wells Fargo has agreed to assign its customer contracts for the provision of the Retail Image Lockbox Service to REMITCO. The transactions contemplated by the APA closed on May 1, 2019 (the "Closing Date"). Wells Fargo will assign the City's Lockbox Agreement to REMITCO on January 1, ' Capitalized terms not defined in this letter are defined in the Wells Fargo Retail Image Lockbox Service Description (attached and incorporated). 2020, and REMITCO will assume and be responsible for providing the Retail Image Lockbox Service to the City under the Lockbox Agreement from and after that date. Pursuant to the provisions of the Lockbox Agreement, Wells Faro and REMITCO hereby request the City's consent to the assignment of the Lockbox Aereement from Wells Fargo to and assumption by REMITCO. Below is a brief explanation of the documentation that will and will not be assigned by Wells Fargo to and assumed by REMITCO in order to effectuate the assignment and assumption of the City's Lockbox Agreement. Documents that will be assigned to and assumed by REMITCO: • The Acceptance of Services or Treasury Management Product Enrollment (February 6, 2019), solely with respect to the Retail Image Lockbox Service; • The Wells Fargo Retail Image Lockbox Service Description; • The terms of the Wells Fargo Master Agreement for Treasury Management Services (the "Master Agreement"), solely with respect to the provision of the Retail Image Lockbox Service to the City under the Lockbox Agreement (with all references to "Wells Fargo Bank, N.A." or "the Bank" (other than with respect to CEO® portal) being deemed, following assignment and assumption, to be references to "REMITCO"). Terms of the Master Agreement applicable to services other than the Retail Image Lockbox Service and to deposit accounts the City maintains with Wells Fargo (including terms permitting Wells Fargo to debit the accounts for fees) are not assigned to nor assumed by REMITCO; and • Each of the (i) Amendment No. 2 Professional Services Agreement Between the City of Miami and Wachovia Bank, N.A. (February 26, 2008) and (ii) Professional Services Contract (November 30, 2001) (the "Custom Agreements"), solely with respect to Wells Fargo's provision to the City of the Retail Image Lockbox Service (the "Lockbox Portion"). For the avoidance of doubt, Wells Fargo's provision of any services to the City other than the Retail Image Lockbox Service (the "Non- Lockbox Portion") will not be assigned to nor assumed by REMITCO. Following the assignment of the City's Lockbox Agreement to and assumption by REMITCO, general provisions in the Custom Agreements that apply to both the Lockbox Portion and the Non-Lockbox Portion will apply to REMITCO with respect to the Lockbox Portion and to Wells Fargo with respect to the Non-Lockbox Portion of the Custom Agreements. The City and Wells Fargo acknowledge the Lockbox Agreement expired in November 2008 and has proceeded on a month -to -month basis since, with each of the City and Wells Fargo having the right to terminate the Lockbox Agreement upon 30 days' prior written notice to the other. For the avoidance of doubt, the Lockbox Agreement that will be assigned to and assumed by REMITCO continues on a month - to -month agreement with each of the City and REMITCO having the right to terminate upon 30 days' prior written notice to the other. The updated contacts and information for notices to REMITCO and to the City are provided below: To REMITCO: 6125 Lakeview Road, Suite 800 Attn: Tyrone Ballard Charlotte, NC 28269 With a copy to: Deluxe Corporation Attn: Contract Strategy 3660 Victoria Street North Shoreview, MN 55126 Email: contract.stratgey@deluxe.com To the City: Erica Paschal, Finance Director City of Miami, Finance Department 444 SW 2' Avenue, 6th Floor Phone: 305-416-1328 Email: EPaschal@miamigov.com Fax: With copies to: Ana Jackson, Finance Manager City of Miami, Finance Department 444 SW 2' d Avenue, 6th Floor Phone: 305-416-1322 Email: ajackson@miamigov.com Fax: 305-416-1987 And Victoria Mendez, City Attorney City of Miami, .Office of the City Attorney 444 SW 2' Avenue, 9th Floor Phone: 305-416-1800 Email: VMendez@miamigov.com Fax: 305-416-1801 Documents that will not be assigned to nor assumed by REMITCO: • The deposit account agreement governing the Account that the City maintains with Wells Fargo ("Account Agreement"). The Account will continue to be subject to the terms of the Account Agreement. The. City's Account will remain at Wells Fargo and not be assigned to REMITCO; however, following the Closing Date, REMITCO -will continue to credit Remittances directly to Customer's Account at Wells Fargo unless. Customer directs REMITCO to do otherwise. • The terms of the Acceptance of Services, Treasury Management Product Enrollment Form and Master Agreement with respect to services Wells Fargo provides to -the City other than the Retail Image Lockbox Service: Each of the Acceptance of Services, Treasury Management Product Enrollment. Form and Master Agreement will remain in full force and effect between the City and Wells Fargo to the extent that it. governs or is incorporated into any agreement between the City and Wells Fargo other than the Lockbox Agreement. • Any licenses, Wells Fargo user guides (including terms of use), or other terms governing the City's use of or access to Wells Fargo's CEO® portal or the website hosted by Wells Fargo for the purpose of allowing the City to access archival images of Remittances (the "Archival .Images Website"), or related to services other than the Retail Image Lockbox Service. • The Non-Lockbox Portion of the Custom Agreements. If the City utilizes Wells Fargo's Smart Decision® Service or another method of accounts receivable conversion offered by Wells Fargo, then, based on the City's preference, Issuer Preference, or Bank Preference, Wells Fargo will continue after the assignment of the City's Lockbox Agreement to REMITCO to (a) convert each eligible Electronic Image and Remittance to an ACH debit entry on the deposit account on which it was drawn, in which case the conversion and processing of such ACH debit entry will be governed by and subject to Wells Fargo's separate ACH Origination Service Description; (b) process remaining Electronic Images in accordance with Wells Fargo's separate Service Documentation, as selected by the City for non -eligible Electronic Images and Items; or (c) process remaining Items in Accordance with the Account Agreement. Wells Fargo has agreed to provide transitional billing agent services to REMITCO for a period of time after the Closing Date with respect to the assigned Retailed Image Lockbox Service contracts. Once the City's Lockbox Agreement is assigned to and assumed by REMITCO, Wells Fargo will continue to bill the City on behalf of REMITCO for Retail Image Lockbox Service performed by REMITCO. For a period of time following the assignment of the City's Lockbox Agreement to and assumption by REMITCO, Wells Fargo will continue to allow the City to access the Archival Images Website through Wells Fargo's CEO® portal. Remittances received after the Closing Date will be viewablethrough the CEO® portal. Eventually, however, the City will be required to log on to a different website hosted by REMITCO in order to view the City's-archival images of Remittances. Prior to the transition, REMITCO will provide to the City's designated contacts below .written notice on or by January 10, 2020 with the new URL and login information allowing the City to access the archival images of Remittances on REMITCO's website. REMITCO will communicate with the City directly concerning the Lockbox Agreement, including any modifications to the terms and conditions of the Lockbox Agreement that REMITCO intends to make after its assignment to and assumption by REMITCO. Such modifications will only be effective following the assignment of the City's Lockbox Agreement to and assumption by REMITCO. Until the assignment to and assumption by REMITCO occurs, the terms of the City's Lockbox Agreement will continue to govern the City's use of the Retail Image Lockbox Service unless modified by Wells Fargo. By executing this letter, you on behalf of the City (i) acknowledge and agree that this letter is timely and sufficient for all purposes under the Lockbox Agreement, (ii) acknowledge -the City's consent to, and grant the City's waiver with respect to, the assignment of the Lockbox Agreement to and assumption by REMITCO as a result of the transactions contemplated' by the APA, (iii) acknowledge and agree that .the Lockbox Agreement will remain in full force and effect in accordance with its terms prior to the date of the assignment to and assumption by REMITCO, unless modified by Wells Fargo and agreed to by the City, and (iv) acknowledge and agree that the Lockbox Agreement will remain in full force and effect in accordance with its terms following the assignment to and assumption by REMITCO, except to the extent modified by REMITCO (as referenced above) and agreed to by the City. On behalf of Wells Fargo and REMITCO, please accept our sincere appreciation for the City's. partnership and cooperation during this transition. [Signature page follows] Sincerely, Wells Fargo Bank, N.A. By: Name: •tcrh,.. Title: S L By t (- Name: [- Title: REMI CO LLC esimpossimmies. B Name: E� C.� Lebo Title: 'b -01-- (, Q - JULIE ANN JOHNSON NOTARY PUBLIC - MINNESOTA My Commission Expires Jan. 31, 2024 Consented to, Acknowledged • nd Agreed pursuant to City Commission Resolution No. R-19-0491, adopted `, ember 12, 2019 • ttached and incorporated): City oamy a unici a corporate of the State of Florida • By: Emi to T. Gonzalez, Ci ►:e Attegt: Todd B. Hannon, Approved a By: Ann -Marie Sharpe, Approved as to F By: Victoria Mendez, City Attorney ev lw=4434, Attachments: equirements: Management Director and Correctness: Approv-:. :'Transactio. By: San'ra Bridgeman, Cof FinOfficer and / By: Erica Paschal, F nance Director Wells Fargo Retail Image Lockbox Service Description / City Commission Resolution No. 19-0491, adopted December 12, 2019 RETAIL IMAGE LOCKBOX SERVICE DESCRIPTION WELLS FARGO 1. Introduction. The Service Documentation contains the terms governing the Wells Fargo Bank, N.A. ("Bank") Retail Image Lockbox service ("Service") and includes: (a) this Service Description; (b) the Acceptance of Services or Treasury Management Product Enrollment form; (c) the Master Agreement for Treasury Management Services ("Master Agreement"); (d) the accountagreement governing the account(s) Company uses inconnection with the Service; and (e) .User Guides which include Terms of Use, software, software licenses, price schedules, specifications, instructions, and notices. This Service Description and the Master Agreement are posted at Bank's Commercial Electronic Office® (CEO®) portal. If there is a conflict among the documents comprising the Service Documentation, 'they will govern in the order listed above. Company's use of the Service confirms Company's receipt of and agreement to be bound by the applicable Service Documentation. If an enhancement to the Service or other change: requires a change to this Service Description, Bank will post an updated Service Description on the CEO® portal. When required by applicable law, Bank will notify Company of the update. If Company continues to use the Service after the update takes effect, Company will be deemed to have agreed to the update. 2. Scope of Service. The Service covers the processing of checks and other instruments submitted in payment of obligations to Company ("Remittances"). Commencement of Service. The Service will start on the date separately agreed to by Bank and Company if the following events have occurred before such date: 3.1. The United States Postal Service has assigned the Lockbox (as defined in Section below) to Company with the number and at the address specified by Bank to Company; 3.2. The Account (as defined in. Section 6 below) has been opened and. is in good standing;. 3.3. Company has designated to Bank in writing the processing .options selected by Company for the Service;: and `3.4. Company has provided to Bank such other information and documents as Bank requests to enable Bank to commence and operate the Service for Company and to enable Bank to comply with its other obligations under this Service Description. 4. Lockbox. Company will direct its customers to mail Remittances to the post office box identified in the Lockbox Service Set-up Form, or otherwise identified in writing to Company (the "Lockbox"). Bank (including any subcontractor of Bank) will have exclusive access to the TM-2350 Retail Image Lockbox Service Description Page 1 of 7 Revised 06-01-2017 Lockbox. Bank will give appropriate instructions concerning the Lockbox to the United States Post Office where the Lockbox is located. 5. Processing Lockbox Mail. Each Business Day (a day on which Bank, is open to conduct its regular banking business, other than a Saturday, Sundayor public holiday), Bank or its subcontractor will pick up at, and transport from, the Lockbox to the processing site or sites designated by Bank (each a "Processing Site") the Remittances addressed to the Lockbox. Except as otherwise specifically provided in this Service Description, Bank or its subcontractor will open the Remittances and process them in accordance with the lockbox processing - procedures set forth in this Section 5 (the "Processing Procedures").: Company agrees to instruct its customers and other obligors not to send cash to the Lockbox. 5.1. - Disposition of Remittance Materials. On each day Bank offers the Service, Bank will collect from the Lockbox the envelopes and other contents .of the Lockbox. Bank will open the envelopes and determine whether they contain any Remittances, remittance • statements, invoices, correspondence, checks, cash, papers, documents, or other items. Unless otherwise requested by Company (the business entity receiving the Service) and agreed to by Bank, if cash is sent with any remittance materials the cash will be removed from theenvelope containing the remittance materials and a credit advice of the amount of the cash will be placed in such envelope with the remainder of the envelope's contents. Except as otherwise specifically provided in these Processing Procedures or elsewhere in this Service Description; or as specifically requested by Company and agreed to by Bank, Bank will not reconcile checks, cash or other items'in the envelopes to invoices, to remittance statements, or to any other documents or papers in the envelopes or elsewhere. Bank will process any checks, instruments and any cash, in the.envelopes by automated means, unlessan envelope does not contain._ a remittance statement or invoice or coupon, in which case the checks or cash will be processed manually (a "Manually Processed Check"), as otherwise provided in these Processing Procedures and, if so provided in these Processing Procedures, deposit such checks andcash in the Account. 5.2. Document Identification, Imaging, and Data Capture. Bank or its subcontractor will (i) print an audit trail identification number on each of the remittance documents that it processes, (ii) image all checks, remittance stubs and correspondence included among the remittance materials, and (iii) electronically capture OCR data from remittance documents, such as account number and amount due. 5.3. Checks Deposited under Automated Processing. Unless Company gives Bank timelyinstructions to the contrary using .the Retail Lockbox Client Decision Module available through Bank, with regardto a. particular check, each check processed under automated check processing procedures will be deposited as provided in Section 5.6 of these Processing Procedures even if (i). the numerical and written amounts of the. check are not the same, (ii) the numerical and written amounts on the check do not correspond to the amount on any invoice or remittance statement sent withthecheck, (iii) there is no payee on the check, (iv) the check is postdated or staledated, (v) the drawer of the check cannot be determined, (vi) the check does not have a date or a signature, or (vii) the check contains alterations or restrictive notations. • . _ 5.4. Handling of Rejected Checks. Bank will evaluate each check or remittance document which it could not initially: process electronically, and if Bank determines, in its sole discretion, that such check or remittance document canreasonably be . corrected, repaired or otherwise processed, Bank will attempt to correct, repair, or complete the processing of such check or remittance document: If Company has TM-2350 Retail Image Lockbox Service Description Page 2 of 7 Revised 06-01-2017 requested special handling of rejected checks, Bank will process such checks manually in accordance with Company's written instructions to Bank; provided, however, that Bank will not deposit a rejected check listed in an electronic stop payment file which Bank has received from Company in accordance with Bank's specifications for such files. 5.5. Restrictive Notations. Bank will not inspect checks, whether processed by automated means or processed manually, to determine whether they bear restrictive notations, such as "Paid in Full". Bank will have no liability whatsoever, despite anything to the contrary in this Service Description, for depositing or otherwise handling any check bearing a restrictive notation in accordance with these Processing Procedures, regardless of whether Bank has knowledge of such restrictive notation. 5.6. Deposits of Checks and Cash. During each Business Day,. Bank will make deposits of the acceptable checks and cash received in the Lockbox by crediting the Account for the amount of such checks and cash. If a check is processed by automated means, Bank or its subcontractor will capture the information on the scan line on the remittance statement or invoice or coupon accompanying the check and transmit such information .. to Company electronically on a daily basis. Company will determine what information is placed on the scan line of Company's remittance statements, invoices or coupons. If the check is a Manually Processed Check, Bank will manually enter into its database the account number and amount of the check and transmit -such information to Company electronically on a daily basis. Except as otherwise specifically provided -in this Service Description, the normal and customary laws, rules, practices and procedures for handling deposits to checking accounts will apply to these Processing Procedures and the Service. . 5.7. Imaging. Bank or its subcontractor will electronically image checks, remittance stubs and correspondence received in the Lockbox. Company acknowledges and agrees that the images are not works made for hire and are the property of Bank and not of Company. 5.8. Transmission of Information from Processed, Remittances. Each Business Day that Bank offers the Service, .Bank will electronically transmit to Company, in_, accordance with the. transmission method and file format agreed upon between Bank and Company, information from processed remittances. . 5.9. Mailing Checks to Company. Unless otherwise specified by Company in writing to Bank, Bank will mail to Company, in accordance with the terms of this Service Description, any checks enclosed in an envelope with remittance materials which are not deposited in accordance with these Processing Procedures. 6. Account. Company will maintain a deposit account with Bank, which Company will designate in the Lockbox Service Set-up Form or otherwise in writing, to which Bank or its subcontractor will deposit Remittances received through the Lockbox, throughout the term of the Service (the "Account"). Company understands that this Service Description covers the lockbox service to be provided by Bank and, except as specifically provided in this Service Description, does not cover the handling of the Account or the processing of checks drawn on the Account. Except as otherwise specifically provided in this Service Description, the Account will be handled and checks drawn on the Account will be processed by Bank as Bank would perform such responsibilities with respect to any other demand deposit account at Bank. As a result, the Account will be subject to, and Bank's operation of the Account will be in accordance with, -the TM-2350 Retail Image Lockbox Service Description Page 3 of 7 Revised 06-01-2017 terms and provisions of Bank's deposit account agreement governing the Account (the "Account Agreement"), a copy of which Company acknowledges having received. 7. Deposits and Confirmations. Company authorizes. Bank to endorse checks and other payment instruments received at the Lockbox, and to deposit them into the Account as provided in the Processing Procedures. If any payee of a check or other payment instrument received in the Lockbox is a legal entity other than Company, Company represents and warrants to Bank that Company has the proper authorization from the. payee to have the check endorsed for deposit, and deposited, into the Account, and Company agrees to indemnify Bank against any losses, liabilities, damages, claims, demands, obligations, actions, suits, judgments, penalties, costs or expenses, including, but not limited to, attorneys' fees (collectively, "Losses and Liabilities") suffered or incurred by Bank as a result of, or in connection with, Company's failure to have proper authorization. Bank will provide to Company an advice of deposits and other credits made to. the Account. Company agrees to notify Bank's customer service center, whose address and telephone number is available upon request from Bank, (i) of any error in an advice of deposit within fourteen (14) calendar days after Company receives such advice of deposit and (ii) of any error in a bank statement; or of any failure of a bank statement to show a deposit .that should have been made during the period covered by the statement, within thirty (30) calendar days after Company receives such bank statement. The liability of Bank for such errors is limited as provided in Section 17 of this Service Description. 8. Accounts Receivable Conversion. If Company utilizes Bank's Smart Decision® service or another method of accounts receivable conversion offered by Bank, Bank or its subcontractor will, on each Business Day, create an "Electronic File" that includes electronic images of Remittances that are received in the Lockbox (each, an "Electronic Image") and other information regarding Remittances, and will process the Electronic File and Remittances according to the processing criteria Bank has on file for Company, the issuer of an Electronic Image or Remittance, and. Bank (each, respectively, a "Company Preference," "Issuer Preference," or "Bank Preference.") Based on these Preferences, Bank will (a) convert each: eligible Electronic Image and Remittance to an ACH debit entry on the deposit account on which it was drawn, in which case theconversion and processing of such ACH debit entry will be governed by and subject to Bank's separate ACH Origination Service Description, including, without limitation, the indemnity provisions thereunder; (b) process remaining Electronic Images in accordance with Bank's separate Service Documentation, as selected by Company for non -eligible. Electronic Images and Items; or (c) process remaining Items in accordance with. Bank's Commercial Account. Agreement or other applicable deposit account agreement. If a Company Preference or an Issuer Preference conflicts with a Bank Preference, with respect to an Electronic Image or an Item, Bank will process the Electronic Image or Item in accordance with the Bank Preference. 9. Access to Lockbox Images. The Service will allow Company to enter a website hosted by Bank or its subcontractor (the "Website") for the purpose of accessing archival images of Remittances and other remittance materials processed through the Lockbox, and giving Bank or its subcontractor certain types of instructions with regard to the processing of such remittance materials. Company agrees to use the Website only in accordance with this Service Description and any notices and information posted on the Website (collectively, the "Website Use Documentation"). Persons entering the Website for Company (the "Users") must also accept any "terms of use" for the Website which appear on the Website when a User initially logs on. TM-2350 Retail Image Lockbox Service Description Page 4 of 7 Revised 06-01-2017 10. Security Procedures. 10.1. Bank or its subcontractor will provide each User with a multi -factor authentication compliant access method (which may consist of a combination of user names, passwords, passphrases, digital certificates and/or tokens) to be used whenever the User enters the Website. 10.2. It is Company's responsibility to ensure that any user names, passwords, passphrases, digital certificates and tokens provided in connection with use of the Website (collectively, "Security Devices") are known to, and used only by, persons who have been properly authorized by Company to access the Website and use the Service through the Website. 10.3. FAILURE TO PROTECT SECURITY DEVICES MAY ALLOW AN UNAUTHORIZED PARTY TO (1) USE THE SERVICE, (2) CORRECT, CHANGE, VERIFY, OR SEND DATA USED WITH THE SERVICE, (3) SEND INFORMATION AND COMMUNICA- TIONS TO, OR RECEIVE INFORMATION AND COMMUNICATIONS FROM, BANK OR (4) ACCESS COMPANY'S ELECTRONIC COMMUNICATIONS AND FINANCIAL DATA. ALL ENTRIES INTO THE WEBSITE, ALL COMMUNICATIONS SENT, AND ALL USES OF THE SERVICES, THROUGH COMPANY'S SECURITY DEVICES WILL BE DEEMED TO BE ENTRIES, USES, AND COMMUNICATIONS AUTHORIZED BY COMPANY AND SHALL BE BINDING UPON COMPANY. COMPANY ASSUMES THE ENTIRE RISK FOR THE FRAUDULENT OR UNAUTHORIZED USE OF ALL SECURITY DEVICES. Company. acknowledges the importance of developing internal procedures to limitsuchrisk, which procedures will include, at a minimum, (a) notifying Bank immediately when any new person becomes a User or when any existing User stops being a User, (b) disabling access to the Website immediately for each User who stops being a User, and (c) not keeping, in any form or in any place, lists of Security Devices. 10.4. Company agrees to notify Bank immediately when Company becomes aware of any loss or theft of, or any unauthorized use of, any Security Device. Company also agrees to notify Bank immediately when Company becomes aware of any unauthorized entry into the Website. 11. Use of Certain Software to Access the Website. In using the Website, Company will be sending, financial .and other data as well as electronic messages directly to Bank or Bank's subcontractor through the Internet. Company acknowledges that when the Internet, or other electronic communications facilities, are used to transmit or receive data and messages, the data and the messages may be accessed by unauthorized third parties. To reduce the likelihood of such third party access, Company agrees to transmit and receive data and messages through the Website using only software, including, but not limited to, browser software, or other access devices that support the Secure Socket Layer (SSL) protocol or other protocols required by, or acceptable to, Bank, and to follow the log -on procedures established by Bank or its subcontractor that support such protocols. 12. Restricting or Terminating. Access to the Website. In addition to, and not in substitution for, any provision in this Service Description or the other Service Documentation, Company understands and agrees neither Bank nor its subcontractor will in any way be obligated to permit Users accessto the Service through the Website if (a) such use or access is inconsistent with any term or condition applicable to the Service or the Website or to the information to be accessed, (b) such use or access is not permitted by applicable state or TM-2350 Retail Image Lockbox Service Description . Page 5 of 7 Revised 06-01-2017 federal law or. regulation, (c) Bank has reasonable cause to believe that such use or access may not be authorized by Company or any third person: whose authorization Bankbelieves is necessary for such use or access, or (d) Bank has reasonable cause to deny such use or access for Company's protection or the protection of Bank or Bank's subcontractor. If the Service cannot be used through the Website, Bank will make reasonable efforts for the Service to be used by other means. Neither Bank nor its subcontractor shall have any liability to Company for any losses or damages Company may suffer or incur as a result of any such termination. . 13.. Decisioning Module. If Bank's decisioning module is available to Company; and Company elects to it in connection with the Service, Company will be able to send instructions through the Website to Bank or its subcontractor as to how to process certain Remittanceswhich Bank classifies as either "processable suspend" or "unprocessable" (collectively, the "Unprocessable Items"). Company will have several options for instructions, as agreed upon in advance by Bank and Company. Such options may include one or more of the following: (i) apply the Unprocessable Item to a specific customer account, (ii) apply.the Unprocessable Item to Company's suspense account, (iii) reject the Unprocessable Item and have it placed in Company's reject package, or (iv) direct Bank to issue a letter of pre -arranged content to the remitter of the Unprocessable Item. Each message related to the processing of an Unprocessable Item (a "Decisioning Instruction") must be received by Bank or its subcontractor by the cutoff time for deposit or processing, of such item which Bank and Company have mutually agreed upon during implementation of the Service. If no Decisioning Instruction is received by the specified deadline, the Unprocessable Item will be handled in accordance with the Processing Procedures or any other standing instructions applicable such. items. Bank will have no liability or responsibility whatsoever for any keying errors, Company system issues, or misapplied payments resulting from Company's Decisioning Instructions. 14. Customer Service. Any questions or problems that Company has with respect to the Service should be addressed to Bank's customer service center at the telephonenumber and address separately disclosed to Company. . 15. Claims, Legal Progress and Notices. If Bank receives any claim, notice; legal process or court order relating to the Remittances, the Lockbox or the Account, Bank will comply with it if Bank determines in its sole discretion that the legal_process, legal notice or court order is legally binding on it. 16. Indemnification. Company agrees to indemnify Bank and its officers, directors, employees, agents and subcontractors (collectively, "Indemnified Parties") and hold each of the Indemnified Parties harmless from and against any and all losses, liabilities, claims, damages, demands, obligations, actions, suits, judgments, penalties, costs or expenses, including, but not limited to, attorneys' fees (collectively; "Losses and Liabilities"):which any one or more of the Indemnified Parties suffers or incurs in relation to (i) any keying errors, Company system. issues, or misapplied payments resulting from Company's Decisioning Instructions, or (ii) any action taken by Bank or its subcontractor in response to a Decisioning Instruction, except to the extent that any such Losses and Liabilities are directly caused by Bank's gross negligence or willful misconduct. . 17. Limitation of Liability. In addition to the other limitations on Bank's liability contained in the Master Agreement, if Company incursa material loss which results directly from Bank's or its subcontractor's negligence or breach in performing the Service and (i) if such negligence or breach is a failure todeposit any check whichshould have been deposited Which should have been processed, pursuant to this Service Description, the liability of Bank and its subcontractor. shall be limited to direct money damages in an amount not to exceed interest on the amount of TM-2350 Retail Image Lockbox Service Description Page 6 of 7 Revised 06-01-2017 the check at a rate equal to the cost of funds (at a reserve adjusted daily interest rate which Bank will determine in good faith) for the time period such amount is not in the Account, which time period for the purpose of calculating. the .interest will not extend beyond the end of the thirty (30) calendar day notice period referred to in Section 7 of this Service Description, and (ii) if such negligence or breach results from any other action or failure to act by Bank or its subcontractor, the liability of Bank and its -subcontractor shall, unless otherwise. provided by any law which cannot be varied by contract, be limited to direct money damages in an amount not to exceed the lesser of (A) three (3) times all the Service Fees charged or incurred in relation to the Service during the calendar month immediately preceding the calendar month in which the loss occurred (or, if no such fees were charged or incurred in the preceding month; such fees charged or incurred in the month in which the a loss occurred), or (B) Two Hundred Thousand Dollars ($200,000.00). 18. Termination. Upon termination of the Service, Bank will (i) close the Lockbox, and (ii) dispose of the mail addressed to the Lockbox in the manner instructed by Company for a period of three (3) months after the termination date, unless arranged otherwise between Company and Bank, with Service Fees with .respect to such disposition based on Bank's estimate being prepaid directly to Bank at the time of such termination in immediately available funds or by another payment method acceptable to Bank in its sole discretion. 19. Assignment. Notwithstanding anything to the contrary in the Agreement, the rights and obligations of Bank with respect to the Service shall be assignable to any successor in interest without restriction. 20. Instructions. Bank is authorized to act on any instructions received by Bank if (i) such instructions purport to be made in the name. of Company, (ii) Bank reasonably believes that, they are so made, and (iii) they do not conflict with the terms of this Service Description, including, but not limited to, the Processing Procedures, as. such terms may be amended from time to time, unless the conflicting instructions are supported by a court order. 21. • Authorized Persons. Any person identified by Company in the. Lockbox Service Set-up Form. or any certification, notice or other communication delivered to Bank may receive information, communications and notices regarding the Service, and is authorized to transact all business, make all agreements and sign and deliver all documents in connection with the Service. If the. identity of such a person changes Company will promptly notify Bank in writing: Bank will have a reasonable time after receipt of a certification, notice or other communication to act on it. 22 Software, Hardware and Backup Requirements. Upon notice from Bank of a failure of any software, hardware or other equipment necessary for Bank to -perform in accordance with this Service Description, Company will as soon as reasonably possible deliver to Bank all data in Company's possession or under its control. which Bank reasonably requests in order for Bank to continue to provide the Service. 23. Survival. Sections 7, 8, 10, 12, 16, 17 and 23 of this Service Description will survive termination of the. Service. 24. Terminology. As used in this Service Description and in the Agreement as applied to this Service, "negligence" will mean a material failure to use that degree of care that would be used under the same or similar circumstances by a national banking association having substantially the same volume and type of lockbox activity and approximately the same number, size and diversity of lockbox customers. TM-2350 Retail Image Lockbox Service Description Revised 06-01-2017 Page 7 of 7 b City of Miami Legislation Resolution: R-19-0491 City Hall 3500 Pan American Drive Miami, FL 33133 www.miamigov.com File Number: 6788 Final Action Date: 12/12/2019 A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), CONSENTING TO, ACCEPTING, AND APPROVING THE ASSIGNMENT BY WELLS FARGO BANK, N.A. ("WELLS FARGO" AND "ASSIGNOR") TO ITS CURRENT SUBCONTRACTOR REMITCO LLC ("REMITCO" AND "PROVIDER/ASSIGNEE") FOR PROCESSING REMITTANCES UNDER THE RETAIL IMAGE LOCKBOX SERVICE AGREEMENT ("LOCKBOX AGREEMENT") BETWEEN THE CITY OF MIAMI, A MUNICIPAL CORPORATION OF THE STATE OF FLORIDA ("CITY" AND "CUSTOMER"), AND WELLS FARGO; AUTHORIZING THE CITY MANAGER TO NEGOTIATE AND EXECUTE A CONSENT TO ASSIGNMENT AND ASSUMPTION OF THE LOCKBOX AGREEMENT, IN A FORM ACCEPTABLE TO THE CITY ATTORNEY, TO INCORPORATE REMTICO AS THE NEW COMPANY TO PROVIDE CONTINUING RETAIL IMAGE LOCKBOX SERVICE ("SERVICE(S)") TO THE CITY UNDER THE LOCKBOX AGREEMENT PURSUANT TO SECTION 18-85 OF THE CODE OF THE CITY OF MIAMI, AS AMENDED ("CITY CODE") AS AUTHORIZED BY CITY COMMISSION RESOLUTION NO. R-07-0648, ADOPTED NOVEMBER 9, 2007, FOR MONTH -TO -MONTH SERVICES ON A PER ITEM SCHEDULE BASIS; FURTHER AUTHORIZING THE CITY MANAGER TO NEGOTIATE AND EXECUTE ALL OTHER DOCUMENTS, INCLUDING ANY AMENDMENTS, RENEWALS, EXTENSIONS, WAIVERS OF NOTICE(S), AND MODIFICATIONS TO THE LOCKBOX AGREEMENT, SUBJECT TO ALLOCATIONS, APPROPRIATIONS, AND BUDGETARY APPROVAL(S) HAVING BEEN PREVIOUSLY MADE, AND IN COMPLIANCE WITH APPLICABLE PROVISIONS OF THE CITY CODE, INCLUDING THE CITY'S PROCUREMENT ORDINANCE, ANTI -DEFICIENCY ACT, AND FINANCIAL INTEGRITY PRINCIPLES, ALL AS SET FORTH IN CHAPTER 18 OF THE CITY CODE, ALL IN A FORM ACCEPTABLE TO THE CITY ATTORNEY, AND IN COMPLIANCE WITH APPLICABLE REGULATIONS, AS MAY BE NECESSARY FOR SAID PURPOSE. WHEREAS, the City of Miami("City") and Wells Fargo Bank, N.A. ("Wells Fargo" and "Assignor") are parties to a Retail Image Lockbox Service Agreement ("Lockbox Agreement") pursuant to which Wells Fargo provides its Retail Image Lockbox Service ("Service(s)") to the City; and WHEREAS, under the Lockbox Agreement, Wells Fargo processes checks, and other instruments submitted in payment of obligations to the City ("Remittances"), received at a post office box maintained on the City's behalf ("Lockbox"), and Remitco, LLC ("Remitco" and "Provider/Assignee") is currently Wells Fargo's subcontractor for processing Remittances for the City under the Lockbox Agreement, on each Business Day; and City of Miami Page 1 of 3 File ID: 6788 (Revision:) Printed On: 1/2/2020 File ID: 6788 Enactment Number: R-19-0491 WHEREAS, Wells Fargo and Remitco entered into an Asset Purchase Agreement, dated March 19, 2019 ("APA"), pursuant to which Wells Fargo as Assignor has agreed to assign its customer contracts, including the Lockbox Agreement with the City, to Remitco as Provider/Assignee for the provision of the continued Retail Image Lockbox Service ("Service(s)"); and WHEREAS Wells Fargo and Remitco have requested the City's consent to, and acceptance and approval of the assignment of the Lockbox Agreement from Wells Fargo to Remitco and the assumption of such obligations by Remitco to continue to provide the Service to the City; and WHEREAS, pursuant to Section 18-85 of the City Code, as authorized by City Commission Resolution No. R-07-0648, adopted November 9, 2007, for month -to -month Service on a per item schedule basis, by Remitco as Provider under the Lockbox Agreement for the continuation of Service(s) to the City; NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The recitals and findings contained in the Preamble to this Resolution are adopted by reference and incorporated as if fully set forth in this Section. Section 2. The City Commission hereby consents to, accepts, and approves the assignment by Wells Fargo as Assignor to its current subcontractor Remitco as Provider/Assignee for processing Remittances under the Lockbox Agreement between the City and Wells Fargo. Section 3. The City Manager is authorized' to negotiate and execute a consent to assignment and assumption of the Lockbox Agreement, in a form acceptable to the City Attorney, to incorporate Remitco as the new company to provide the continuing Service(s) to the City under the Lockbox Agreement pursuant to Section 18-85 of the City Code, as authorized by City Commission Resolution No. R-07-0648, adopted November 9, 2007, for month -to -month Service on a per item schedule basis. Section 4. The City Manager is further authorized to negotiate and execute all other documents, including any amendments, renewals, extensions, waivers of notice(s), and modifications to the Lockbox Agreement, subject to allocations, appropriations, and budgetary approval(s) having been previously made, and in compliance with applicable provisions of the City Code, including the City's Procurement Ordinance, Anti -Deficiency Act, and Financial Integrity Principles, all as set forth in Chapter 18 of the City Code, all in a form acceptable to the City Attorney, and in compliance with applicable regulations, as may be necessary for said purpose. Section 5. This Resolution shall become effective immediately upon its adoption and signature of the Mayor.2 1 The herein authorization is further subject to compliance with all requirements that may be imposed by the City Attorney, including but not limited to, those prescribed by applicable City Charter and City Code provisions. 2 If the Mayor does not sign this Resolution, it shall become effective at the end of ten (10) calendar days from the date it was passed and adopted. If the Mayor vetoes this Resolution, it shall become effective immediately upon override of the veto by the City Commission. City of Miami Page 2 of 3 File ID: 6788 (Revision:) Printed on: 1/2/2020 File ID: 6788 Enactment Number: R-19-0491 APPROVED AS TO FORM AND CORRECTNESS: ndez, City ttor 12/20/2019 City of Miami Page 3 of 3 File ID: 6788 (Revision:) Printed on: 1/2/2020 September 25,2019 Erica Paschal City of Miami d 14 SW 2nd Avenue 6th Floor Miami, FL 33130 Re: Consent to Assignment of Retail Image Lockbox Service Agreement between Wells Fargo Bank, N.A. ("Wells Fargo") and City of Miami ("Customer" or "you") Dear Erica: You and Wells Fargo are parties to an agreement (the "Lockbox Agreement") pursuant to which Wells Fargo provides its Retail Image Lockbox Service to you. Under,theLockbox Agreement, Wells Fargo processes checks and other instruments submitted in payment of obligations to you ("Remittances") received at a post office box maintained on your behalf (the "Lockbox"). REMITCO LLC ("REMITCO") is Wells Fargo's subcontractor for processing Remittances under the Agreement: Pursuant to the Lockbox Agreement, on each Business Day': • Wells Fargo or REMITCO picks up the,Remittances addressed to the Lockbox and transports them to a processing site or sites designated by Wells Fargo; • Wells Fargo or REMITCO opens the Remittances and processes them in accordance with the lockbox processing procedures set forth in the Lockbox;Agreement; • Wells Fargo makes deposits of the acceptable checks and/or cash received in the Lockbox by crediting the amount of such checks and cash`to the account that Customer maintains with Wells Fargo and that is `:designated for deposit of Remittances received through the Lockbox (the "Account"); • Wells Fargo or REMITCO electronically images checks, remittance stubs and correspondence received in: the Lockbox; • REMITCO electronically transmits information from processed Remittances to Wells Fargo for retrieval by Customer;'and •` Archival images of the' processed Remittances are accessible to Customer via the Wells Fargo Commercial Electronic Office® ("CEO®") portal. Wells Fargo and REMITCO entered into an Asset Purchase Agreement, dated March 19, 2019 (the "APA"), pursuant to which Wells ,Fargo has agreed to assign its customer contracts for the provision of the Retail Image Lockbox Service to REMITCO. The transactions contemplated by the APA are expected to close on May 1, 2019 (the "Closing''Date"). Wells Fargo will assign your Lockbox Agreement to REMITCO on the Closing Date, and REMITCO will be responsible for providing the Retail Image Lockbox Service to you under the Lockbox Agreement from and after the Closing Date. Pursuant to the provisions of the Lockbox Agreement, Wells Fargo and REMITCO hereby request your consent to the assignment of the Lockbar Agreement from Wells Fargo to REMITCO. Below is a brief explanation of the documentation that will and will not be assigned by Wells Fargo to REMITCO in order to effectuate the assignment of your Lockbox Agreement. ' Capitalized terms not defined in this letter are defined in the Wells Fargo Retail Image Lockbox Service Descrption. 1IPaee Confidential 731866672 Documents that will be assigned to REMITCO: • The Acceptance of Services or Treasury Management Product Enrollment (February 6, 2019), solely with respect to the Retail Image Lockbox Service; • The Wells Fargo Retail Image Lockbox Service Description; • The terms of the Wells Fargo Master Agreement for Treasury Management Services (the "Master Agreement"), solely with respect to the provision of the Retail Image Lockbox Service to you under the Lockbox Agreement (with all references to "Wells Fargo Bank, N.A." or "the Bank" (other than with respectto CEO® portal) being deemed, following assignment, to be references to "REMITCO"). Terms of the Master Agreement applicable to services other than the Retail Image Lockox Service and to deposit accounts you maintain with Wells Fargo (including terms permitting Wells Fargo to debit the accounts for fees) are not assigned to REMITCO; and • Each of the (i) Amendment No. 1 Professional Services Agreement Between the City of Miami and Wachovia Bank, N.A. (February 26, 2008) and (ii) Professional Services Contract (November 30, 2001) (the "Custom Agreements"), solely with respectto Wells Fargo's provision to you of the Retail Image Lockbox Service (the "Lockbox Portion"). :For the avoidance of 'doubt, Wells Fargo's provision of any services to you other than the Retail Image Lockbox Service '(the "Non-Lockbox Portion") will not be assigned to REMITCO. Following the assignment of your Lockbox Agreement to REMITCO, general provisions in the Custom Agreements that apply to both the Lockbox Portion and the Non-Lockbox Portion will apply to REMITCO with respect to the Lockbok Portion and to Wells Fargo with respect to the Non-Lockbox Portion of the Custom Agreements. Documents that will not be assigned to REMITCO: • The deposit account agreement governing the Account that you maintain with Wells Fargo ("Account Agreement"). The Account will continue to be subject to the.terms of the Account Agreement. Your Account will remain ,at Wells Fargo and not be assigned to REMITCO; however, following the Closing Date, REMITCO will continue to credit Remittances directly to Customer's Account at Wells Fargo unless Customer directs REMITCO to do otherwise. • The terms of=the:Acceptance.of Services, Treasury Management Product Enrollment Form and Master Agreement with respect to services Wells Fargo provides to you other than the Retail Image Lockbox Service. Each of the Acceptance of Services, Treasury Management Product Enrollment Form and Master Agreement will remain in full force and effect between you and Wells Fargo to the extent that it governs or is incorporated into any agreement between you and Wells Fargo other than the Lockbox Agreement. Any licenses, Wells Fargo user guides (including terms of use), or other terms governing your use of or access to Wells Fargo's_ CEO® portal or the website hosted by Wells Fargo for the purpose of allowing 'you to access archival images of Remittances (the "Archival Images Website"), or related to services other than the Retail Image Lockbox Service. • The Non-Lockbox Portion of the Custom Agreements. If you utilize Wells Fargo's SmartDecision® Service or another method of accounts receivable conversion offered by Wells Fargo, then, based on your preference, Issuer Preference, or Bank Preference, Wells Fargo will continue after the assignment of your Lockbox Agreement to REMITCO to (a) convert each eligible Electronic Image and Remittance to an ACH debit entry on the deposit account on which is was drawn, in which case the conversion and processing of such ACH debit entry will be governed by and subject to Wells Fargo's separate ACH Orgination Service Description; (b) process remaining Electronic Images in accordance with Wells Fargo's separate Service Documentation, as selected by you for non -eligible Electronic Images and Items; or (c) process remaining Items in Accordance with the Account Agreement. 2IPaee 731866672 Confiders t ial Wells Fargo has agreed to provide transitional billing agent services to REMITCO for a period of time after the Closing Date with respect to the assigned Retailed Image Lockbox Service contracts. After the Closing Date, once your Lockbox Agreement is assigned to REMITCO, Wells Fargo will continue to bill you on behalf of REMITCO for Retail Image Lockbox Service performed by REMITCO. For a period of time following the assignment of your Lockbox Agreement to REMITCO, Wells Fargo will continue to allow you to access the Archival Images Website through Wells Fargo's CEO® portaL Remittances received after the Closing Date will be viewable through the CEO® portal. Eventually, however, you will be required to log on to a different website hosted by REMITCO in order to view your archival images of Remittances. Prior to the transition, REMITCO will provide a notice with the new URL and login information allowing you to access the archival images of Remittances on REMITCO's website. REMITCO will communicate with you directly concerning the Lockbox Agreement, including any modifications to the terms and conditions of the Lockbox Agreement that REMITCO intends to make after its assignment to REMITCO. Such modifications will only be effective following the assignment of your Lockbox Agreement to REMITCO. Until the assignment to REMITCO occurs, the .terms of your Lockbox Agreement will continue to govern your use of the Retail Tmage Lockbox Service unless modified by Wells Fargo. By executing this letter, you (i) acknowledge and agree that this letter is timely and sufficient for all purposes under the Lockbox Agreement, (ii) acknowledge your consent to, and grant your waiver with respect to, the assignment of the Lockbox Agreement to REMITCO as a result of the transactions contemplated by the APA, (iii) acknowledge and agree that the Lockbox Agreement will remain in full force and effect in accordance with its terms prior to the date of the assignment to REMITCO, unless modified by Wells Fargo and (iv) acknowledge and agree that the Lockbox Agreement will remain in full force and effect in accordance with its terms following the assignment to REMITCO, except to the extent modified by REMITCO (as referenced above). On behalf of Wells Fargo. and REMITCO, please accept our sincere appreciation for your partnership and cooperation during this -transition. [Signature page follows] .- 731866672 Con fidenti"a("" Sincerely, Wells Fargo Bank, N.A. By: Name: Title: REMITCO LLC By: Name: Title: Acknowledged and Agreed: City of Miami By: Name: Title: eliP a g.e 731866672 Co nfident ial