executing an offsetting transaction on new terms at the updated exchange rate that is unlikely to match the original rate. Should a Transaction be successfully canceled or amended, Customer also agrees to reimburse Bank for any breakage costs and other expenses incurred by Bank to cancel or amend the Trade, including any fees imposed for this extraordinary service.
4. Funds Transfers. Customer authorizes Bank to execute and charge the designated Customer account(s) for wire transfer payment orders delivered to Bank via any EFX service. Customer agrees that all such wire transfer payment orders will be governed by the relevant Sections of this Agreement.
5. Representations and Warranties. Customer represents and warrants to Bank as of the date of this Agreement and as of the date of each Transaction that: (i) Customer is authorized to enter into this Agreement and any Transaction, (ii) the persons entering into the Agreement (and each Transaction) on Customer’s behalf have been duly authorized to do so, (iii) the Agreement (and each Transaction) is binding and enforceable against Customer in accordance with its terms, and (iv) unless otherwise expressly agreed, Customer is acting as principal with respect to each Transaction.
B. FOREIGN CURRENCY ACCOUNTS
1. Introduction. If requested by Customer and agreed to by Bank, Customer may open a Foreign Currency Account (“FCA”) at U.S. Bank National Association (“Standard FCA”).
2. Permitted Deposits. Bank may accept the following for deposit into FCA: a. Proceeds of matured foreign exchange purchase contracts; b. Proceeds of foreign currency denominated letters of credit or documentary collection; c. Incoming international funds transfers; d. Proceeds of loan disbursements; or e. Foreign checks and other items subject to collection, which may not be available until funds are received by Bank.
Bank will not accept currency or coin for deposit into FCA. Deposits not specifically enumerated above may be allowed if agreed to by Bank in writing. Only collected and verified funds can be deposited into FCA, whereupon funds will be immediately available for withdrawal or transfer by Customer.
3. Withdrawals. Customer can make withdrawals out of FCA in the following ways: a. Settlement of a foreign exchange transaction; b. Negotiation of foreign currency denominated letters of credit or documentary collection; c. Outgoing international funds transfers by wires initiated in accordance with Bank procedures; or
d. Payment of a foreign currency loan.
Each of these methods of making a withdrawal will result in an immediate debit to the FCA for the entire amount Customer has elected to withdraw from such FCA.
4. Interest. Interest rates offered on FCAs are determined in Bank’s discretion based on the applicable currency. Such interest rates may be set at zero or a negative interest rate. Interest is calculated based on the average daily balance method. The average daily balance method is an annualized rate that reflects the relationship between the amount of interest each fiscal month and the average daily balance in the account for such fiscal month. Negative interest may be assessed as a fee based on the interest rate set by the applicable monetary authority plus the incremental cost of funding to U.S. Bank. Interest rates and fees related to negative interest rates may be changed at Bank’s discretion without notice to Customer.
5. Denomination. Customer will elect the denomination of each FCA on a separate account opening document. Transfers of funds into and out of FCA in the currency in which that particular FCA is denominated will be made without regard to the equivalent value of that sum of foreign currency in U.S. dollars or other foreign currencies. Transfers of funds into and out of FCA in a currency other than the currency in which that particular FCA is denominated may be accommodated by the Bank in its discretion. Such transfers will be made at an exchange rate determined by Bank.
6. Non-Business Days. In addition to non-Business Days specified in the Agreement, there will occasionally be other days on which Bank cannot process or complete a transaction due to holidays in foreign countries.
7. Other Terms. Bank may refuse a deposit, limit the amount which Customer may deposit, return all or any part of a deposit or require that Customer close FCA at any time. Bank may also close FCA without prior notice and remit to Customer any balance remaining after taking into account all pending debits and charges against such FCA.
8. Foreign Currency Account Risks. Investing in any currency other than the base currency of the Customer carries risk. The value of the balances in such accounts may be significantly affected by changes in currency exchange rates. Some other risks of maintaining foreign currency balances include but are not limited to: the effects of a different economic system in a foreign country, future political and economic developments,
possible imposition of exchange controls or other government restrictions, and with respect to certain countries, the possibility of expropriation or confiscatory taxation, political or social instability, or diplomatic developments which could adversely affect the value of the currency.
Should Bank’s balances in a foreign country become blocked or withdrawals by Bank become otherwise restricted, Customer’s funds in the FCA will likewise be blocked or otherwise restricted.
WHILE DEPOSITS IN FCAS MAY BE INSURED BY THE FEDERAL
DEPOSIT INSURANCE CORPORATION (“FDIC”) UP TO A MAXIMUM
AMOUNT ALLOWED BY LAW, CUSTOMER IS NOT PROTECTED BY
BANK AGAINST FOREIGN CURRENCY EXCHANGE RATE
FLUCTUATIONS OR FROM INABILITY TO ACCESS FUNDS FROM
FOREIGN REGULATIONS BY THE FDIC INSURANCE, OR ANY
OTHER INSURANCE OR GUARANTY PROGRAM.
9. Limitations on Liability. In addition to other limitations on liability set forth in this Agreement, Customer expressly releases and holds harmless Bank, and its affiliates, agents, and employees, from any liability, loss, damage or claim related to currency exchange rates or fluctuations in value of the currency in which the applicable FCA is denominated with respect to the U.S. dollar and other currencies. Customer hereby assumes all risks related to currency exchange rates and fluctuations in currency values, including that the foreign currency in FCA might be worth less, in U.S. dollars or other foreign currencies, than the U.S. dollar or other foreign currency equivalent of such funds at the time deposited into the FCA. Bank makes no warranty and no representation about the value of any FCA balance at any time.
V. TERMS APPLICABLE TO SPECIFIC MONEY CENTER AND
SAFEKEEPING SERVICES
The following are additional terms and conditions applicable to specific Money Center and Safekeeping Services offered by Bank. In the event of a conflict between this Section V and any other provision of this Agreement, Section V shall govern. Bank may change the number or type of Services offered at any time. Customer shall not be bound by the terms and conditions for the specific Services described in this Section V to the extent Customer is not using such Service(s).
Municipal Advisor Rule Disclosure. This disclosure applies to Customer if Customer is classified as a municipality or an "obligated person" under the Municipal Advisor Rule. For purposes of Section 15B of the Securities Exchange Act of 1934 (the "Act") (SEC Rule 15Ba1-1 et seq.) (the "Rule"), Bank: (1) is not recommending and will not recommend an action to Customer; (2) is not providing and will not provide "advice" to Customer as defined in the Rule, and any information or communication from Bank in respect of Customer's accounts with the Money Center or the Safekeeping Departments of Bank or in respect of any securities transaction or potential securities transaction to be executed via such account(s) is not intended to be and should not be construed as "advice" as defined in the Rule; and (3) is not acting as an advisor to Customer and does not owe Customer any fiduciary duty pursuant to Section 15B of the Act or otherwise with respect to any such account(s), information, communication, transaction or potential transaction. Customer should discuss any information or material provided to Customer by Bank in connection with trading, investing or other activity in such account(s) with any and all of Customer's internal or external advisors and experts that Customer deems appropriate before acting on any such information or material.
A. INVESTMENT, DEPOSITORY AND SAFEKEEPING SERVICES
From time to time, Customer may effect securities transactions or establish deposits with Bank's Money Center Department and/or request safekeeping services from Bank's Safekeeping Department. All such transactions shall be subject to the terms and conditions of this Agreement.
1. Definitions. a. “Confirmation” means the confirmation statement from Bank as described in this Agreement.
b. A “Money Center deposit” means an interest-bearing demand deposit account, a money market deposit account (“MMDA”), a time deposit, or other deposit liability of Bank to Customer established under this Agreement and maintained in Customer's Money Center investment account. c. "Safekept Securities" means securities that Bank has agreed to accept and hold for the account of Customer under the terms of this Agreement. d. The term "securities" means all securities (as Defined in the Securities Exchange Act of 1934) and all investment securities or products from time to time offered by Bank to Customer, other than certificates of deposit issued by Bank and deposits made with Bank. e. “Settlement Account” means any settlement account(s) designated by Customer or any replacement account identified by Customer in a written notice delivered to Bank.
2. Securities Transactions: Compensation and Capacity of Bank. a. In General. In any securities transaction governed by this Section V.A, Bank may be acting as principal, riskless principal, or agent. Bank’s capacity in any securities transaction will be indicated on the Confirmation. (i) As Principal. When acting as a principal in securities transactions, Bank will either buy securities for its own account or sell for its own account securities owned by Bank, whether such securities are bought before or after receiving Customer’s order. Bank’s compensation is reflected in the price at which Bank buys or sells the securities.
(ii) As Riskless Principal. When acting as a riskless principal in securities transactions, after receiving from Customer an order to buy or sell
securities, Bank will buy or sell securities for its own account to offset the sale to or purchase from Customer. Bank’s compensation is reflected in the price at which Bank buys and sells the securities. (iii) As Agent. When acting as Customer’s agent in securities transactions, Bank will buy or sell securities solely for Customer’s account. Bank’s compensation due from Customer is the amount of any agency service charge indicated on the Confirmation. b. Service Fees. In addition to compensation received as a principal, riskless principal or agent, Bank may charge Customer service fees in relation to securities transaction as specified in the current fee schedule as provided to Customer, which may be amended from time to time upon notice to Customer. c. Other Compensation; Bank Securities. Bank may be paid a fee or other compensation by any other party in connection with any securities transaction, and any such fee or compensation will be in addition to fees payable by Customer to Bank under this Agreement. Such additional compensation may include, without limitation, advisory, custodial, distribution and/or shareholder service fees (which may be paid as service fees pursuant to Rule 12b-1 under the Investment Company Act of 1940) that Bank or its affiliates may receive from various mutual funds and/or mutual fund service providers, based upon moneys invested in those mutual funds. Customer acknowledges that those fees or other compensation may be paid to Bank for such services, and that such payments will not reduce or offset any fee or compensation due from Customer to Bank under this Agreement. Further, Customer acknowledges that securities Customer acquires through Bank may directly or indirectly (including through mutual funds) represent an ownership interest in securities issued by Bank or its affiliates or by mutual funds sponsored by Bank or its affiliates.
3. Money Center Deposits. a. In General. If Customer elects to deposit funds through the Bank’s Money Center Department, that Money Center deposit shall be maintained within Customer’s Money Center investment account. Bank will provide Customer with a Confirmation upon Customer’s placement of funds, and the deposit transaction will be reflected on Customer’s Money Center account statement. With the exception of Eurodollar deposits (which are not deemed deposits under rules promulgated by the FDIC and therefore are not insured by the FDIC), Money Center deposits are FDIC insured per depositor, up to applicable FDIC limits. By opening and maintaining a Money Center deposit, Customer agrees to be bound by this Agreement. b. Access to Funds. In addition to any other restrictions specified elsewhere in this Agreement, Customer shall not be allowed to make withdrawals or transfers from a Money Center deposit at a U.S. Bank branch or ATM or via check. No debit or ATM cards will be issued on a Money Center deposit. Customer shall be permitted to make withdrawals or transfers from a Money Center deposit only by contacting the Money Center Department in the following manner: telephone, facsimile, email, or via an online system provided or approved by Bank. c. Notice of Withdrawal. Bank reserves the right to require at least seven (7) days written notice prior to withdrawal or transfer of funds from an MMDA, unless otherwise specified on the Confirmation for the Customer's placement of funds. Customer must provide such notice to Bank's Money Center Department by 3:00 PM Central Time via telephone, email, or fax.
4. Pledges; Segregation. a. Pledges. Upon request of Customer, Bank can provide a form of control agreement suitable for transactions where Customer wishes to grant to third parties a lien, pledge or other rights over its property held by or at the Money Center or Safekeeping Departments at Bank. Customer agrees that all costs of Bank, including reasonable fees and expenses of outside counsel if deemed necessary by Bank, will be at Customer's expense if such a control agreement is requested, whether or not a final agreement is entered into.
b. Segregated Assets. Where Customer wishes to effect transactions hereunder on behalf of its customers using the property of such customers, Customer will first notify Bank in writing of its intention to do so before effecting any such transactions. Customer acknowledges that Bank may require one or more additional agreements in order to accept such transactions. Once acceptance of such transactions has been approved by Bank, Customer agrees to include in its instructions to Bank an agreed identifier or designation as to the applicable securities, deposits, and transactions.
5. Securities Transaction Requests. a. Effecting Transactions. Each securities transaction will be effected pursuant to Customer's instructions made verbally, by fax or sent electronically via email or a trading system provided or approved by Bank.
Emailed instructions must be directed to Bank’s email address as designated from time to time by Bank, and fax instructions must be directed to Bank’s fax number as designated from time to time by Bank.
Securities transaction requests may be acted upon by Bank without acknowledgment by Bank that it has received such request. b. Cut-Off Times. Bank establishes cut-off times for receipt of securities transaction requests depending on the type of security and the market in which it is traded. In addition, market holidays, procedural or operational matters, and actions taken by market operators may affect Bank’s ability to process securities transaction requests. Customer instructions for same day settlement received before the applicable cut-off time will be submitted for processing that Business Day. Customer instructions for same day settlement received after the applicable cut-off time may be processed by Bank on a ‘best efforts’ basis that Business Day and otherwise will be submitted for processing the next Business Day. c. Bank's Rights. Bank may reject, refuse to honor, or reverse all or any portion of any transaction request, with or without prior notice to Customer.
If Customer fails to pay in full for any security purchased or fails to deliver security sold, in each case on or before the related settlement date, Bank is authorized in its discretion and without notice or demand to take any one or more of the following actions: cancel the transaction; sell the securities covered thereby; buy-in cover securities or other property required to make delivery; charge the Settlement Account for amounts due; hold Customer liable for any loss, cost or expense including but not limited to, breakage or pair-off fees and the capital charge and interest cost to carry any securities purchased; and/or impose fees.
6. Safekept Securities. Bank, acting through its Safekeeping Department, agrees to hold and keep as custodian hereunder all Safekept Securities, and to deliver such Safekept Securities in accordance with the instructions of Customer, all subject to the terms and conditions of this Agreement. a. Acceptance and Withdrawal. Securities eligible to be Safekept Securities may be delivered to Bank, and any Safekept Securities may be withdrawn from Bank, in each case upon an instruction of Customer delivered in accordance with this Agreement. Withdrawal or delivery of Safekept Securities is subject to availability (e.g., among other reasons, securities involved in a corporate action or in frozen status, restricted securities or pledged securities may not be available for withdrawal or delivery). Bank shall not be liable or responsible for or on account of any act or omission of any broker or other agent designated by Customer or, in the absence of such designation, selected by Bank to receive or deliver securities for the account of Customer.
b. Registration; Depositories. Bank shall register Safekept Securities in nominee name and may from time to time change the registration of Safekept Securities from nominee name to Customer’s name, or vice versa. Customer agrees that it will timely complete any necessary documentation provided by Bank to change the registration of Safekept Securities. Safekept Securities held in nominee name may be deposited with The Depository Trust Company or other third-party depository acceptable to Bank. Securities that are depository eligible will be held at the depository in the depository’s nominee name. c. Securityholder Information. Unless otherwise required by law or pursuant to instructions from Customer, in no event shall Bank be responsible to take any action concerning any puts, calls, conversions, exchanges, reorganizations, offers, tenders or other corporate actions or similar matters relating to Safekept Securities, other than (i) to forward to Customer in accordance with this Agreement the written information received by Bank relating to any such transaction, and (ii) follow
Customer’s lawful instructions with respect to such actions. Customer may directly vote any proxy or other corporate action, or if it instructs Bank to vote on its behalf, agrees that any instructions to Bank with respect to any such actions shall be delivered to Bank within sufficient time for Bank to act thereon if any action is required. Safekept Securities called for redemption prior to maturity will be presented by Bank for payment provided the trustee or other appropriate entity gives Bank adequate notice of redemption. Should any Safekept Security be called for partial redemption by the issuer of such security, Bank is authorized to accept the allocation applied by any central depository. In the event Bank has to allocate any redemption among its accounts, Bank shall allot the redemption proceeds in accordance with its standard procedures therefor, effected in such manner as it deems appropriate in its sole discretion. d. Collection of Income and Principal. Bank shall collect and receive the interest, principal, and other income payable in connection with the Safekept Securities and shall pay to Customer or credit to the Settlement Account all such amounts. Bank shall not be obligated (i) to pay to Customer or credit to the Settlement Account any payment of interest, principal or other income until Bank receives such payment in immediately available funds or (ii) to institute or participate in any collection proceedings or other proceedings to enforce Customer’s rights relative to any Safekept Securities or to pursue any remedies on behalf of Customer.
Bank is hereby authorized to sign on behalf of Customer any declarations, affidavits, certificates of ownership or other documents relating to securities held by Bank in nominee name that may at any time be required with respect to all coupons, registered interest, dividends, or other income.
If any of Customer’s deposits or securities the subject of this Agreement, including Safekept Securities, are subject to a variable or fixed rate of interest and such deposits or securities bear an interest rate less than zero, Customer agrees to pay Bank all amounts of the negative interest or fees that Bank imposes as compensation for the less-than-zero interest rate (which may also be debited from the Settlement Account by Bank), and Customer agrees that the principal amount of such Safekept Securities may be reduced to the extent necessary to cover the amount of the negative interest or fees if available funds are not otherwise provided by Customer. e. Return of Payments. Customer will repay Bank, or Bank may charge the Settlement Account, in the event that for any reason (i) Bank is required to return to the issuer or to a third party any payments in respect of Safekept Securities, (ii) Bank fails to receive from the issuer or appropriate other party a payment Bank paid to Customer in respect of Safekept Securities, or (iii) Bank must return to the issuer or appropriate other party a payment Bank paid to Customer in respect of Safekept Securities. Customer further agrees that the principal amount of any Safekept Securities may be reduced, and any remittances due from Bank to Customer (whether or not under this Agreement), and any other accounts of Customer with Bank, may be offset to the extent necessary to cover the amount of such returned payments to the extent that immediately available funds are not otherwise provided by Customer to Bank.
7. Confirmation Statements. Promptly after effecting any transaction pursuant to this Section V.A, Bank will deliver to Customer a Confirmation which shall identify at least (i) Bank and Customer, (ii) the trade and settlement dates of the transaction, (iii) the issuer and par amount of the related securities (for securities transactions) and the principal amount of any deposit (for deposit transactions), (iv) the interest rate if applicable and/or any discount rate applicable to any securities transactions or deposit transactions, (v) the maturity date of the transaction, if applicable, (vi) the capacity of Bank as principal, riskless principal or agent (if the transaction is a securities transaction) and, if applicable, whether the securities will be Safekept Securities, (vii) any terms and information required by applicable law, and (viii) any other terms and information which Bank may include at its discretion. The information contained on the Confirmation shall be considered true and correct and conclusively binding upon Customer unless Customer notifies Bank of any error therein within three (3) business days after the date the Confirmation is deemed delivered to Customer in accordance with this Agreement. Customer may, by notice from an Authorized User in accordance with this Agreement, elect to receive Confirmations by mail, fax, email, or other electronic means including posting to a password-protected website), subject to the terms of this Agreement.
8. Settlement Account. Unless Bank is otherwise instructed in writing, Customer unconditionally authorizes, empowers, and directs Bank (and authorizes and directs Bank to communicate with any financial institution maintaining the Settlement Account as necessary) to: (i) debit the Settlement Account on the settlement date indicated on the Confirmation for the full amount of each transaction effected under this Section V.A (including all fees and charges payable hereunder), notwithstanding that such debit may cause the Settlement Account to be overdrawn; and (ii) credit the Settlement Account with interest payments, principal payments, maturity payments or other payments received in respect of transactions effected under this Agreement. Customer hereby represents and warrants that instruction from any Authorized User is sufficient to authorize Bank to debit or credit the Settlement Account. If the Settlement Account is not held by Bank, Customer confirms to Bank that it has authorized the financial institution maintaining the Settlement Account to accept debit and credit entries to the Settlement Account and that no such authorization will be cancelled except with prior notice to Bank and in sufficient time and in such manner as to allow the financial institution maintaining the Settlement Account and Bank a reasonable opportunity to act on such termination without disruption of any transactions or services under this Agreement.
Customer acknowledges that ACH payments to a Settlement Account not held by Bank are subject to ACH processing timelines, which may involve a delay in available funds.
9. Delivery. Through the instructions of an Authorized User, Customer shall specify the account to which any securities purchased hereunder are to be delivered. If such account is maintained by the Safekeeping Department of Bank, the securities will be held in accordance with this Agreement. If such account is maintained by an institution other than Bank, Bank’s responsibility for ensuring delivery shall be limited to accurately conveying the instructions for the appropriate delivery account to the depository, agent, or issuer of the securities, as applicable for the particular type of securities. Bank will issue no certificate, passbook, or any other evidence of any deposit except for the Confirmation.
10. Interest. All securities, Money Center deposits, and certificates of deposit purchased by Customer or held by Customer under this Agreement shall earn interest on the principal balance from the date of deposit or settlement date, as applicable, computed at the rate and in the manner established by Bank from time to time for the given product. Any interest due will be credited monthly unless otherwise agreed to by Customer and Bank. No interest shall accrue on the date of withdrawal.
Bank reserves the right to change the applicable interest rate on variable rate products (including those products whose underlying interest rate is not managed by Bank) at any time. Such interest rate may be set at zero or an interest rate less than zero. If the interest rate, or the index or other referenced rate upon which the interest rate is based, is at any time less than zero percent, Customer agrees to pay Bank all amounts of the negative interest or fees that Bank imposes as compensation for the lessthan-zero interest rate. Bank will not provide notice of rate changes, but Customer may call the Money Center Department to obtain current rate information. Bank shall notify Customer of the applicable interest rate and maturity term for the product opened under this Agreement at the time that the request for such product is made.
11. Fixed Investment Periods. Customer acknowledges that certain products held by Bank under this Agreement have fixed investment periods and agrees that such products will be held by Customer until their maturity dates or through their commitment dates. Customer agrees that if it withdraws part or all of such product before such date, Bank shall be entitled to impose a penalty (including by debiting the Settlement Account for such amounts) in accordance with the terms of such product or the fee schedule provided to Customer, as applicable, and that the principal amount of such product may be reduced to the extent necessary to cover such penalty if available funds are not otherwise provided by Customer.
12. Repurchase Transactions. Customer shall not effect any securities transactions under this Agreement in the expectation of entering into a repurchase transaction with Bank as counterparty unless Customer shall first have executed and delivered to Bank a written master repurchase agreement, in form and substance satisfactory to Bank, governing such transactions. In any such transaction, where Bank is to hold securities as collateral or as the subject of a transaction, such securities will be held by the Safekeeping Department of Bank subject to the terms of this
Agreement, unless Customer is otherwise notified. To the extent of any inconsistency between the terms of any such agreement and the terms of this Agreement, the terms of such other agreement shall control.
13. Fees and Expenses. Customer shall pay to Bank such fees in respect of the services provided under this Agreement, as disclosed to Customer on the current fee schedule (which fee schedule may be amended from time to time by Bank). If the fee schedule is amended, the amended fees will apply to any Safekept Securities being held at that time, and to any securities transactions effected on the day such amendment becomes effective. Customer agrees and acknowledges that Bank may debit the Settlement Account for any fees and other amounts owing by Customer to Bank under this Agreement, or exercise an offset for such amounts against any funds of Customer on deposit with Bank, or against any interest, principal or other income received or to be received by Bank on behalf of Customer, whether or not in respect of Safekept Securities. In addition, Customer agrees to reimburse Bank for its commercially reasonable out- of-pocket expenses for providing the services hereunder, including, but not limited to the reasonable fees and expenses of outside counsel if retained by Bank in its discretion in connection with this Section V. If Customer fails to pay Bank any sums due under this Section V within thirty (30) days after the same are due (whether or not a late notice is sent to Customer by Bank), Bank may terminate this Agreement and return any Safekept Securities to Customer at Customer’s expense, and to avail itself of any other remedy it may have in law or in equity.
14. Service Termination; Account Closure. Subject to Section V.A.11 ("Fixed Investment Periods"), Customer may terminate the Service(s) described in this Section V or close its Money Center investment account at any time upon prior notice to Bank. Bank may terminate the Service(s) described in this Section V or close Customer's Money Center investment account at any time without prior notice to Customer. If any Service described in this Section V is terminated or Customer's Money Center investment account is closed for any reason, Customer will continue to be responsible for any obligation incurred by Customer prior to termination or closure and for the fees and costs, if any, payable under this Agreement with respect to delivery of Customer's securities (including Safekept Securities) or funds held by Bank to Customer or to another financial institution.
15. Notices. Except for oral instructions to Bank from Authorized Users or from Bank to Authorized Users, all notices, disclosures, and communications (including Confirmations) under this Section V shall be in writing and delivered by mail, fax, email, or other electronic means as provided for in this Agreement. Notices, disclosures and communications (including Confirmations) shall be deemed delivered upon transmission of the same by mail, fax, email or other electronic means as provided for in this Agreement, or on the third (3rd) Business Day after deposit of the same in the United States mail, postage prepaid, and addressed to the mailing address provided by Customer. All written confirmations, notices, instructions, or other communications from Customer to Bank shall be sent to following address (which may be amended from time to time by Bank upon notice to Customer):
For securities transactions:
U.S. Bank National Association
Money Center Department
800 Nicollet Mall, BC-MN-H18T
Minneapolis, MN 55402
Fax: (866) 904-7067
Email: [email protected]
For safekeeping services:
U.S. Bank National Association
Safekeeping Department
800 Nicollet Mall, BC-MN-H18R
Minneapolis, MN 55402
Fax: (612) 303-0202
Email: [email protected]
16. Terms and Conditions of Electronic Delivery. All notices, disclosures and communications (including Confirmations and other account information) from Bank may be delivered to Customer by electronic means (including, without limitation posting to a passwordprotected website) to the extent Customer elects to receive such information through electronic means, subject to the Terms and Conditions of Electronic Delivery set forth in Section V.B below. Customer agrees that sending information in this manner will constitute good and effective delivery of the information to Customer, regardless of whether Customer actually accesses the website or other electronic medium containing the information.
17. No Investment or Tax Advice. Customer acknowledges that Bank’s role is ministerial in nature and that Bank will not provide supervision, recommendations, or advice to Customer in connection with the investment, purchase, sale, retention, or other disposition of any securities or Money Center deposits, or the advisability or suitability of any product or transaction. Customer is responsible for evaluating the risks associated with such decisions. Customer acknowledges Bank is not an investment adviser, has no investment discretion, and will merely carry out instructions as directed by Customer. Bank’s ability to determine interest rates on securities or Money Center deposits shall not be deemed to be discretion or advice. Customer further acknowledges that Bank will not provide advice to Customer regarding the tax implications associated with the investment, purchase, sale, retention, or other disposition of any securities or Money Center deposits.
18. ERISA. If assets of an employee benefit plan subject to the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), are intended to be deposited, invested or used by Customer in a transaction under this Section V.A, Customer shall notify Bank prior to effecting such deposit, investment or transaction and will provide Bank with such additional information as Bank may reasonably request. Customer represents and warrants to Bank that any deposit, investment, or transaction pursuant to this Section V.A shall not result in a "prohibited transaction" under ERISA or shall otherwise be exempt under ERISA, and Customer further agrees to indemnify and hold Bank harmless from any loss or claim arising therefrom.
19. No Representation or Warranty. Customer acknowledges and agrees that Bank makes no representation or warranty, express or implied, with respect to the validity, enforceability, collectability, or investment quality of any securities bought or sold hereunder, or any deposits made or terminated hereunder.
20. Records; Account Statements; Taxes. Bank will maintain records of Customer's account and provide customer with a Confirmation for transactions in accordance with this Section V.A and periodic account statements. Bank will also send to Customer such notices and reports as are required by law. Customer acknowledges and agrees that it is Customer's obligation to prepare and file all required tax returns and to pay all taxes due on any income that Bank collects for Customer.
21. Set Off. Bank has the right to apply funds in Customer's Money Center investment account or Settlement Account to any debt Customer owes Bank. A debt includes any fees, overdrafts, debts that now exist and debts that Customer may incur in the future, or Customer's obligations under a guaranty. When Bank sets off a debt Customer owes Bank, Bank reduces the funds in the Money Center investment account or Settlement Account by the amount of the debt. If there are not sufficient funds in Customer’s Money Center account or Settlement Account to satisfy any obligations of Customer to Bank, Bank has right to sell any or all securities in those accounts to satisfy such obligations. Bank is not required to give Customer any notice before selling Customer’s securities or otherwise exercising its right of setoff. Customer agrees to hold Bank harmless from any claim arising as the result of Bank's enforcement of its right of setoff against Customer's Money Center investment account or Settlement Account.
This right of setoff is in addition to any security interest that Bank might have in Customer's Money Center investment account or Settlement Account.
22. Legal Process. Legal process includes any levy, garnishment or attachment, tax levy or withholding order, injunction, restraining order, subpoena, search warrant, government agency request for information, forfeiture or seizure, or any other legal process relating to Customer's Money Center investment account or Settlement Account. Bank may accept and act on any legal process Bank believes to be valid, whether
the process is served in person, by mail, by electronic notification, or at a banking location. If Bank incurs any fees or expenses (including attorneys' fees and expenses) due to responding to legal process related to Customer's Money Center investment account or Settlement Account, Bank may, in its sole discretion, charge these costs to any other deposit account Customer maintains with Bank. All legal process is subject to Bank's rights of setoff and security interest in Customer's Money Center investment account and/or Settlement Account.
B. TERMS AND CONDITIONS OF ELECTRONIC DELIVERY
The following sets forth the terms and conditions of use of Bank’s electronic delivery and notification service (the “Electronic Delivery Service”) in connection with account(s) with Bank's Money Center Department or Safekeeping Department.
The Electronic Delivery Service described in this Section V.B shall constitute an Internet Service as defined in Section I of this Agreement and shall be subject to the terms set forth therein, as well as any other agreements between Customer and Bank and any applicable laws or regulations. If there is a conflict between the terms and conditions set forth in this Section V.B and the terms and conditions of any other section of this Agreement or any other agreement between Customer and Bank as they relate to the Electronic Delivery Service, the terms and conditions set forth herein will control.
1. Electronic Delivery of Account Communications. Customer may elect to receive Account Communications (defined below) related to Customer's account(s) electronically. All Account Communications will be delivered electronically by posting to Bank’s password-protected website designated for Customer’s account(s) or, at Bank’s election, delivered via electronic mail to the email address provided by Customer to Bank. “Account Communications” include, without limitation, all current and future account statements, Confirmations, security notices, maturity notices, prospectuses, offering and disclosure documents, shareholder communications (such as quarterly, semi-annual, and annual reports, proxy statements, etc.), regulatory communications and other information, documents, data, notices and records regarding Customer’s account(s) with Bank. Bank may, from time to time, designate additional Account Communications that are then eligible for electronic delivery through the Electronic Delivery Service, the delivery of which will then be subject to these terms and conditions. From time to time, Bank may add to, modify, or delete any feature of the Electronic Delivery Service or Account Communications eligible for delivery through the Electronic Delivery Service at its sole discretion. Customer acknowledges and agrees that by being enrolled in the Electronic Delivery Service, Customer will no longer receive Account Communications by mail that is otherwise available for delivery as part of the Electronic Delivery Service.
2. Accessing Account Communications. Bank will notify Customer via email when Account Communications are posted. Bank may also provide, in its sole and absolute discretion, Account Communications directly via email. Customer may access all Account Communications for at least thirty (30) days from the date of initial posting. Customer acknowledges and agrees that all Account Communications will be deemed to constitute good and effective delivery to Customer upon posting, regardless of whether Customer actually or timely receives or accesses the Account Information, or if Account Communications are delivered directly to Customer via email, when so delivered.
3. Changes in Delivery Method. Customer must notify Bank if it wishes to discontinue use of the Electronic Delivery Service. Following Bank’s receipt of such notice and after Bank has a reasonable opportunity to act on such notice, Customer will thereafter begin to receive Account Communications via U.S. mail beginning with Customer's next statement cycle and/or mailed Confirmation.
4. Reporting Unauthorized Transactions or Erroneous Statements.
Customer agrees to promptly and carefully review all Account Communications as and when delivered and notify Bank in accordance with this Agreement if Customer objects to any of the information provided.
5. Third-Party Services. Customer acknowledges and agrees that Customer's access to the Electronic Delivery Service and Customer's receipt of email notifications when Account Communications are posted may be delayed or prevented by factors affecting Customer’s or Bank’s Internet or telephone service provider(s) or other similar entities (“ThirdParty Service Providers”). Bank makes no representations or warranties whatsoever with regard to the products and services offered by such ThirdParty Service Providers and shall not be liable for any loss caused, in whole or in part, by a Third-Party Service Provider.
6. International Use. Bank makes no representations or warranties that any content or use of the Electronic Delivery Service is appropriate, legal, or available in locations outside the United States. Customer
acknowledges and agrees that accessing the Electronic Delivery Services from territories where its contents or use is illegal and is prohibited by Bank. If Customer accesses the Electronic Delivery Service from locations outside the United States, Customer does so at its own risk. Customer is responsible for compliance with local laws.
7. Proprietary Rights; Materials; Trademarks. All content included or available through the Electronic Delivery Service (other than Customer’s account information), such as advertisements, tests, graphics, logos, button icons, images, audio clips and software, is the property of Bank and/or third parties and is protected by copyrights, trademarks, or other intellectual property rights. The compilation (meaning the collection, arrangement, and assembly) of all content on the Electronic Delivery Service is the exclusive property of Bank and/or its licensors and is protected by copyrights or other intellectual property rights. The trademarks, logos and service marks displayed on the Electronic Delivery Service (collectively, “Trademarks”) are the registered and unregistered Trademarks of Bank or third parties. Under no circumstances may Customer use, copy, alter, modify, or change these Trademarks. Nothing contained on the Electronic Delivery Service should be construed as granting by implication or otherwise any license or right to use any Trademark without the express written permission of Bank or the third party that has rights to such Trademark, as the case may be.
Your Deposit Account Agreement Addendum
(Beginning July 8, 2024, this is a required accompaniment to the May 13, 2024 Your Deposit Account Agreement document)
Effective August 12, 2024, please review updates made to the Your Deposit Account Agreement document which may affect your rights.
Beginning July 8, 2024, you can review the full revised document at usbank.com/YDAA-upcoming-version, by calling 24-Hour Banking at 800-USBANKS (872-2657) or by visiting your local U.S. Bank branch. We accept relay calls.
Here’s what you should know:
• Under the Time Deposits section, the early withdrawal fee will be removed.
If you have questions, please call us at 800-USBANKS (872-2657) – we’re available to help! You can also schedule an appointment at usbank.com/book to speak with a banker in person, by phone or virtually.
Your
Deposit
Account
Agreement
&
General Terms & Conditions
Electronic Transfers
Funds Availability
Effective May 13, 2024
Member FDIC
1 Frequently Asked Questions to Manage
Your Account:
What common terms should I be aware of?
Definitions 3
What happens if my account becomes overdrawn?
Liability for Charges and Overdrafts 4
Transaction Posting Order 4
Insufficient Funds and Overdrafts 7
Overdraft Handling 7
Overdraft Protection Plans 8
Will this Deposit Account Agreement ever change?
Changes to Our Agreement with You 13
How do I close my account?
Closing Your Account 14
How can I expect to receive statements and other account communications?
Statements and Notices 14
How soon can I use my funds after making a deposit?
Funds Availability: Your Ability to Withdraw Funds –
All Accounts
Determining the Availability of a Deposit – All Accounts 18 Immediate Availability – All Accounts 18
Longer Delays May Apply 18
Retail Consumer, Business and Commercial Accounts 18
Wealth Management Accounts 18
Deposits at Automated Teller Machines – Retail Consumer, Business and Commercial Accounts 18
Special Rules for New Accounts – Retail Consumer and Business Accounts 19
Cashing Checks 19
Other Accounts 19
How do I report an error or fraud on an electronic transaction in my account?
Electronic Fund Transfers for Consumer Customers 20
Electronic Fund Transfers for Business Customers 23
Table of Contents
Terms Applicable to all Accounts
This is an Agreement 3
Definitions 3
Privacy 3
Cellular Phone Contact Policy 3
Monitoring and Recording Communications 3
Waivers and Precedents 3
Applicable Law 3
Customer Identification Program Notice (USA PATRIOT Act) 3 Owner’s Authority 4
Authorized Access and Power of Attorney 4
You Cannot Transfer an Account 4
Change in Authorized Signers 4
Adjustments 4
Retention of Documents 4
Liability for Charges and Overdrafts 4
Transaction Posting Order 4
Deposits 5
Returned Deposited Items For Business Accounts Only 5
Check 21 5
Substitute Checks and Your Rights 5
Copies of Documents 6
Night Depository 6
Checks 6
Endorsement Standards 6
Insufficient Funds and Overdrafts 7
Overdraft Handling 7
Overdraft Protection Plans 8
Refusing Payment on Your Checks 9
Funds Transfers 10
Withdrawal Rights, Ownership of Account, and Beneficiary Designation 10 Pledges and Security Interests in Favor of Others 12
Accrual of Interest 12
Stop Payments 12
Dormant Accounts and Escheat 12
FDIC Part 370 Record-keeping 12
Consumer Electronic Check Re-presentment 13
Checking Accounts and “Subaccounts” 13
Telephone Transfers 13
Required Signatures 13
Changes to Our Agreement with You 13
Closing Your Account 14
Statements and Notices 14
Return of Cancelled Checks 15
Checks, Checking Accounts and Savings Accounts with Draft Access 15 Savings Accounts 15
Time Deposits 15
Limit of Liability 15
Electronic Messages and Agreements 15
Levies, Garnishments and Other Legal Process 15
Resolving Account Disputes and Adverse Claims 16
Increased Costs to Maintain Your Account 16
Consumer Report Disputes 16
Account Information 16
Setoff 16
Security Interest in Accounts 16
Security 17
Resolution of Disputes by Arbitration 17
Attorney’s Fees 18
Litigation Class Action Waiver 18
2 Funds Availability: Your Ability to Withdraw Funds – All Accounts Determining the Availability of a Deposit – All Accounts 18 Immediate Availability – All Accounts 18
Longer Delays May Apply 18
Retail Consumer, Business and Commercial Accounts 18
Wealth Management Accounts 18
Deposits at Automated Teller Machines – Retail Consumer, Business and Commercial Accounts 18
Special Rules for New Accounts – Retail Consumer and Business Accounts 19 Cashing Checks 19
Other Accounts 19
Additional Terms for Business Accounts
Unlawful Internet Gambling and Other Illegal Transactions 19 Deposit of Pre-Authorized Drafts 19
Earnings Credit 19
Waiver of Notification of Redeposited Checks 19
Facsimile Signatures 19
Deposits 19
Fraud Prevention Measures 20
Electronic Fund Transfers for Consumer Customers
Types of Transactions 20
Limits on Transfers 21
Fees 21
Using Your Card for International Transactions 21
Advisory Against Illegal Use 22
Documentation 22
Preauthorized Payments 22
Our Liability 22
Unauthorized Transactions and Lost or Stolen Cards 22
Consumer Liability for Unauthorized Transfers 22
Business Days 22
Confidentiality 22
Error Resolution Notice 23
Notice of ATM/Night Deposit Facility User Precautions 23 Electronic Fund Transfers for Business Customers
Account Access 23
Limits on Transfers 23
Fees 24
Using Your Card for International Transactions 24
Balance Requirements 25
Unauthorized Transactions and Lost or Stolen Cards and Security 25 3 TERMS APPLICABLE TO ALL ACCOUNTS
THIS IS AN AGREEMENT
Welcome to U.S. Bank and thank you for opening an account with us.
This Agreement provides the general rules that apply to the account(s) you have with U.S. Bank (“us”) described herein. Additional rules will be provided in:
1. disclosures we give you when you open your account for example our Consumer Pricing Information, Business Pricing Information and U.S. Bank Business Essentials® Pricing Information
disclosure(s) and other fee disclosures (All disclosures can be obtained by stopping in a U.S. Bank branch or for the Consumer Pricing Information only, call 800-872-2657 to request a copy);
2. disclosures that are applicable to additional products and services (for example the Digital Services Agreement);
3. periodic statements;
4. user guides;
5. Consumer Privacy Pledge disclosure;
6. any appropriate means such as direct mail and notices on or with your statement, including any statements or notices delivered electronically; and
7. disclosures we give you about ATM and Debit Card Overdraft Coverage (applicable to certain consumer accounts, refer to the Insufficient Funds and Overdrafts section on page 7 for details).
These things, together, are an agreement between you and U.S. Bank.
Please read this carefully and retain it for future reference. This disclosure is revised periodically, so it may include changes from earlier versions.
By providing a written or electronic signature on a signature card or other agreement or contract, opening, or continuing to hold an account with us, you agree to the most recent version of this Agreement, which is available to you at your local U.S. Bank branch, at www.usbank.com, or by calling U.S. Bank 24-Hour Banking at a number listed on the last page of this disclosure.
This Agreement represents the sole and exclusive agreement between you and us regarding the subject matter described herein and supersedes all previous and contemporaneous oral agreements and understandings. If any terms of your signature card, resolution, or certificate of authority are inconsistent with the terms of this Agreement, the terms of this Agreement will control. Any other variations to this Agreement must be acknowledged by us in writing.
If you have any questions, please call us. Our most commonly used phone numbers are printed on the back of this disclosure.
DEFINITIONS
The following definitions apply in this Agreement except to the extent any term is separately defined for purposes of a specific section. • The words “we,” “our,” and “us” mean U.S. Bank National Association (“U.S. Bank”). We are a national bank. We are owned by U.S. Bancorp.
• U.S. Bancorp and U.S. Bank own or control other companies, directly and indirectly. The members of this family of companies are our “affiliates.” The words “you” and “your” mean each account owner and anyone else with authority to deposit, withdraw, or exercise control over an account. If there is more than one owner, then these words mean each account owner separately, and all account owners jointly.
• The term “account” means any savings, transaction (for example, checking, NOW Account), and time deposit (for example,
certificate of deposit or CD) account or other type of account you have with us, wherever held or maintained.
• An “owner” is one who has the power to deal with an account in his, her or its own name. An “agent,” in contrast, is one whose power to withdraw from an account comes from, or is on behalf of, the owners. Authorized signers, designated corporate officers, trustees, attorneys-in-fact, and convenience signers are examples of agents. • Entities such as corporations, limited liability companies, partnerships, estates, conservatorships, and trusts are not natural persons, and can only act through agents. In such cases, it is the “entity” that is the owner.
• “Personal accounts” are consumer accounts in the names of natural persons (individuals). They are to be distinguished from “nonpersonal accounts” which are accounts in the name of businesses, partnerships, trusts and other entities.
• An “account cycle” or “statement cycle” represents the period of time when your statement starts and ends. It’s approximately 30 days long but doesn’t necessarily align with the beginning and end of the month and won’t end on a weekend or holiday.
Except where it is clearly inappropriate, words and phrases used in this document should be interpreted so the singular includes the plural and the plural includes the singular.
PRIVACY
Protecting your privacy is important to us. All information gathered from you in connection with your account relationship will be governed by the provisions of our privacy policies which are available online, within our mobile app(s), or by calling us.
You authorize your wireless carrier to use or disclose information about your wireless account and your wireless device, if available, to us or our service provider for the duration of our relationship, solely to help us identify you or your wireless device and to prevent fraud. See our privacy policies to see how we treat your data.
CELLULAR PHONE CONTACT POLICY
By providing us with a telephone number for a cellular phone or other wireless device, including a number that you later convert to a cellular number, you are expressly consenting to receiving communications — including but not limited to prerecorded or artificial voice message calls, text messages, and calls made by an automatic telephone dialing system—from us and our affiliates and agents at that number. This express consent applies to each such telephone number that you provide to us now or in the future and permits such calls for nonmarketing purposes. Calls and messages may incur access fees from your cellular provider.
MONITORING AND RECORDING COMMUNICATIONS
You acknowledge and agree that we, or anyone acting on our behalf, may monitor and/or record any communication between you and us, or anyone acting on our behalf, for quality control and other purposes. You also acknowledge and agree that this monitoring or recording may be done without any further notice to you. The communication that may be monitored or recorded includes telephone calls, cellular or mobile phone calls, electronic mail messages, text messages, instant or live chat, or any other communications in any form.
WAIVERS AND PRECEDENTS
Our Agreement with you gives us rights and duties. If we don’t take advantage of all our rights all the time that does not mean we lose them.
For example:
• If we make funds available to you for withdrawal ahead of schedule, that does not mean we have to do it again.
• If we pay a check that is more than your account balance, that does not mean we have to do it again.
APPLICABLE LAW
Unless otherwise stated herein, your account and this Agreement will be governed by federal law and, unless superseded by federal law, by the law of the state in which your account is located. If you opened your account in person, it is located in the state in which you opened it. If you opened your account online, in the U.S. Bank Mobile App or by telephone and you reside in a state in which we have a branch at that time (or reside within 50 miles of a branch), it is located in the state in which the branch is located. If you reside anywhere else, then your Account is located in Minnesota.
CUSTOMER IDENTIFICATION PROGRAM NOTICE (USA
PATRIOT ACT)
To help the government fight the funding of terrorism and money laundering activities, federal law requires all financial institutions to obtain, verify, and record information that identifies each person who opens an account.
What this means for you
When you open an account, we will ask for your name, address, date of birth, and other information that will allow us to identify you. We may also ask to see other identifying documents like a driver’s license or documents showing your existence as a legal entity.
Existing customers
Even if you have been a customer of ours for many years, we may ask you to provide this kind of information and documentation because we may not have collected it from you in the past or we may need to update our records.
4 Failure to Provide Information
If, for any reason, any owner is unable to provide the information necessary to verify their identity, their account(s) may be blocked or closed, which may result in additional fees assessed to the account(s).
OWNER’S AUTHORITY
Each owner of a personal account, or an agent for a non-personal account, acting alone, has the power to perform all the transactions available to the account. For example, each owner or agent can:
1. make withdrawals by whatever means are available for the account;
2. make deposits by whatever means are allowed for the account;
3. obtain and release information about the account;
4. sign or authenticate any document in connection with the account (for example, an owner can endorse a check payable to a co-owner for deposit to a joint account);
5. give rights to others to access the account (for example, any owner could grant a power of attorney to have access to the account); and
6. close the account.
In addition, if you share ownership of an account with someone else (for example, you have a joint or multi-party account), then each of you can endorse items for deposit to the account on behalf of another owner. If there is shared ownership of an account, it is the intention of all owners that each of you has complete and separate access and withdrawal rights to all the funds in the account irrespective of who had deposited the funds in the account.
U.S. Bank makes no warranty or representation as to the suitability of any deposit product outside the United States of America.
AUTHORIZED ACCESS AND POWER OF ATTORNEY
Each owner of your account is independently permitted to authorize someone else to access your account. For example, the following persons will have access to your account:
1. Any person listed on a signature card, resolution, or certificate of authority as being authorized to make withdrawals or transfers, by check or otherwise, from your account;
2. Any person that you authorize to make withdrawals or transfers from the account by whatever means the account allows (for example, pre-authorized withdrawals, wire transfers, ATM card, or debit card transactions);
3. Any person you give rights to act on your behalf, such as a power of attorney;
4. Any person to whom you make your checkbook or your checking account number available for purposes of transacting business on the account. We discourage this type of “authorization” because it is possible that we will detect such transactions and treat them as unauthorized. If you give any such person “authority,” we are not responsible whether we honor the transactions or dishonor them; and
5. Any person to whom you make your ATM card or debit card personal identification number (PIN) available. Although we discourage this practice, by allowing this type of “authorization,” the person to whom you make your personal identification number (PIN) available may be able to access all of your accounts held with us by using the telephone, ATM, online or other banking access channels. If you give any person such “authority,” we are not responsible for actions they take with respect to your accounts.
We will use the word “agent” to mean any person who you authorize to act on your behalf, whether by following the process we require (for example, by designating an authorized signer on a signature card), or on your own (for example, by creating a power of attorney). If you name such an agent:
1. we may require that you use forms we approve and require each owner to sign the form to be effective;
2. the powers you give to your agent, and any limitations on those powers, are between you and your agent, even if we have express written notice of those powers. You understand and agree that we have no duty or responsibility to monitor the acts of your agent or ensure that the acts of your agent are for your benefit. For example, if you only give your agent authority to pay your bills and your agent exceeds that authority, we are not responsible for that breach of authority;
3. you agree not to hold us responsible for any loss or damage you incur as a result of us following instructions given to us by your agent;
4. the owners of the account are responsible to us for any actions of your agent, regardless of whether those actions exceed the authority given or whether the agent is appointed by all the owners or less than all the owners;
5. the agency will end if the owner dies and we have actual knowledge of that death, or if there is more than one owner, the agency will end after the death of the last owner and we have actual knowledge of that death and, in either case, once we’ve had reasonable opportunity to act on it;
6. the agency will end after the owner notifies us in writing to end the agency and we have had a reasonable opportunity to act on it; and
7. if you authorize any third person, such as a bookkeeping service, an employee, or agent of yours to retain possession of or prepare items, you agree to assume full responsibility for any errors or wrongdoing performed or caused by such third person or any of its agents or employees if we should pay any such item.
YOU CANNOT TRANSFER AN ACCOUNT
You may not transfer an account to someone else without our express written permission. This does not limit your right to access your account by any permissible means.
CHANGE IN AUTHORIZED SIGNERS
Any owner, including one of the owners of a joint account, may add owners or authorized signers to an account; however, we have the right to require the signature of all owners to make the change. Only under special circumstances and subject to prior approval by us may an owner remove another owner or authorized signer from an account.
No change in owners or authorized signers is effective until we have received written notice of the change and have had adequate time to approve and act on it.
ADJUSTMENTS
If we (or you, or you and us together) make an error on your account, we can fix the error without first notifying you. For example, if:
• the dollar amount of your check is paid for the incorrect amount; • a deposit is added incorrectly;
• we apply a deposit to the wrong account;
we can fix the error without any special notice to you, though such a correction will normally appear on your statement if the error and the correction occur on different business days.
For accounts coded as Consumer and Business accounts, we may not adjust for insignificant errors unless you request it. For all other account types including Corporate and Commercial accounts, we may not adjust for deposit errors of $50.00 or less unless we have agreed with you to a lower adjustment amount.
RETENTION OF DOCUMENTS
You should retain your copy of deposit receipts and other documents associated with your deposit(s). Should you claim that a deposit was incorrectly credited, we may request a copy of your receipt or other documents associated with your deposits.
LIABILITY FOR CHARGES AND OVERDRAFTS
All account owner(s) are responsible to repay to us any overdraft amount and any overdraft fees charged to an account, no matter which owner caused it or why, subject to rights under the Electronic Fund Transfers Act. That repayment is due immediately, and we will take it from your next deposit or whenever funds become available in your account. If there is more than one owner, each owner is separately, and all owners are jointly, responsible for an overdraft and any account fees. (This means we can collect the total from any owner(s), on any of the owner(s) accounts, but we won’t collect it more than once). For more information on overdrafts please refer to the section titled Insufficient Funds and Overdrafts.
We list the charges that you may incur on your account in separate pricing information disclosures or agreements for your account.
TRANSACTION POSTING ORDER
We reserve the right to decide the order of the items we will pay and which items will be returned (if any). Our posting order may not be the same as the order in which you conducted a transaction and could result in overdraft fees, if you do not have available funds at the time the item is paid. Generally, we post the following three transaction types after the close of each business day in the following order:
5 1. Deposits we receive before the daily cutoff time will be posted before any withdrawals. (Refer to our Cutoff Time and/or Funds Availability section for cutoff time description.)
2. Your non-check withdrawals will be posted in date/time order, based on the date and time associated with each transaction. A date and time (if one is available) will be assigned to each transaction based on one of the following: (1) when the transaction was preauthorized (for example a debit card or ATM transaction was approved); or (2) when the transaction was processed by U.S. Bank (for example an ACH, or bill pay transaction for which there is no pre-authorization). If a date and time is not available, these transactions are posted to your account after all transactions with a valid date and time or check number are complete, and posted to your account in order of amount, starting with the lowest transaction amount first (frequently referred to as low-to-high).
3. Your checks will be posted in check number order, starting with the lowest number. (For example: on Monday we may receive and post check # 107; on Tuesday we may receive check # 102 and # 105, and those would be posted on Tuesday in the order of lowest check number (e.g., # 102) posting first).
DEPOSITS
When you make a non-cash deposit to your account, we give you credit for that deposit, but that credit is provisional (temporary). If the deposit needs to be collected from another financial institution, we must be paid before the credit becomes final. After a credit is final it may still be reversed if the funds cannot be collected. See the sections titled Returned Deposited Items For Business Accounts Only and Funds Availability.
All deposit receipts are issued subject to our count and verification of the items deposited. You should retain your copy of deposit receipts and other documents associated with your deposit(s). Should you claim that a deposit was incorrectly credited, we may request a copy of your receipt or other documents associated with your deposit.
Foreign Currency: Deposits received in a foreign currency, whether by check, foreign currency notes, wire-transfer, or otherwise, must be converted to U.S. dollars prior to being deposited into your account.
U.S. Bank will convert your funds at an exchange rate established by U.S. Bank and/or our foreign currency vendor on the business day when such exchange is processed. Currency exchange rates are determined in our sole discretion based on factors such as market conditions and risk, economic and business factors. The exchange rate is an all-in rate which includes our profit, fees, costs, and charges. Currency exchange rates will be applied to these deposits without notice to you. You agree to this procedure and accept our determination of the currency exchange rates.
Foreign currency conversions and verification of foreign currency notes can take time and exchange rates fluctuate at times significantly. Foreign currency notes that are determined to be counterfeit, outdated, or out of circulation will be rejected for conversion and returned to U.S. Bank as unacceptable, and U.S. Bank may reverse any provisional credit made to your account when you deposited such items. You acknowledge and accept all risk that may result from such fluctuations, rejections and returns. Your transaction is a retail transaction. Retail foreign exchange conversion rates are different from the wholesale exchange rates for large transactions between two banks as may be reported in The Wall Street Journal or elsewhere. Exchange rates offered by other banks or shown at other sources (including online sources) may be different from our exchange rates. The exchange rate you are offered may be different from, and likely inferior to, the rate paid by U.S. Bank to acquire the underlying currency. The exchange rate may also be different from a rate offered by U.S. Bank to a different customer, at a different time, for a different transaction amount, or in a different payment channel (checks, wire-transfers, etc.).
U.S. Bank sometimes relies on other financial institutions or vendors in the conversion process. In this event, the conversion and acceptance of notes will be in accordance with the policies and procedures of that bank or vendor and the funds will be converted at the exchange rate determined by that bank or vendor. Any fees or charges assessed by that bank or vendor will be passed on to you. Your final credit will be adjusted to reflect that final exchange rate and acceptance of notes less all fees or charges.
Foreign Checks: Checks and other items drawn off a foreign financial institution, whether negotiable in a foreign currency or in U.S. dollars may require special funds collection processing by us. As a result, funds availability may be delayed. If you deposit such an item, you agree that we may delay funds availability at our discretion until we are satisfied that we have received final payment of the item.
Deposits by Mail: Deposits you send by mail are considered deposited on the business day it arrives at the bank. (See our Funds Availability section.)
Cutoff Time: A deposit made after our daily cutoff time on a business day, or on a day we are not open for all forms of business, will be considered deposited on the next full business day. (Refer to our Funds Availability section for cutoff time description.) The cutoff time applies to all accounts (savings, certificate of deposits, payments, etc.), not just checking accounts.
Endorsement: If you make a deposit to an account and you fail to endorse the item, we may add an endorsement on any item and you will be responsible for the item as if you endorsed it yourself.
We can refuse to accept any item or other type of deposit, for any reason, or no reason, or impose conditions on a deposit. For example, we can treat a deposit as an “inquiry” or take an item for “collection” instead of deposit. We may also decline to accept a large cash deposit or require you to make such a deposit at a location and time of our choosing.
RETURNED DEPOSITED ITEMS FOR BUSINESS ACCOUNTS
ONLY
The funds you deposit to your account are subject to normal collection processes even after we make the funds available to you for withdrawal (i.e., the check has “cleared”). If we do not collect the funds, or we need to return the funds, your deposit will be reversed and become your responsibility. Returned items are charged back to your account and a Return Item Advice notice is mailed to the primary account address on file.
For example:
• The deposit amount of the check is recorded incorrectly to your account. The person who wrote the check catches the error, and reports it to their bank, who in turn reports it to us. We would reverse the incorrect portion of the deposit and correct the mistake. • A check you deposit has a forged endorsement. The person who wrote the check notices the forgery and reports it to their bank, who reports it to us. We would reverse the deposit and collection of the check would become your responsibility.
There will be one fee posted for the sum of all Returned Deposited Item fees returned within a single transaction as well as applicable overdraft fees if sufficient funds are not in your account to cover your items.
CHECK 21
Check processing is getting faster as banks begin to process checks “electronically.” We are required by law to provide the notice in the following section (SUBSTITUTE CHECKS AND YOUR RIGHTS), which explains the differences between your original check (which might not be returned) and a substitute check, and your rights in the event the substitute check causes a loss that would have been avoided if the original check was still available.
SUBSTITUTE CHECKS AND YOUR RIGHTS
What is a substitute check?
To make check processing faster, federal law permits banks to replace original checks with “substitute checks”. These checks are similar in size to original checks with a slightly reduced image of the front and back of the original check. The front of the substitute check states: “This is a legal copy of your check. You can use it the same way you would use the original check.” You may use the substitute check as proof of payment just like the original check.
Some or all of the checks that are returned to you from us may be substitute checks. This notice describes your rights you have when you receive substitute checks from us. The rights in this notice do not apply to original checks, photocopies of original checks, or to electronic debits to your account. However, you have rights under other laws with respect to those transactions.
What are my rights regarding substitute checks?
In certain cases, federal law provides a special procedure that allows you to request a refund for losses you suffer if a substitute check is posted to your account (for example, if you think that we withdrew the wrong amount from your account or that we withdrew money from your account more than once for the same check). The losses you may attempt to recover under this procedure may include the amount that was withdrawn from your account and fees that were charged as a result of the withdrawal (for example, overdraft fees).
The amount of your refund under this procedure is limited to the amount of your loss or the amount of the substitute check, whichever is less. You are also entitled to interest on the amount of your refund if your account is an interest-bearing account. If your loss exceeds the amount of the substitute check, you may be able to recover additional amounts under other law.
If you use this procedure, you may receive up to $2,500.00 of your refund (plus interest, if your account earns interest) within ten business days after we received your claim and the remainder of your refund (plus 6 interest, if your account earns interest) not later than 45 calendar days after we received your claim.
We may reverse the refund (including any interest on the refund) if we later are able to demonstrate that the substitute check was correctly posted to your account.
How do I make a claim for a refund?
If you believe that you have suffered a loss relating to a substitute check that you received and that was posted to your account, please call U.S. Bank 24-Hour Banking (see last page for phone numbers) or write to us at U.S. Bank, 60 Livingston Ave, EP-MN-WS5D, St. Paul, MN 55107.
You must contact us within 40 calendar days of the date that we mailed (or otherwise delivered by a means to which you agreed) the substitute check in question or the account statement showing that the substitute check was posted to your account, whichever is later. We will extend this time period if you were not able to make a timely claim because of extenuating circumstances.
Your claim must include:
1. a description of why you have suffered a loss (for example, you think the amount withdrawn was incorrect);
2. an estimate of the amount of your loss;
3. an explanation of why the substitute check you received is insufficient to confirm that you suffered a loss; and
4. a copy of the substitute check or identifying information such as the check number and the name of the person to whom you wrote the check.
COPIES OF DOCUMENTS
We do not typically keep the original paper documents (like deposit slips) associated with your account for a long time. We image most of the documents that end up with us and destroy the paper originals.
Electronic images is one type of media that is used, but as technology changes, there are and will be other imaging techniques. You agree that such images will be sufficient for all purposes.
See the section titled CHECK 21. To facilitate check imaging and electronic check collection, it is important that you take care with the transactions you create on paper. When completing a check, you must:
1. write clearly;
2. use black or dark blue ink in the date, pay to, amount, and signature fields; and
3. use only the space provided for your part of a transaction. (See the section on ENDORSEMENT STANDARDS.)
You agree to reimburse us for any losses and costs we incur as a result of a poor check image caused by a deficiency in the written check, whether due to your failure to follow these guidelines or otherwise. You also agree to reimburse us for any losses and costs we incur as a result of a poor check image caused by a deficiency in the written check that you accepted and deposited as the payee.
NIGHT DEPOSITORY
If you arrange for night depository services, you must comply with the following two rules and also comply with the rules in any separate night depository agreement.
1. Use of Containers. Each deposit placed in the depository must be contained in a sealed envelope, or in a bag or pouch that has been approved or supplied by us. Deposits are only processed to accounts held at U.S. Bank.
2. Care. You must take appropriate care when you put the container in our night depository or other facility to make sure the container is received by us.
Our responsibility for the security of the container and the drawer or facility is to use reasonable care. This means we are not automatically liable for just any loss, only for losses that result from our own negligence, only to the extent we caused a loss, and reduced by your contribution to any loss. In legal terms, we are a “bailee” until the point:
• when we open the container and inventory its contents (if that is what we are asked to do); or
• when you sign the receipt for or take custody of the container (if we do not open the container).
CHECKS
Post-Dated Checks. We are not responsible to you if we pay a check before its date, even if we have noticed that it is post-dated. If we, at our option, refuse to pay a check because it is presented before its date, you will have to pay, if applicable, the fee we charge for an overdraft.
If you want to be sure we do not cash it before its date, you must stop its payment by following our rules for stop payments in the STOP PAYMENTS section of this Agreement and follow our procedures for revoking a stop payment request.
Stale-Dated Checks. A “stale-dated” check is one that is brought to us for payment more than six months after its date. We may pay, or refuse to pay, a check brought to us (“presented”) more than six months after its date. The general rule is we will pay the check, however we may return the check for insufficient funds. In addition, the check would be subject to an overdraft. If you do not want us to pay a stale-dated check, you must place a stop payment order on the check.
Check Legends. We are not required to honor any legends or memos you put on your checks, even if we are aware of them. By a “legend” or “memo” we mean a message, such as “not valid for more than $50.00” or “do not pay more than ten days after date” or “paid in full”.
Check Forms. Checks are sorted and copied by high speed equipment. If you don’t buy your checks through us, you must get them approved by us or we will not be responsible if your checks do not process correctly. See the section titled COPIES OF DOCUMENTS for additional information on inks and related issues.
Deposits of Checks at ATMs
We reserve the right to refuse to credit your account for ATM deposits of the following items. If an item is refused the item or a substitute check may be returned via mail to the primary account address.
1. All the check payees are not listed on the account;
2. Checks payable to a business and the business name is not listed on the account. (Checks payable to a business must be deposited into an account that includes the name of the business on the associated account);
3. Improperly endorsed (for example, different endorser than payee);
4. Restrictive wording (on the deposited item);
5. Post-dated (greater than one day after the ATM network business day);
6. No date or incomplete date;
7. Altered in any way;
8. Photocopy of item;
9. Not signed by maker;
10. Traveler’s check with different counter signature;
11. Drawn on a foreign bank;
12. Missing the numeric amount and/or the written amount;
13. Numeric amount and written amount do not match;
14. No payee listed;
15. Federal tax refund checks not endorsed by payee or payees; and
16. Any other instrument which is not a check or negotiable instrument.
ENDORSEMENT STANDARDS
The payee of a check (the person to whom a check is payable) must sign (endorse) the check on the back in the space shown in the picture. If a check is transferred to someone else before it gets deposited or cashed, that person (the transferee) may also be required to sign the check.
Every bank that handles a check on its way to the bank that is asked to pay it also has to identify itself on the back of the check. The space for those banks is to the right of the space shown for the payee and other “holders” (see picture below).
When you endorse a check, you must:
1. clearly sign your name;
2. use black or dark blue ink if possible;
3. never use a faint color, like red, pink or any pastel, or a gel ink (these do not copy well);
4. sign near the top of the space provided, or just below any other signature in that space;
5. stay out of the area below the space for endorsers (most check forms have a line separating the endorsement area); and
6. keep any stamp within the area set aside for handwritten signatures.
7 The picture on this page shows you the correct endorsement area.
FRONT OF CHECK
Bank Name
and Location
Pay to the
order of $
dollars
20 Name
Address, City, State
7654
BACK OF CHECK
Memo
Keep your endorsement
out of this area. 1 1/2"
TRAILING EDGE
YOUR ENDORSEMENT MUST
BE WITHIN THIS AREA
Why is this important?
If your endorsement of a check, or the endorsement of someone from whom you took the check, either:
1. causes a delay in a necessary notice to someone else, or
2. prevents someone from being identified quickly enough (and therefore cannot get notice or cannot get it in time).
You will be responsible for the check and the loss that occurs because it is not paid. It will then be up to you to try and recover from someone else who might be liable.
INSUFFICIENT FUNDS AND OVERDRAFTS
“Account Balance” means the funds in your account, including deposits and withdrawals made to date. Not all your transactions will be immediately reflected. As a result, only part of this balance may be available for withdrawal.
“Available Balance” means the amount of money that can be withdrawn at a point in time. The Available Balance will be less than the Account Balance when there are pending transactions such as:
• Funds held from deposits: These funds have been deposited but are not yet fully available for withdrawal or transfer. Once these funds are available, they will be reflected in the Available Balance. • Funds held for debit card authorizations: This reflects merchantauthorized requests for payment, when the final charge has not been submitted by the merchant. Debit card authorizations will be reflected as pending transactions and/or will reduce your Available Balance from the time we receive the authorization until the merchant presents the item for payment. If the debit card transaction has not been presented for payment within seven business days, it may be removed from your pending transactions and your Available Balance may no longer be reduced by the authorization amount. Once the final charges have been received and processed, they will be reflected in the Available Balance. • Any other holds on funds in your account.
Note: The Available Balance does not reflect every transaction you have initiated or previously authorized. Items that may not be reflected in your Available Balance include, but are not limited to:
• Outstanding checks and authorized automatic withdrawals (such as recurring debit card transactions, transfers, and ACH transactions that we have not received for payment or processing).
• The final amount of a debit card purchase. For example, we may authorize a purchase amount from a restaurant or a gas station, but the authorized amount may be different from the final charge.
Once a final charge has been received and processed, it will be reflected in the Available Balance. (Please refer to “Debit Card Transactions” subsection for more information about how these situations are handled.)
• Scheduled bill payments that have not yet been processed. • Debit card transactions that have been previously authorized but not sent to us for payment from your account where we have released the transaction authorization hold and the transaction is sent for payment from your account at a later date.
“Insufficient funds” means your Available Balance is insufficient to pay the transactions you are attempting from that account.
Having insufficient funds in your account could lead to returned items, which refers to any withdrawal or transfer that we return because it exceeds your Available Balance on a given day. Examples of withdrawals that could be returned may include any checks, ACH transactions, online or mobile bill payments, or any other debit from your account where we return it because it is for more than the Available Balance you have in your account at the time the transaction is presented to your account. We reserve the right to pay an insufficient funds withdrawal and overdraw your account, which may result in an Overdraft Paid Fee. If we’ve paid insufficient funds items before, we are not required to do it in the future. “Overdraft” means a transaction has caused the Available Balance on an account to become a negative number. An overdraft can happen, for example:
• by writing a check without enough money in your checking account to pay the check, and we pay the item;
• by making a withdrawal from your account that exceeds your Available Balance;
• by using your U.S. Bank Debit Card for payment without enough money in your checking account to cover the amount authorized or the amount paid to the merchant. If any debit card transaction results in a negative Available Balance at the time it is presented for payment;
• by making a deposit, withdrawing money based on the credit received from that deposit, and then having that deposit reversed because the deposited item is later returned to us unpaid; • by withdrawing money from your account and not having enough money left to pay any related charges posted to the account; • when funds are credited to your account in error and you use the funds, and the reversal of the credit results in an overdraft; or • when fees such as monthly maintenance fees are charged, and you do not have sufficient funds to cover.
Our Options: You do not have the right to withdraw funds that exceed the Available Balance on your account. When an item of yours overdraws an account, we can either pay or return the item. You cannot choose which items we pay or return, except as identified in your selection of “Overdraft Handling” (as identified later).
If we get a batch, or multiple batches, of such items in a day (for example, checks, ATM purchase transactions, and debit card purchase transactions typically come in batches), and if one, some or all of them would overdraw the account if paid, we will post items in accordance with the “Transaction Posting Order” section listed within this Agreement.
This may result in processing larger dollar items before smaller dollar items, even though this would have the effect of reducing your Available Balance more quickly.
Our Fees: We charge an Overdraft Paid Fee for each item or transaction we pay that causes the Available Balance to become negative or occurs while the Available Balance is negative on the account. Any Overdraft Paid Fees are deducted from your account on the next business day. See the current pricing information disclosure for information on fees and how fees will be assessed. If you want to avoid the inconvenience and extra expense of overdraft fees, refer to the sections titled “Overdraft Handling” on page 7 and “Overdraft Protection Plans” on page 8 for information.
There are some circumstances that can take your account into a negative balance where we will not charge a fee, for example:
• If certain fees such as your monthly maintenance fee are the only items that resulted in the negative balance.
• If the negative Available Balance is less than our threshold. See your Consumer Pricing Information, Business Pricing Information or U.S. Bank Business Essentials® Pricing Information disclosure(s) for specific information. (All disclosures can be obtained by stopping in a U.S. Bank branch or for the Consumer Pricing Information only, call 800-872-2657 to request a copy.)
Your responsibilities for overdrafts: If you have an overdraft on your account (excluding consumer checking accounts), you must deposit enough money into your account to pay both the overdraft amount and the fees we charge. If you have an overdraft on your consumer checking account only (excluding Safe Debit accounts), please refer to the section titled “U.S. Bank Overdraft Fee Forgiven” on page 8 for more information.
If you share ownership of your account with someone else, you are responsible for the overdraft, whether or not you personally caused the overdraft or benefited from it.
OVERDRAFT HANDLING
Consumer Checking and Money Market Accounts:
Most U.S. Bank Consumer checking and money market accounts come with Standard Overdraft Coverage. Under Standard Overdraft Coverage we will authorize and pay overdrafts for these types of transactions at our discretion:
• Checks and other transactions using your checking account number • Automatic bill payments
• Recurring debit card transactions, for example setting up your debit card to automatically pay a monthly gym membership. We rely on the merchant to inform us if a debit card transaction is a one-time or a recurring transaction.
8 If we pay these transactions into overdraft, we may charge an Overdraft Paid Fee. See the Consumer Pricing Information disclosure for additional details.
In addition to Standard Overdraft Coverage, you have the following options outlined below.
ATM and Debit Card Overdraft Coverage:
Upon opening your U.S. Bank consumer checking or money market account, or after your account is opened, you have the option to say ‘Yes’ or ‘No’ to ATM and Debit Card Overdraft Coverage.
If you say ‘Yes’
If you choose to say ‘Yes’, you allow U.S. Bank to authorize and pay ATM and everyday debit card transactions (purchases made with your debit card on a day-to-day basis) that may cause the Available Balance in your account to become negative. If this happens and the negative Available Balance is $50.01 or more, we may charge an Overdraft Paid Fee for each item paid greater than $5.00.
If you say ‘No’
If you choose to say ‘No’, you do not allow U.S. Bank to authorize and pay ATM and everyday debit card transactions into a negative Available Balance. If we do not authorize and pay an overdraft your transaction will be declined and you will not be charged a fee.
In limited circumstances, your ATM or everyday debit card transaction may be processed, resulting in your Available Balance becoming negative.
These situations may include, but are not limited to:
• A debit card transaction is processed for more than the preauthorized amount. For example, we may authorize a purchase amount from a restaurant or a gas station, but the authorized amount may differ from the final charge (Please refer to “Debit Card Transactions” subsection for more information about how these situations are handled.);
• A debit card transaction that obtained an authorization based on a sufficient Available Balance in your account, but is sent to us for payment later when your Available Balance is no longer sufficient to cover the item;
In these situations, you will not be charged an Overdraft Paid Fee.
If you wish to discuss your options or change your account election at any time, contact a local U.S. Bank branch, call U.S. Bank 24-Hour Banking or visit usbank.com. Please be aware it may take up to three business days to implement your request.
U.S. Bank Overdraft Fee Forgiven
All consumer checking accounts (excluding Safe Debit Accounts) are eligible to have Overdraft Paid Fee(s) waived with qualifying deposits (see below). The Overdraft Fee Forgiven period starts the first day your Available Balance becomes negative and you were charged an Overdraft Paid Fee(s). U.S. Bank will review your account for a fee waiver at 11 p.m. ET on the day we charged the Overdraft Paid Fee(s). In the event your Available Balance at the end of the business day is or would be overdrawn by $50.00 or less, we will not charge an Overdraft Paid Fee.
If your Available Balance* at 11 p.m. ET is $0 or more, the Overdraft Paid Fee(s) charged will be waived.
*Excluding the Overdraft Paid Fee(s) and including immediate and same day deposits.
If you have Overdraft Protection and your account becomes overdrawn Overdraft Protection funds will be accessed (and applicable fees charged) before the account is eligible for Overdraft Fee Forgiven.
Deposits that generally will qualify for Overdraft Fee Forgiven include:
• ACH and electronic deposits;
• Cash deposits;
• Wire transfers;
• ATM deposits at U.S. Bank ATM;
• Check deposits in branch;
• Internal transfers from another U.S. Bank account.
Deposits that generally will not qualify for Overdraft Fee Forgiven include:
• Mobile check deposit;
• Extended hold placed on a deposit;
• Deposits into new accounts opened less than 30 days where funds are generally made available the fifth business day after the day of your deposit.
Requested Return:
You may ask us to place your account in Requested Return status. When you select this option, you are automatically choosing to say ‘No’ to ATM and Debit Card Overdraft Coverage (refer to If you say ‘No’ for more details). In addition, we will attempt to return items which would result in an overdraft to your account such as checks, and automatic bill pay transactions.
• Note that when you select Requested Return, you may be charged fees by the merchant or service provider.
• Please understand we will not be able to return all items. If we pay an item, for any reason, you will be charged the applicable Overdraft Paid Fee (with the exception of ATM and everyday debit card transactions). These situations include, but are not limited to:
recurring debit card transactions when a merchant had obtained an authorization for the first instance, but did not obtain a new authorization for subsequent occurrences (for example, a monthly gym membership); or other transactions/adjustments that may be processed in accordance with our Transaction Posting Order resulting in an insufficient Available Balance (Refer to “Transaction Posting Order” section listed within this Agreement). We rely on the merchant to inform us if a debit card transaction is a one-time or a recurring transaction.
If you wish to select Requested Return, contact a local U.S. Bank branch or call U.S. Bank 24-Hour Banking (see last page for phone numbers).
Please be aware it may take up to three business days to implement your request and items may or may not be returned during that time.
Business Options for Checking and Money Market Accounts For Business Checking and Business Money Market accounts, we will authorize and pay overdrafts for all types of transactions at our discretion.
If we pay these transactions into overdraft, we may charge an Overdraft Paid Fee.
Requested Return
You may ask us to place your account in Requested Return status. When choosing this option, we will attempt to return and/or decline items which would result in an overdraft to your account.
• Note that when you select Requested Return, you may be charged fees by the merchant or service provider.
• Please understand we will not be able to return all items. If we pay an item, for any reason, you may be charged an Overdraft Paid Fee.
If you wish to request Requested Return, contact a local U.S. Bank branch or call U.S. Bank 24-Hour Banking (see last page for phone numbers). Please be aware it may take up to three business days to implement your request and items may or may not be returned during that time.
Other sections: While many other sections of this Agreement relate to these issues, these sections are particularly appropriate:
• Setoff (page 16)
• Security Interest in Accounts (page 16)
• Funds Availability: Your Ability to Withdraw Funds - All Accounts (page 18)
• Electronic Fund Transfers for Consumer Customers (page 20) • Limits on Transfers (page 21)
• Electronic Fund Transfers for Business Customers (page 23)
OVERDRAFT PROTECTION PLANS
Consumer Overdraft Protection
U.S. Bank offers Overdraft Protection Plans to help you avoid the inconvenience of having a check returned, and/or a debit card purchase rejected, resulting in the expense of overdraft fees. These Overdraft Protection Plans allow an eligible account to be linked to a U.S. Bank Personal Checking Account(s) (“checking account(s)”) to cover overdraft situations when the Available Balance is insufficient to cover checks presented for payment and/or Available Balance has been reduced due to pending authorized debit card transactions, as specified in subsection “Debit Card Transactions”.
U.S. Bank lets you choose which eligible accounts are linked to your checking account for Overdraft Protection, and the order in which those accounts are accessed to transfer funds to your checking account.
Some eligible accounts (e.g. depository accounts) do not have Overdraft Protection Transfer fees, and if you have deposit and credit accounts linked for Overdraft Protection, the first Overdraft Protection Account determines whether a fee is charged (if any).
You can choose to link up to three eligible U.S. Bank accounts to your personal checking account for Overdraft Protection. Owner(s) who are signers on the checking account must also be signers on the account(s) linked for Overdraft Protection.
Eligible accounts include:
• U.S. Bank Savings Account or Money Market Account
• U.S. Bank Reserve Line of Credit
9 • U.S. Bank Credit Card
• A secondary U.S. Bank Personal Checking Account
• U.S. Bank Personal Line of Credit
• U.S. Bank Home Equity Line of Credit
• Other U.S. Bank Lines of Credit
If you have linked eligible accounts, and the negative Available Balance in your checking account is or would be overdrawn by $5.01 or more, the advance amount will transfer in multiples of $50.00. If the negative Available Balance is or would be $5.00 or less, the amount advanced will be $5.00. The Overdraft Protection Transfer Fee is waived if the transfer is made from a deposit account or the negative Available Balance in your checking account is $50.00 or less.
If the negative Available Balance in your checking account is caused by monthly fees, such as a maintenance fee or statement/image fee only, overdraft protection will not advance and no Overdraft Protection Transfer Fees will apply. (For example, the account is overdrawn due to a Monthly Maintenance Fee, overdraft protection will not advance. If additional transactions post, overdraft protection will advance to cover the negative Available Balance amount and an Overdraft Protection Transfer Fee may be charged.) If the account linked for Overdraft Protection does not have enough funds to cover the overdrawn amount, the current Available Balance will still be transferred to reduce the overdrawn amount.
If there is more than one account linked for Overdraft Protection and the Available Balance of the first linked account is not enough to cover the overdrawn balance, the next linked account will transfer funds in multiples of $50.00 to cover the remaining overdrawn balance. When multiple accounts are linked as Overdraft Protection, the first account funds are transferred from determines the amount of the Overdraft Protection Transfer Fee (if any).
For each day an Overdraft Protection transfer occurs, a Bank fee will be charged to the checking account that received the transfer. (Refer to the Consumer Pricing Information disclosure Overdraft Protection Transfer Fee for fee amount. This disclosure can be obtained by contacting a U.S. Bank branch or calling 800-872-2657.) While no fee will be charged to your U.S. Bank savings account or secondary checking account, U.S. Bank Reserve Line of Credit, U.S. Bank Credit Card, U.S. Bank Personal Line of Credit, or U.S. Bank Home Equity Line of Credit, for any automated advance to cover an overdraft to your associated deposit account, you will incur an interest charge according to the terms of your agreement governing your credit account. Advances on a U.S. Bank Credit Card Overdraft Protection Plan account are subject to the standard cash advance interest rate, as well as the current cash advance fee. Please refer to your U.S. Bank Reserve Line of Credit, U.S. Bank Credit Card, U.S. Bank Personal Line of Credit or U.S. Bank Home Equity Line of Credit for information regarding interest charges.
When the Bank accesses funds from an eligible line of credit or credit card, these types of transfers may be subject to additional charges such as annual fees. In addition, you may be subject to interest that will accrue on the amounts advanced in accordance with your line of credit or cardmember agreement.
Business Banking Overdraft Protection
U.S. Bank offers Overdraft Protection Plans to help you avoid the inconvenience of having a check returned, and/or a debit card purchase rejected, resulting in the expense of overdraft fees. These Overdraft Protection Plans allow an eligible account to be linked to a U.S. Bank Business Checking Account(s) (“checking account(s)”) to cover overdraft situations when the Available Balance is insufficient to cover checks presented for payment and/or Available Balance has been reduced due to pending authorized debit card transactions, as specified in subsection “Debit Card Transactions”.
U.S. Bank lets you choose which eligible accounts are linked to your checking account for overdraft protection. Only one deposit product and one credit product may link to a business checking account. When the checking account has a linked Business Reserve Line of Credit, the system will automatically draw from that account first, which may incur a fee. If the checking account does not have a linked Business Reserve Line of Credit and has both a credit product and a deposit product linked as overdraft protection, the system will draw from the deposit product first, which will not incur a fee. Funds only draw from the credit product (excluding Business Reserve Line of Credit) if the deposit product has insufficient available funds.
The name of the business on the business checking account must match the name of the business on the business credit overdraft protection plan account. The name(s) of the account signer(s) on the business checking account may also be required to match the account signer(s) on the business Overdraft Protection Plan account.
Eligible accounts include:
• U.S. Bank Business Savings or Money Market Account
• A secondary U.S. Bank Business Checking Account
• U.S. Bank Business Reserve Line of Credit
• U.S. Bank Business Credit Cards
• U.S. Bank Cash Flow Manager or Advantage Line
If you have a U.S. Bank Business Savings, Business Money Market account, or secondary U.S. Bank Business Checking account linked as Overdraft Protection, any automatic advances will be in $200.00 increments made to cover the overdraft. Automated transfers from a U.S. Bank deposit account are not assessed Overdraft Protection Transfer Fees.
If you have a U.S. Bank Business Reserve Line of Credit linked as overdraft protection, any automatic advances will be in $200.00 increments made to cover the overdraft. Please refer to your U.S. Bank Business Reserve Line Agreement for information regarding interest charges.
U.S. Bank Business Credit Card linked as overdraft protection, any automatic advances will be in $25.00 increments made to cover the overdraft. Advances on a U.S. Bank Business Credit Card Overdraft Protection Plan account are subject to the standard cash advance interest rate, as well as the current cash advance fee.
When the Bank accesses funds from an eligible line of credit or credit card, these types of transfers may be subject to additional charges such as annual fees. In addition, you may be subject to interest that will accrue on the amounts advanced in accordance with your line of credit or Cardmember Agreement. Please refer to your Cardmember Agreement for information regarding charges and fees.
Each time an overdraft protection transfer from a Business Reserve Line or a U.S. Bank Business Credit Card automatically transfers funds to the checking account, an Overdraft Protection Transfer Fee (daily fee) applies. The transfer fee amount posts as a separate transaction to the checking account.
Refer to the Business Pricing Information or U.S. Bank Business Essentials® Pricing Information disclosure(s) for current fees. This disclosure can be obtained by stopping in a U.S. Bank branch.
If you have a U.S. Bank Cash Flow Manager linked as overdraft protection, any automatic advances will be in $100.00 increments made to cover the overdraft. While no Overdraft Protection Transfer Fee is charged to the Cash Flow Manager account for any automated advance to cover an overdraft to your associated deposit account, you will incur an interest charge according to the terms of your agreement governing your credit account. Please refer to your U.S. Bank Cash Flow Manager agreement for information regarding interest charges.
If the negative Available Balance is caused by a monthly maintenance fee, service fee or statement/image fee only, overdraft protection will not advance and no Overdraft Protection Transfer Fees will apply. (For example, the account is overdrawn due to a Monthly Maintenance fee, overdraft protection will not advance. If additional transactions post, overdraft protection will advance to cover the negative Available Balance amount and an Overdraft Protection Transfer Fee may be charged.) Business Overdraft Protection Agreements
U.S. Bank also offers certain business customers overdraft protection through separate written agreement. The terms of such agreement shall govern those Business Overdraft Protection Plans.
REFUSING PAYMENT ON YOUR CHECKS
You must fill in an amount (in words and numbers) correctly and clearly, and sign your name on checks you write. You should fill in the date and name a payee on your checks. If you don’t name a payee, anyone can cash the check. If you fail to follow these rules, we may refuse to honor your checks.
When a check you write is presented to us by another bank for payment, we will generally accept the endorsements on the check, because if an endorsement is missing or forged, we have rights against the other bank that protect us. When a check of yours comes to us other than through another bank, we might not cash it if we are not comfortable with the endorsements on it or the identity of the person who presents it. This is especially true with an endorsement in the name of a business entity.
We may require anyone who presents a check for payment in person (other than an account owner presenting a check on his or her own account) to:
• pay a fee to cash the check if applicable; and
• give a fingerprint or thumbprint, and identification, as a condition of cashing a check.
If the presenter of the check refuses to comply with these requirements, or complies but later asserts that these requirements infringed on their legal rights, you understand and agree that imposing these requirements will not be considered a “wrongful dishonor” of your checks. 10 FUNDS TRANSFERS
Unless we have entered into a specific written agreement with you that provides otherwise, payment orders you give to us for the transfer of funds out of the account by wire transfer or otherwise, and payment orders we receive for the transfer of funds into the account, will be governed by this section, subject to rights under the Electronic Fund Transfers Act. In addition, your rights and obligations with respect to a payment order, and our rights and obligations, will be governed by (a) any separate written agreement with us; then (b) this section; and then, to the extent not specified in a separate written agreement or this Agreement; (c) by Article 4A of the Uniform Commercial Code (“UCC4A”) as enacted in the state in which you have your account with us.
We reserve the right to refuse to accept any payment order. Payment orders are accepted when they are executed by us. We may process any payment order request (as well as any amendment or cancellation request concerning a payment order) that we believe is transmitted or authorized by you if we act in compliance with a security procedure agreed upon by you and us. Such payment orders will be deemed effective as if made by you, and you will be obligated to pay us in the amount of such orders, even though they are not transmitted or authorized by you. Unless we agree on another security procedure, you agree that we may confirm the authenticity and content of a payment order (among other ways) by placing a telephone call to you. If we cannot reach you, or if the payment order is not confirmed or approved in the manner we require, we may refuse to execute the payment order.
YOU AGREE THAT IF A PAYMENT ORDER OR CANCELLATION
THEREOF IDENTIFIES THE BENEFICIARY BY BOTH NAME AND AN
IDENTIFYING NUMBER, AND THE NAME AND NUMBER IDENTIFY
DIFFERENT PERSONS OR ACCOUNT HOLDERS, EXECUTION AND
PAYMENT TO THE BENEFICIARY OR CANCELLATION MAY BE MADE
SOLELY ON THE BASIS OF THE IDENTIFYING NUMBER. YOU ALSO
AGREE THAT IF A PAYMENT ORDER IDENTIFIES AN INTERMEDIARY BANK OR THE BENEFICIARY’S BANK BY BOTH NAME AND AN
IDENTIFYING NUMBER AND THE NAME AND NUMBER IDENTIFY
DIFFERENT PERSONS, EXECUTION OF THE PAYMENT ORDER
BY ANY BANK MAY BE MADE SOLELY ON THE BASIS OF THE
IDENTIFYING NUMBER.
If we receive a funds transfer into any account you have with us, we are not required to give you any notice of the receipt of the funds transfer.
The funds transfer will appear on your next periodic statement. To confirm the completion of funds transfers, please contact us through U.S. Bank 24-Hour Banking (see last page for phone numbers), usbank. com or the U.S. Bank Mobile App. Prior to the acceptance of an outgoing payment order, the outgoing payment order may be cancelled, but may not be amended or modified, if the beneficiary’s bank is located within the United States of America and the outgoing payment order is to be paid in U.S. dollars. Other outgoing payment orders may not be cancelled, amended or modified. We must receive your cancellation in a reasonable time prior to the time we execute the outgoing payment order. Payment orders sent by Fedwire will be subject to the Federal Reserve’s Regulation J, and payment orders sent via other payment systems will be subject to the rules of those systems. You agree that we may record all telephone conversations and data transmissions received from, made for or made on behalf of you pursuant to or in connection with a payment order.
YOU AGREE THAT IF A PAYMENT ORDER, OR ANY CANCELLATION
OR AUTHORIZATION RELATING THERETO, BUT FOR THE
APPLICABILITY OF THE ELECTRONIC FUND TRANSFERS ACT OF
1978 (AS IN EFFECT FROM TIME TO TIME), CONSTITUTES A PORTION OF A FUNDS TRANSFER AS DEFINED IN UCC4A, ALL ACTIONS AND
DISPUTES CONCERNING SUCH PAYMENT ORDER, CANCELLATION
OR AUTHORIZATION SHALL BE DETERMINED PURSUANT TO
UCC4A AND THIS AGREEMENT TO THE FULL EXTENT PERMITTED
BY LAW. If an outgoing payment order in a foreign currency cannot be completed, the exchange rate that will apply to any refund due you will be the exchange rate in effect at the time on the day the refund is made.
Additional fees may be deducted from a payment order amount by other banks involved in the funds transfer process.
We may route payment at our own discretion for each outgoing wire transfer. A wire transfer is irrevocable once payment has been transmitted to the beneficiary’s bank. At your request, we may request that the beneficiary’s bank return funds previously transferred. However, you acknowledge that the beneficiary’s bank is under no obligation to comply with this request.
WITHDRAWAL RIGHTS, OWNERSHIP OF ACCOUNT, AND
BENEFICIARY DESIGNATION
The following rules govern the ownership and withdrawal rights of deposit accounts with the various titles given to them.
There are two primary issues that these rules control. The first is “withdrawal rights” and the second is “ownership.”
By “withdrawal rights” we mean who has access to the funds in the account for all purposes. These withdrawal rights will control, for example, whose instructions we must follow, whose checks we must pay, and whose withdrawal requests we must honor. These withdrawal rights do not control who actually owns the funds, as between multiple parties to an account.
By “ownership” we generally mean who owns the funds in the account.
In particular, by selecting a particular ownership, you are expressing your intention of how and to whom your interest in the funds in the account should pass in the event of your death.
If you create a type of account, you retain the right to change or close the account to the extent of the withdrawal rights you retain in your own name.
We make no representations as to the appropriateness or effectiveness of any particular ownership or beneficiary designations. Our only responsibility is to permit access to the account as provided by the withdrawal rights. You must consult with your own attorney or financial advisor as to whether and how to effect any change in actual ownership of funds in the account.
Individual Account. This is an account in the name of one person. Such an account is also referred to as a “single ownership” account.
Withdrawal Rights. The holder of such an account is the only person who has the right to withdraw from the account, unless we permit the holder to designate an agent or attorney-in-fact to the account.
Ownership. The holder of such an account is presumed to be the owner. Holding such an account, by itself, creates no additional ownership rights nor survivorship rights (nor does such type of ownership create or extinguish any community property rights). In almost all instances this type of account will pass, on the death of the owner, through the estate of the owner. (You must consult your own estate planner to be sure.)
Agents and “Attorneys-in-Fact.” The owner of this type of account can nominate an authorized signer or attorney-in-fact.
Joint Account - With Survivorship. If your account is opened as a joint account, we will treat it as a joint account with right of survivorship unless our account records demonstrate a different type of ownership. This is an account in the names of two or more natural persons, with the following features:
Withdrawal Rights. Each joint tenant has complete and separate access to the funds and withdrawal rights, and each authorizes the other(s) to endorse for deposit any item payable to the joint tenant.
Upon the death of any joint tenant, any surviving joint tenant will have complete withdrawal rights to the balance of the account. If there is more than one surviving joint tenant, such survivors remain as joint tenants with right of survivorship with the same withdrawal rights provided in this section.
Each joint tenant reserves the right to change the ownership of the account to the extent of that owner’s withdrawal rights.
Ownership. Each joint tenant is presumed to “own” the funds in proportion to that person’s net contribution to the account. Each joint tenant intends upon his or her death that the funds owned by such person will be owned by the survivor. If there is more than one survivor, the “ownership” of the decedent’s funds will be shared equally with such survivors.
Other Titles. In some states, it is advisable to add either “not as tenancy in common” or “not as a tenancy by the entirety” or both to insure the intention described above.
Agents and “Attorneys-in-Fact.” Any joint tenant can nominate an authorized signer or attorney-in-fact who can hold all the same withdrawal and deposit rights as the authorizing owner, except the authorized signer or attorney-in-fact will not be an owner (a joint tenant).
Joint Account with Survivorship - Arizona. A Joint Account with Survivorship in Arizona has a unique feature that will change the “ownership” rights on the death of one of the joint owners if there is more than one surviving joint tenant and one of the surviving joint tenants is the surviving spouse of the deceased joint tenant.
Withdrawal Rights. This rule will not change the withdrawal rights to the account on the death of a joint tenant; it only affects the actual ownership of the account balance, which will only affect the survivors, and will not affect our responsibilities under the account.
Ownership. If two or more parties survive and one is the surviving spouse of the deceased party, the amount to which the deceased party, immediately before death, was beneficially entitled by law belongs to the surviving spouse. If two or more parties survive 11 and none is the spouse of the decedent, the amount to which the deceased party, immediately before death, was beneficially entitled by law belongs to the surviving parties in equal shares, and augments the proportion to which each surviving party, immediately before the deceased party’s death, was beneficially entitled under law, and the right of survivorship continues between the surviving parties.
Tenancy in Common Accounts. A Tenancy in Common account is another form of joint account without the survivorship feature. A Tenancy in Common account is also in the name of two or more individual owners.
Withdrawal Rights. Each joint tenant has complete and separate access to the funds and withdrawal rights, and each authorizes the other(s) to endorse for deposit any item payable to the joint tenant.
Until we receive notice of the death of any joint tenant, any tenant in common will have complete withdrawal rights to the entire account balance.
If more than one tenant in common survives the death of another tenant in common, such survivors remain as tenants in common between them.
Each tenant in common reserves the right to change the ownership of the account to the extent of that owner’s withdrawal rights.
Ownership. Each tenant in common is presumed to “own” the funds in proportion to that person’s net contribution to the account. However, because of the extreme difficulty in determining such proportions over time, you agree that upon the death of one tenant in common, the balance in the account at the time immediately before the death of the tenant in common will be deemed to be owned in equal shares between all tenants in common. After death and our receipt of notice of such death, the decedent’s share will be set aside for the estate of the decedent, and the survivor’s share in the account balance will be at the disposal of the surviving tenant in common.
Other Titles. In some states this account is referred to as Joint Tenancy WITHOUT Right of Survivorship.
Agents and “Attorneys-in-Fact.” Any tenant in common can nominate an authorized signer or attorney-in-fact who can hold all the same withdrawal and deposit rights as the authorizing owner, except the authorized signer or attorney-in-fact will not be an owner (a tenant in common).
Marital Account (Wisconsin). This account is an account established by two persons in Wisconsin who claim to be husband and wife. This account is, for such persons, the same as the Tenancy in Common account described above.
Marital Account with P.O.D. Beneficiaries (Wisconsin). This account is, first, the same as a Wisconsin Marital Account (which is, in turn, the same as a Tenancy in Common account described above).
Withdrawal Rights. During the lives of both parties to the marriage, the withdrawal rights will be the same as for the Marital Account. The beneficiaries have no withdrawal rights until the death of one of the marriage partners.
Ownership. Upon the death of one of the spouses, the surviving spouse owns 50% of the funds on deposit, and the P.O.D. beneficiary named by the deceased party (if that beneficiary is then surviving) owns the other 50%. Each spouse can name his or her own beneficiary.
If there is more than one beneficiary who is named by a party who survives, the shares of those beneficiaries will be equal.
On the death of one of the marriage partners, the account will have to be retitled and beneficiary shares will have to be redeposited or withdrawn.
Pay-on-Death Account. This is an account where one or more persons create the account and name one or more living persons as beneficiaries.
Frequently the account title is A.B. Pay-on-Death to C.D. beneficiary.
Withdrawal Rights. The person who creates this type of account retains complete withdrawal rights in such an account during his or her lifetime and for his or her own benefit. The named beneficiary has no withdrawal rights to the account during the lifetime of the creator of the account. The owner can change or close the account, and change beneficiaries at any time.
On the death of the creator of the account, the beneficiary (on proof of death of the creator and proof of the identity as the named beneficiary), can withdraw the entire account balance. If there is more than one beneficiary who is named and survives the creator, the surviving beneficiaries acquire and can withdraw an equal share with the other surviving beneficiaries, without survivorship rights between beneficiaries. If a beneficiary dies before the creator, neither the beneficiary’s estate nor heirs acquire anything on the death of the owner.
If more than one person creates such an account, then such creators have complete and separate withdrawal rights between them during their joint lives, and the survivor of them will have complete withdrawal rights upon the death of the other creator. Named beneficiaries can withdraw a share of the account balance only upon the death of the last creator and only if such beneficiaries are then alive (and upon proof of the deaths of the creators and their own identity as the named beneficiaries). In effect, if more than one person creates this type of account, with one or more beneficiaries, the account has first all the incidents of a “Joint Account with Survivorship” and only after there is but one joint tenant does the account have the incidents of a “Pay-on-Death” account.
Ownership. The creator of this type of account is presumed to own the funds during his or her lifetime and intends that ownership to pass to the beneficiary only upon his or her death and only if the named beneficiary survives him or her. If there is more than one creator, the ownership between such creators is the same as that between joint tenants with right of survivorship, with the same incidents upon the death of a joint tenant.
If there is more than one beneficiary who is named and survives the creator(s), the creators intend his, her or their ownership rights to pass to the then surviving beneficiaries in equal shares, with no survivorship rights between them.
Other Titles. This type of account has other names such as “Tentative Trust,” “Totten Trust,” “In Trust For” and “Revocable Trust.” In states where one of these trust accounts is recognized, the creators of such accounts will be referred to as a “settlor” or “grantor.” Nevertheless, all the incidents of such an account, the rights of the grantor(s) and beneficiaries are exactly the same as described for “Pay-on-Death” accounts above. Only the names have been changed.
Revocable Trust or Pay-on-Death Account (not subject to the Nonprobate Transfers Law of Missouri)
In Missouri, a Revocable Trust or Pay-on-Death account may include an appendage to its title “not subject to the Nonprobate Transfers Law of Missouri.” This appendage does not change the features of the account as described above for Pay-on-Death accounts.
Registration in Beneficiary Form - Missouri
Adding the acronym LDPS (which stands for lineal descendants, per stirpes) to a Revocable Trust or Pay-on-Death account in Missouri, changes the rights of beneficiaries of such accounts. LDPS designation means that if a named beneficiary of such an account dies before the account owner, then the unnamed lineal descendants of that deceased beneficiary will acquire the share of the deceased beneficiary on the death of the owner per stirpes.
Accounts Established Under the Uniform Transfers to Minors Act or Uniform Gifts to Minors Act (“UTMA/UGMA”)
An account established under a state’s UTMA/UGMA is controlled by a custodian for the use and benefit of a “minor” beneficiary who owns the funds. Only the custodian is authorized to act on the account, however, we may disclose account information to the minor or their authorized representative. If you are the custodian or successor custodian of an account under a state’s UTMA/UGMA, you agree to comply with all applicable laws, including those related to use of the funds. When the minor reaches the age of termination under the applicable UTMA/UGMA law, you must transfer any funds in the account to the minor. If you fail to transfer funds to the minor as required, we may, at our sole discretion, limit transactions on the account, contact the minor for instructions, unless we receive prior written notice and supporting documentation establishing that the minor has not reached the age of termination, or pay remaining funds to the minor. You agree that it is your responsibility as custodian to consult your own legal or tax advisor about the governing state law.
Fiduciary Account
A fiduciary account is an account opened by or taken over by an executor, administrator, personal representative, guardian, conservator, trustee, or other fiduciary in such capacity. Any fiduciary named as a signer on a fiduciary account shall be solely responsible for acting in accordance with the terms of the applicable laws, will, court order or trust instrument establishing and covering the fiduciary relationship, and we are not responsible for examining, or insuring compliance with the provisions of any such law or instrument.
Corporate, Partnership, Limited Liability Company and other Organizational Accounts
These are accounts opened by any business organization or association.
We reserve the right to require the account holder(s) to furnish us with such resolutions, agreements or documents as we may reasonably request to evidence the authority of individuals to act on behalf of the account holder(s). We will honor such an authorization until we receive written notice of change from the governing body of the organization. It 12 is mutually agreed that the power and authority of each person named as authorized to take action with respect to the account shall continue in full force and effect until we receive actual written notice of revocation, whether the same be brought about by dissolution of the account holder or otherwise.
PLEDGES AND SECURITY INTERESTS IN FAVOR OF OTHERS
You cannot give a security interest or pledge your account to someone other than us without first getting our express written consent. We are not required to give consent to a security interest or pledge to someone else.
Unless we agree otherwise in a separate writing a security interest or pledge to someone else must be satisfied or released before any right to withdraw from the account can be exercised, including any right that arises by surviving the death of an owner (for example, a surviving joint tenant or beneficiary of a pay-on-death account).
ACCRUAL OF INTEREST
We will begin to accrue interest on deposits drawn from other banks at the time we get credit for the deposit in the collection process, which is not necessarily the same time as the time we make funds available for withdrawal.
If your account (for example a savings account) earns a variable rate of interest, we can change that rate at any time without notice to you, except as specifically provided in writing in the account disclosure or agreement. If the interest rate for your account(s) or the index or other referenced rate upon which the interest rate for your account(s) is based, is at any time less than zero percent, you agree to pay all amounts of the negative interest or fees which we impose as compensation for the negative interest rate.
You can find out our current rates on accounts that earn interest in our branches, from U.S. Bank 24-Hour Banking, or at usbank.com. The telephone number is at the end of this disclosure.
STOP PAYMENTS
Unless otherwise provided, the rules in this section cover stopping payment of items such as checks and drafts drawn on your account.
Rules for stopping payment on other types of transfers of funds, such as consumer electronic fund transfers, are covered elsewhere in the Electronic Fund Transfers for Consumer Customers section.
Here is what you must do to stop a payment:
ACH Check Conversion
An ACH Check Conversion is a transaction that starts as a paper check that you give to a merchant. The merchant converts the check, using the information on the paper, to send an electronic message to a bank to immediately take the money from your account. The merchant is required to post a notice about ACH Check Conversion in a prominent and conspicuous location at the time of the transaction. You can stop payment on an ACH Check Conversion only if it has not yet been presented by the merchant.
Checks and drafts
If you want to stop payment of a check, you must use the stop-payment tool in online banking or the mobile app, go to a U.S. Bank branch or call U.S. Bank 24-Hour Banking (see last page for phone numbers). Writing to us will take too much time and we will not have time to act on your request before the check is paid. We may need the following information:
1. the account number the check is written on;
2. the dollar amount;
3. the check number.
This information must be exact and correct. If it is not, we will not be responsible if the item is paid.
Who can stop a payment and for how long?
1. Any owner can stop payment of any check on the account whether that owner wrote the check or not (and assuming the item can still be stopped).
2. A stop payment order is effective for 24 months. You must renew it prior to the expiration of the stop payment effective period or the item could get paid. We will not notify you when the stop payment effective period ends. Fees may be assessed for placing a stop payment order.
3. You must give us sufficient notice so that we have a reasonable period of time to act upon your request and verify that the item has not been paid.
Effect of a stop payment
When you stop payment of a check, you may still be obligated to the payee, and the payee may still have the right to collect on the check or the underlying transaction. If we have to defend ourselves for letting you stop payment on a check, you have to protect us by paying our expenses, including our reasonable attorney’s fees.
What if we don’t stop payment?
We cannot stop payment of a check that has already been paid.
If you ask us to stop payment of a check and we pay it anyway, we gain whatever rights the payee has against you. This means, if the check should have been paid, or the payee has the right to collect from you anyway, we can collect from you. Therefore, if we pay an item that should have been stopped, before we recredit your account, you will have to prove to us that by our payment you have suffered a loss and the cause is our failure to stop the payment.
What kinds of checks does this NOT apply to?
This section does not apply to items not drawn on your account, such as teller’s checks, official (cashier’s) checks, and accepted checks (e.g., certified checks). We have no responsibility to honor your request to stop payment of items not drawn on your account. If we agree to stop payment on these items, we may require you to provide us with additional security (for example, a bond or collateral) and you agree to indemnify us for any damages and costs we incur as a result of stopping payment of such items.
Fee
To stop a payment you must pay our fee, the amount of which is disclosed in the pricing information disclosure or agreement for your account.
DORMANT ACCOUNTS AND ESCHEAT
A dormant account is an account that has been inactive. Generally, subject to state law, “inactive” means there has been no deposit, withdrawal or other communication from you about the account for the period of time as follows:
1. after 11 months for a checking account;
2. after 23 months for a savings account
For security reasons, we may refuse a withdrawal or transfer from an account we internally classify as inactive if we cannot reach you in a timely fashion to confirm the transaction’s authorization.
We charge a dormant account fee, unless excluded by account type or prohibited or restricted by state law. The dollar amount and frequency is disclosed in our pricing information disclosure.
If your account has a zero balance, we reserve the right to close it. Any accounts linked as overdraft protection will be de-linked as part of the closure process. Refer to CLOSING YOUR ACCOUNT for additional information.
Escheat is the term that is used to describe the process of transferring an account balance to the state government after an account has been dormant and if our attempts to contact you fail.
The time period after which funds must escheat to the state varies from state to state. Once the funds are transferred to the state, you may be able to recover the funds from the state itself, but not from us.
As permitted by the state, we may deduct the cost of required due diligence from the balance of your account. This due diligence may include first class and certified mailings or public notices about your account’s pending escheatment, as required by state law.
FDIC PART 370 RECORD-KEEPING
Record-keeping for All Accounts
FDIC Rule Part 370 may require us to collect certain information from you in order to accurately calculate FDIC insurance coverage for your deposit account. Failure to provide this information to us could result in the delay of deposit insurance payments
Special Provisions for Third-Party Accounts
If you have opened a deposit account on behalf of the beneficial owner(s) of the funds in the account (for example as an agent, nominee, guardian, executor, custodian or funds held in some other capacity for the benefit of others), those beneficial owners may be eligible for “pass-through” insurance from the FDIC. This means the account could qualify for more than the standard maximum deposit insurance amount (currently $250,000 per depositor in the same ownership capacity). If the account has transactional features (such as check writing capabilities or the use of debit cards), as defined in 12 C.F.R. 370.2(j), you as the account holder must be able to provide a record of the interests of the beneficial owner(s) 13 in accordance with 12 C.F.R. 370.5(a) and with the FDIC’s requirements as specified below.
The FDIC has published a Deposit Broker’s Processing Guide that describes the process to follow and the information you will need to provide in the event U.S. Bank fails. That information can be accessed on the FDIC’s website at https://www.fdic.gov/deposit/deposits/brokers/.
In addition, the FDIC published an Addendum to the Deposit Broker’s Processing Guide, section VIII, which is a good resource to understand the FDIC’s alternative recordkeeping requirements for pass-through insurance and is accessible at the website above. The Addendum sets forth the expectations of the FDIC for pass-through insurance coverage of any deposit accounts, including those with transactional features.
The Addendum will provide information regarding the records you keep on the beneficial owners of the funds, identifying information for those owners, and the format in which to provide the records to the FDIC upon failure of U.S. Bank. You must be able to provide this information in a timely manner in order to receive payment for the insured amount of passthrough deposit insurance coverage as soon as possible. You have an opportunity to validate the capability to deliver the required information in the appropriate format so that a timely calculation of deposit insurance coverage can be made. Please contact your account representative for details on the validation process.
You agree to cooperate fully with us and the FDIC in connection with determining the insured status of funds in such accounts at any time. In the event of failure of U.S. Bank, you agree to provide the FDIC with the information described above in the required format within 24 hours of the failure of U.S. Bank. As soon as the FDIC is appointed, a hold may be placed on your account so that the FDIC can conduct the deposit insurance determination; that hold will not be released until the FDIC obtains the necessary data to enable the FDIC to calculate the deposit insurance. You understand and agree that your failure to provide the necessary data to the FDIC may result in a delay in receipt of insured funds and legal claims against you from the beneficial owners of the funds in the account. If you do not provide the required data, your account may be held or frozen until the information is received, which could delay when the beneficial owners could receive funds. Notwithstanding other provisions in this Agreement, this section survives after a receiver is appointed for us, and the FDIC is considered a third-party beneficiary of this section.
CONSUMER ELECTRONIC CHECK RE-PRESENTMENT
If you write a check on a personal account that we return unpaid because of insufficient or uncollected funds, the depositor of the check or the depositor’s bank may resend (“re-present”) the check to us electronically.
That is, the depositor or the depositor’s bank may send us an electronic instruction (“electronic re-presented check”) to charge your account in the amount of the check.
Our Handling of Electronic Re-presented Checks. If we receive an electronic re-presented check from the depositor or the depositor’s bank, we will pay or return the electronic re-presented check as if the original paper check were being re-presented to us. The section titled “Electronic Fund Transfers” will not apply to any electronic re-presented check.
Ineligible or Unauthorized Electronic Re-presented Checks. For an electronic re-presented check to be charged to your account, all of the following must be true:
• the electronic re-presented check must relate to a paper check drawn on a personal account that we returned unpaid because of insufficient or uncollected funds;
• the paper check must not have contained an unauthorized signature or an alteration and must not have been a counterfeit;
• you must not have placed a stop payment on the paper check after we returned it unpaid but before it was collected electronically; • the paper check must have been less than $2,500.00 in amount; • the paper check must have been dated 180 days or less before the date on which the electronic re-presented check is sent to us; • the electronic re-presented check must be for the face amount of the paper check only and may not include any collection fee charged by the depositor, the depositor’s bank, or a collection agency; • the payee of the paper check must have given you notice that, if we returned the paper check unpaid because of insufficient or uncollected funds, the fee could be collected electronically; and • the electronic re-presented check must have been sent to us no more than twice after the first time we returned the paper check, or no more than once after the second time we returned the paper check.
You may have the right to reverse any ineligible or unauthorized electronic re-presented check that we charged to your account. If you want to reverse an electronic re-presented check because you placed a stop payment on the paper check to which the electronic re-presented check relates after we returned the paper check unpaid but before it was collected electronically, you must notify us within 15 days after we send or make available to you the periodic statement that reflects payment of that electronic re-presented check. If you want to reverse an electronic re-presented check for any other reason, you must give us an ACH Claim Form within 15 days after we send or make available to you the periodic statement that reflects payment of that electronic re-presented check.
An ACH Claim Form may be obtained by contacting U.S. Bank 24- Hour Banking or a local U.S. Bank branch. In your claim form, you must declare and swear under oath that the electronic re-presented check was ineligible or unauthorized. If we receive your notice or claim form within the 15-day period, we will recredit your account with the amount of the charge but will not be responsible for any other damages associated with the transaction.
Stop Payment. If you wish to stop payment of any electronic re- presented check, you must follow the procedures contained in the rules for stopping payment of checks, not the procedures contained in the rules for stopping payment on electronic loan or bill payments.
CHECKING ACCOUNTS AND “SUBACCOUNTS”
For regulatory accounting purposes we may designate two sub-accounts for a checking account; one sub-account is a savings (non-transaction) account and the other is a checking account. Checks and other third-party transfers are paid from the checking (transaction) account. As necessary, we transfer funds from the savings sub-account to the checking subaccount automatically. You cannot access the savings sub-account directly. This accounting device does not affect either the appearance or the operation of your checking account in any way.
TELEPHONE TRANSFERS
If you have more than one account with us, including a credit card or open-end loan account, you can transfer funds between your accounts by telephone. You will need to have a PIN, and enter your account numbers, and other qualifications, but if you meet them,
1. you can transfer funds between your accounts by calling our 24-hour phone banking (see last page of this disclosure for phone numbers), and
2. telephone transfers may be made by the same account owners/ signers and usually under the same conditions as generally applicable to withdrawals made in writing or by other means.
A transfer made by telephone is not immediately completed. It may take as long as one business day for us to verify the transaction and make the transfer. Consumer customers are assigned or can choose a PIN when requesting an ATM or Debit Card. Consumer customers without a debit card or ATM card can request a PIN by speaking to a 24-Hour Banking representative at 800-872-2657. A form is sent by 24-Hour Banking to the customer for completion and must be mailed back to the address on the form. A confirmation letter is mailed to the customer once the PIN has been established.
REQUIRED SIGNATURES
Signature Comparison. We process certain items mechanically, based on information encoded on checks and other transaction items, and we are not required to examine items and debits drawn on your account. We collect your signature to obtain your agreement to the rules we establish for your account, but this does not create any responsibility on our part to verify signatures on items and other charges to your account.
Number of Signatures. You agree that if you
1. require the signatures of two or more persons to open an account;
2. have an account in which more than one signature is required to complete a transaction;
3. authorize someone to transact some but not all transactions on your account;
4. authorize someone to transact business on your account for limited purposes and no others; or
5. use checks that require two or more signatures,
such arrangements are strictly between you and the other person(s) you authorize, whether we have notice of your arrangement (including in a form we provide you) or not. You cannot assert a claim against us for permitting a transaction so long as any one of the owners or authorized persons sign or initiate the transaction, even if a person exercises more authority than you have given.
CHANGES TO OUR AGREEMENT WITH YOU
We may change any term of this Agreement or add a new one as long as it does not violate applicable law. We will give you reasonable notice in writing, electronically, or by any other method permitted by law. You agree that in any event 30 days written or electronic notice prior to the 14 effective date of any change is reasonable. Any notice to one account owner constitutes notice to all account owners.
If we notify you that the terms of your account have changed, and you continue to have your account after the effective date of the change, you have agreed to the new terms. For consumer customers, rules governing changes in interest rates are provided for separately in the Truth-inSavings disclosure(s) or in another document.
If your account was originally with a prior financial institution, the terms of this Agreement supersede any prior agreements, representations, or understandings you may have had with that prior financial institution.
In the event that we change the Resolution of Disputes by Arbitration provision set forth herein, any such changes will not apply to (1) pending arbitration, or (2) arbitrations commenced under the rules of the arbitration forum and the terms of this Agreement, between the time that reasonable notice is sent as set forth in this section and the effective date of any change.
CLOSING YOUR ACCOUNT
If you intend to close your account:
This section does not apply to an active time deposit (or certificate of deposit) account.
If you intend to close your account with us, you should tell us; simply transferring all the money in your account and reducing your account balance to $0.00 is insufficient notice and may result in additional fees charged to your account.
If you close your account,
1. you are still responsible for transactions you arranged for, including those that arrive after the account is closed;
2. you should pay special attention to pre-authorized electronic deposits to your account and payments from that account; you should reroute the deposits to another account and make other arrangements for the payments, with us and the other institutions involved;
3. you should not close your account until most of the transactions you arranged for have been cleared, and you should leave enough funds to clear them and the fees that might be due; and
4. if it is an interest-bearing account, accrued interest will not be paid.
If your account is closed and you have a debit or ATM card associated with the account, you will need to either:
1. close the associated card; or
2. select a new account to be linked to your card.
If you do not designate a new account, the bank will automatically assign your ATM/debit card to a new account from any eligible account where you are an owner/ joint owner. If there are no eligible accounts the card will be closed.
How the account closure works:
For consumer checking, savings and money market accounts, when you request an account closure, your account will be placed in a ‘pending closure’ status for a period of 10 business days. During this 10 business day ‘pending closure’ period, we will allow pending deposits to be cleared and/or post to your account and we will allow pending debit card transactions that you authorized prior to initiating closure to be cleared and/or post to your account. Your debit card will be declined and transactions will no longer be approved when the account is in ‘pending closure’ status. Once your account is fully closed, transactions will not be allowed to post to the account except under limited circumstances.
For example, transactions may be processed after closure if necessary for fraud investigations, transaction dispute claims, merchant credits, or deposit adjustments due to errors.
We can close your account:
We can close your account, ATM or debit card for any reason or for no reason at all. If we close your account, we will send you notice within ten days after closing and/or indicate the closure on your next account statement. We will send the collected account balance to you at your last known address as reflected in our account records. At our sole discretion we may, but are not required to, withhold a sufficient sum to cover any outstanding items and likely fees. If we withhold any money for such contingencies, we will refund that to you after we are satisfied that no further withholding is necessary.
If your account is closed for any reason, you authorize us to re-open your account to process any transactions authorized prior to account closure, or for other purposes consistent with applicable law.
As part of the account closure, any accounts linked to the Checking Account as overdraft protection will be de-linked. If a U.S. Bank Reserve Line of Credit is linked as overdraft protection to a Checking Account that is closed for any reason, the Reserve Line will also be closed, and you must repay any remaining balance according to the monthly payment coupon included in your future periodic statements.
STATEMENTS AND NOTICES
Statements. We will periodically make available to you a paper or eStatement of your checking or savings account. These statements show the transactions that occurred in the time period covered by the statement.
If you elect not to review your statement, you are still responsible for having access to the information provided in the statement. At our option, a statement will not be produced in any statement period in which service charges, fees, reversals, refunds or interest are the only transactions on the account. When other activity exists, such as a deposit or withdrawal, a statement will be available to you and will include all transactions which have occurred since the last statement (this includes any service charges, fees, reversals, refunds or interest that occurred since the last available statement). At a minimum, all accounts will receive an annual statement.
Regardless of how frequently a statement is made available, monthly service charges and other account fees will continue to be deducted from the account. In addition, applicable interest will continue to accrue and be paid periodically as disclosed in the product pricing information disclosure.
Combined Statements. If you have multiple accounts with us, we may at any time automatically combine your accounts on a single, easy-to-read monthly statement. We will only combine statements for accounts that have common ownership (meaning at least one owner is common across multiple accounts) and the same address and Social Security Number.
If you prefer to continue receiving separate statements, please contact U.S. Bank within 30 days of receiving your combined statement.
You may reach us by calling one of the numbers listed on the back of this disclosure, sending a letter to U.S. Bank, 60 Livingston Ave, EP-MN-WS5D, St. Paul, MN 55107, or sending a secured email by logging on to usbank.com and selecting “Contact Us”. Please include the following information in your correspondence: your name, account number(s) and the reference code “CMBSTMN.”
Your address. You must give us your correct address, and if you move or change your address, you must keep us advised. You are responsible for messages and statements we send to the most recent address you have given us. We may also update your address in our records without a request from you if we receive an address change notice from the U.S.
Postal Service or if we receive updated address information from our mail services vendor.
Multiple owners. Periodic statements and notices that we make available to one owner or agent/signer of an account will be the same as providing statements and notices to all owners of an account. You agree to designate the primary address for purposes of receiving statements and other account correspondence. Each account owner agrees that we may send any legal notice or legal process affecting any owner or the account to the primary address designated on the account. Each account owner agrees to notify the other owners of any legal notice received at that address pertaining to such other account owner or to the account.
Your Duty to Examine Your Statement. As used in this section, the term “problem” means any error, alteration, counterfeit check, or unauthorized transaction (including, but not limited to, forged or missing signatures and excluding consumer electronic banking transactions) related to your account. Because you are in the best position to discover any problem, you agree to promptly examine your statement and report to us any problem on or related to your statement within 30 calendar days after we mail the statement (or make the statement available) to you. You agree that we will not be responsible for:
1. any problem that you do not report to us in writing within a reasonable time not to exceed 30 calendar days after we mail the statement (or make the statement available) to you;
2. subsequent problems or fraudulent items occurring after 30 days of the first occurrence; if you fail to report the problem within 30 days of the first occurrence reported on your statement;
3. results from a forgery, counterfeit or alteration so clever that a reasonable person cannot detect it (for example, unauthorized checks made with your facsimile or other mechanical signature device or that look to an average person as if they contain an authorized signature); or
4. as otherwise provided by law or regulation.
You agree to waive any rights to recovery you may have against us if you do not provide notice to us in the manner and within the time required by this Agreement. You may not start a legal action against us because of any problem unless: (a) you have given us the above notice and (b) the legal action begins within one year after we send or make your statement available to you. You agree that if the problem is the result of a series of events (for example, multiple forgeries over a period of time) then 15 the date the first event occurred is the date from which the period to bring a legal action will begin to run. If you make a claim against us in connection with a problem, we reserve the right to conduct a reasonable investigation before re-crediting your account and you agree to fully cooperate in such investigation. Within 30 days of the date of mailing, you agree to complete and return an affidavit of unauthorized paper debit on the form we provide you along with any other information we may request. You further agree to file a police report if we request. If you refuse to sign such an affidavit or fail to return the affidavit and other requested documentation within 30 days of the date we mail it to you, you agree that we may consider the matter resolved and reverse any provisional credit provided. At our sole discretion, we may, but are not obligated to, provisionally credit your account during the investigation for all or a portion of the amount claimed. Any provisional credit to your account may be reversed if you fail to fully cooperate in our investigation or, if as a result of our investigation, we determine that the charge to your account was proper. You agree to pay any fees assessed or accrued against your account during the investigation or that may arise upon reversal of any provisional credit.
For problems involving an electronic fund transfer, please refer to the Electronic Fund Transfers sections of this disclosure.
This time period for you to examine your statement and report problems to us are without regard to our level of care or the commercial reasonableness of our practices, and without regard to whether cancelled checks are supplied to you.
Contact us if you do not receive your regular statement. If this is a business account, you agree that you will have at least two people review your statements, notices, and returned checks, or in the alternative, the person who reviews these will be someone who does not have authority to transact business on the account.
RETURN OF CANCELLED CHECKS
For some specific consumer and business checking accounts we currently offer two plans, with respect to the return of cancelled checks:
1. Check Safekeeping: paid checks that are not returned - your statement will show the check number, the amount, and the date it is paid; or
2. Image Checks on Statement: paid checks that are not returned - your statement will include a reduced image of the front of the check or front and back of a check in addition to the number, amount and date the check is paid as part of the statement; (See the CHECK 21 section; the images sent with your statement are not substitute checks themselves, but some may be images of substitute checks.) .
Option 1 is what you will get unless you specifically ask for option 2.
The checking accounts for which these options are available vary. The products and our fee structures for each option are disclosed in the Consumer Pricing Information, Business Pricing Information or U.S. Bank Business Essentials® Pricing Information disclosure(s) or agreement for your account.
(All disclosures can be obtained by stopping in a U.S. Bank branch or for the Consumer Pricing Information only, call 800-872-2657 to request a copy.)
If you take option 1 or 2, and you have need for a specific paper check, we can provide a substitute copy to you upon request.
CHECKS, CHECKING ACCOUNTS AND SAVINGS
ACCOUNTS WITH DRAFT ACCESS
NOW Accounts: Transaction accounts are NOW Accounts on which you can write negotiable orders of withdrawal. Negotiable orders of withdrawal look and function like checks, and the rules governing checks also apply to them. Depending on account features, NOW Accounts may or may not bear interest. Although we have no intention of exercising this right, federal regulations require that we reserve the right to require at least seven days’ written notice prior to withdrawal or transfer of any funds on your NOW Account.
SAVINGS ACCOUNTS
By the term “savings” account we mean an account that earns interest but has no specific maturity date or required notice period. (A maturity date or a required notice period is a characteristic of a time deposit or certificate of deposit.)
We will provide you with a periodic (quarterly, monthly, annually based on your account type and account activity) statement for your savings account and you must examine your statement for errors or forgeries just as you should for your checking account.
Savings Account Transaction Policy
We reserve the right to require seven days’ notice before any withdrawal from any savings account, though it is very unlikely we will require such notice and, if we do, we will require it for all savings accounts.
TIME DEPOSITS
A time deposit is more commonly known as a certificate of deposit or CD. With a time deposit, you agree to keep your deposit with us for a specified period of time, or agree to give a required advance notice prior to withdrawal, and we agree to pay you interest at an agreed upon rate, or an agreed formula for a rate, for that period of time.
We are not required to permit an early withdrawal from a time deposit, and if we do, it will be on condition that you pay an early withdrawal fee and penalty. How we charge the early withdrawal penalty will be disclosed to you when you open such an account.
All the features of your time deposit will be disclosed to you when you open the account. You can call 24-Hour Banking, visit a local U.S. Bank branch, or go to usbank.com to find out what CD products and terms we offer.
If your time deposit, including single maturity, automatically renewable or Individual Retirement Account CDs, remains inactive for a pre-determined period of time, as required by state, and our attempts to contact you fail we may transfer or escheat your funds to the state as required.
Escheat is the term that is used to describe the process of transferring an account balance to the state government after an account has been dormant for a pre-determined period of time, as required by state, and if our attempts to contact you fail.
The time period after which funds must escheat to the state varies from state to state. Once the funds are transferred to the state, you may be able to recover the funds from the state itself, but not from us.
As permitted by the state, we may deduct the cost of required due diligence from the balance of your account. This due diligence may include first class and certified mailings or public notices about your account’s pending escheatment, as required by state law.
LIMIT OF LIABILITY
We process millions of transactions every day, with the help of complicated technology and other companies. If we make a mistake and charged you more than we should have, or failed to give you credit you were due, we will correct the error, so long as you give us sufficient and timely notice and an opportunity to fix it. See the section above titled Statements and Notices, for your duty to pay attention to your statement and report any errors. For errors covered by the Electronic Fund Transfers Act refer to the section Electronic Fund Transfers for Consumer Customers.
You agree – to the extent allowed by law – to waive any indirect, incidental, special, consequential and punitive damages for errors or mistakes we make in good faith. This includes damages that might otherwise be available in a tort or contract action, and whether the consequences are foreseeable or not.
ELECTRONIC MESSAGES AND AGREEMENTS
Many customers use the Internet and email as their primary form of communication with us. If you provide us with an email address, you agree that we may communicate with you via email and you further agree to notify us of any changes to your email address.
You agree that we may make agreements with you by electronic means.
Your authorization and consent to such an agreement, or your delivery of instructions, may be made by use of certain numbers, codes, marks, signs, personal identification numbers (PINs), public or private keys or other means, acceptable to you and to us, to establish your identity and acceptance of the electronic communications. All electronic communications that meet these requirements will be deemed to be valid and authentic and you intend and agree that those electronic communications will be given the same legal effect as written paper communications signed by you. You agree that electronic copies of communications are valid and you will not contest the validity of the originals or copies, absent proof of altered data or tampering.
LEVIES, GARNISHMENTS AND OTHER LEGAL PROCESS
We are a national bank with many locations. You agree that for purposes of this part, we may treat your funds as existing wherever your account is located, as outlined in the Applicable Law section. You understand and agree that a creditor or governmental agency may attach your account by service of legal process on any of our locations, at any site designated by us for acceptance of service of process, on any appointed agent of ours, or any other method authorized by law, court rule, or regulation. We may accept and comply with legal process served by any means, whether in person, by mail, facsimile, electronic transmission, or other means. 16 If we are served with a garnishment, levy, execution, or other legal process of apparent validity (together referred to as “legal process”), you understand and agree that we will pay all amounts in the account, or release information about your account, in satisfaction of the legal process and in compliance with our understanding of applicable law.
If your account is a joint account, for purposes of responding to legal process, we will consider each joint owner to have an undivided interest in the entire account. Therefore, you agree we may pay all amounts in the account in satisfaction of any legal process, even if it attaches to the interest of fewer than all the account owners. You agree that we may process a levy, garnishment, or other legal process served on us even if we do not process it on the same day it was received. If you believe your funds are exempt from legal process, or otherwise should not be subject to the legal process (for example, if you own funds and the legal process applies to another joint owner, you believe the court, garnishor, or levying authority lacks jurisdiction over you or the property, or you believe the garnishment or levy names the wrong party as garnishee), you agree that it may be your responsibility to raise any defense to the legal process against the party who originated the legal process or seek reimbursement from a joint owner.
If we are served with any legal process that tries to attach or in some way prevent you from freely using your funds, you give us the right, but we have no obligation, to hold any portion of the funds during any time necessary to determine to our satisfaction who has the legal right to the funds in your account. If we are not able to determine whether the funds in your account are subject to the legal process, you agree that we may deposit the funds with any court which we deem to have jurisdiction over us or your account and ask that court to determine to whom the funds belong. You agree to reimburse us for our expenses, including attorney’s fees and expenses, arising out of the service of the legal process on us and our response to it.
If the legal process requires us to release information about one or more accounts for which combined statements are provided, we may release the entire combined statement even if other accounts on the statement are not covered by the legal process.
All legal process is subject to our rights of setoff and our security interest in your account. We will assess a service fee against your account for any legal process served on us regardless of whether the process is subsequently revoked, vacated, or released. Unless expressly prohibited by law, we will set off or enforce our security interest against your account for such fee prior to our honoring the legal process. We will not be liable to you if an attachment, a hold, or the payment of our fee from your account leaves insufficient funds to cover outstanding items.
RESOLVING ACCOUNT DISPUTES AND ADVERSE CLAIMS
If a dispute arises concerning your account (including, for example, a dispute over who is an authorized signer or owner), or if we believe we have a claim against you or we have or receive a claim by a third party (including our affiliates) to all or a portion of the property (including money, certificates of deposit, securities and other investment property, financial assets, etc.) in your account, or if we have concerns regarding your account or the use of your account, we have the right to hold any portion of the property in your account until the dispute, claim, or concern is resolved to our satisfaction. We will not be liable to you if the hold we place on your account leaves insufficient funds to cover outstanding items. For purposes of this section, “account” includes any account you have with us or any of our affiliates (including, without limitation, agency, custody, safekeeping, brokerage, and revocable trust accounts). If the dispute, claim or concern remains unresolved, you agree that we may at our option deposit the property in your account with a court and ask the court to determine to whom the property belongs. If we deposit your property with a court, you agree that we may charge your account for our costs, including attorney’s fees and expenses. For disputes covered by the Electronic Fund Transfers Act refer to the section Electronic Fund Transfers for Consumer Customers.
INCREASED COSTS TO MAINTAIN YOUR ACCOUNT
If your account becomes subject to a receivership, court order or bankruptcy, and we are required to implement changes as to your account that increase our costs to maintain your account (for example, a requirement for us to pledge property to secure your account above the amount of any deposit insurance on your account), you agree to reimburse us for the additional costs and any expenses incurred by us (including legal fees) to implement such required changes as to your account.
CONSUMER REPORT DISPUTES
We may report information about your deposit accounts to Consumer Reporting Agencies (CRA). As a result, this may prevent you from obtaining services at other financial institutions. If you believe we have inaccurately reported information to a CRA, you may submit a dispute by calling 844-624-8230 or by writing to:
U.S. Bank Attn: CBDH Management, P. O. Box 3447, Oshkosh, WI 54903-3447. In order for us to assist you with your dispute, you must provide: your name, address and phone number; the account number; the specific information you are disputing; the explanation of why it is incorrect; and any supporting documentation (e.g., affidavit of identity theft), if applicable.
ACCOUNT INFORMATION
Our Privacy Pledge discloses the information we share with other entities for marketing purposes. We also may be required to provide information about you and your account when and as required or permitted by law for other purposes, such as, for example:
1. reporting of interest you earn to federal and state tax authorities;
2. reporting of cash transactions that are at reportable limits;
3. investigating and reporting of transactions that we reasonably determine to be suspicious; and
4. responding to subpoenas, court orders, or government investigations.
SETOFF
We have the right under the law to set off amounts you owe us against your accounts with us. For purposes of this section, “account” includes any account you have with us or any of our divisions, departments, and affiliates (including, without limitation, agency, custody, safekeeping, securities, investment, brokerage, and revocable trust accounts) and “you” includes, without limitation, your revocable trust, any partnership in which you are a general partner, any prior or successor entity by way of an entity conversion, and any other series of your series limited liability company (as applicable). In addition to this legal right, you give us and our affiliates the contractual right to apply, without demand or prior notice, all or part of the property (including money, certificates of deposit, securities and other investment property, financial assets, etc.) in your accounts, against any debt any one or more of you owe us or our affiliates. If your account is a joint account, you agree we may consider each joint owner to have an undivided interest in the entire account, so we may exercise our contractual right of setoff against the entire account.
This includes, for example, debts that now exist and debts that you may incur later, your obligations under a guaranty, and also includes all fees you owe us or our affiliates. We will not be liable to you if enforcing our rights of setoff against your account(s) leaves insufficient funds to cover outstanding items or other obligations. You agree to hold us harmless from any claim arising as the result of our enforcement of our rights of setoff in, or enforcement of our rights of setoff against, your account(s).
Our contractual right of setoff does not apply:
1. to an account that is an IRA or other tax-deferred retirement account;
2. to a debt that is created by a consumer credit transaction under a credit card plan (but this does not affect our rights under any consensual security interest); or
3. if our records demonstrate to our satisfaction that the right of withdrawal that a depositor/debtor has with us only arises in a representative capacity (for example, only as an authorized signer, attorney-in-fact or a fiduciary) for someone else.
This right of setoff is in addition to any security interest that we or an affiliate of ours might have in your deposit account.
SECURITY INTEREST IN ACCOUNTS
You grant to us and our affiliates, a security interest in all your accounts with us, and all property in your accounts (including money, certificates of deposit, securities and other investment property, financial assets, etc.), to secure any amount you owe us or our divisions, department, and affiliates, now or in the future. This includes, for example, debts that now exist and debts that you may incur later, your obligations under a guaranty, and also includes all fees you owe us or our affiliates. For purposes of this section, “account” includes any account you have with us or any of our affiliates (including, without limitation, agency, custody, safekeeping, securities, investment, brokerage, and revocable trust accounts) and “you” includes, without limitation, your revocable trust, any partnership in which you are a general partner, any prior or successor entity by way of an entity conversion, and any other series of your series limited liability company (as applicable). In order to provide us and our affiliates with control over your account and all property in your account for purposes of perfecting the security interest granted above, you agree that we shall comply with any and all order, notices, requests and instructions originated by us or any of our affiliates directing disposition of the funds in your account without any further consent from you, even if such instructions are contrary to your instructions or demands or result in our dishonoring items which are presented for payment.
If your account is a joint account, you agree we may consider each joint owner to have an undivided interest in the entire account, so we may 17 exercise our security interest against the entire account. We may enforce our security interest without demand or prior notice to you. You agree, for purposes of this security interest, that our affiliates may comply with any instructions we give them regarding your accounts held with them, without further consent. You also agree that we may comply with any instructions regarding your accounts that we receive from our affiliates pursuant to a security interest they have in your accounts with us. We will not be liable to you if enforcing our security interest against your account(s) leaves insufficient funds to cover outstanding items or other obligations.
You agree to hold us harmless from any claim arising as the result of our security interest in, or enforcement of our security interest against, your account(s).
SECURITY
It is your responsibility to protect the account numbers, including card numbers and electronic access devices (e.g., an ATM card, debit card, username and password or PIN) we provide to you for your account(s).
If you furnish your access device and grant actual authority to make transfers to another person (a family member, coworker or employee, for example) who then exceeds that authority, you are liable for the transfers unless we have been notified that transfers by that person are no longer authorized.
Your account number can also be used to electronically remove money from your account. If you provide your account number in response to a telephone solicitation for the purpose of making a transfer (to purchase a service or merchandise, for example), payment can be made from your account even though you did not contact us directly and order the payment.
You must also take precaution in safeguarding your blank checks.
Notify us at once if you believe your checks have been lost or stolen. As between you and us, if you are negligent in safeguarding your checks, you must bear the loss entirely yourself or share the loss with us (we may have to share some of the loss if we failed to use ordinary care and if we substantially contributed to the loss).
We reserve the right to place a hold on your account if we suspect irregular, fraudulent, unlawful or other unauthorized activity involved with your account. We may attempt to notify you of such a hold, but we are not required to provide notice prior to placing the hold. You agree that we may maintain such a hold until all claims against you or us to the funds held in your account, whether civil or criminal in nature, have been resolved fully in our sole satisfaction.
RESOLUTION OF DISPUTES BY ARBITRATION
PLEASE READ THIS PROVISION CAREFULLY. UNDER THIS
PROVISION, YOU WAIVE YOUR RIGHTS TO TRY ANY COVERED
CLAIM IN COURT BEFORE A JUDGE OR JURY AND TO BRING OR
PARTICIPATE IN ANY CLASS OR OTHER REPRESENTATIVE ACTION.
The following provision applies to any claim, cause of action, proceeding, or any other dispute between you, on the one hand, and us, our respective parents, subsidiaries, affiliates, agents, employees, predecessors-in-interest, personal representatives, heirs and/or successors, and assigns, on the other hand (each a “Claim” as further defined under the heading “Claims Covered by Arbitration”), including all questions of law or fact related thereto.
Agreement to Arbitrate: Either you or we may elect in writing, and without the consent of the other, to arbitrate all Claims covered by this provision.
Claims Covered By Arbitration: Claims subject to our agreement to arbitrate shall include all of the following: (1) Claims related to or arising out of this account Agreement, or any prior or later versions of this account Agreement as well as any changes to the terms of this account Agreement; (2) Claims related to or arising out of any aspect of any relationship between us that is governed by this account Agreement, whether based in contract, tort, statute, regulation, or any other legal theory; (3) Claims related to your use of any of the digital services we make available to you through our website, online banking platforms, and mobile apps; and (4) Claims that relate to the formation, construction, scope, applicability, or enforceability of this arbitration provision. Claims include Claims that arose before we entered into this account Agreement (such as Claims related to advertising) and after termination of this account Agreement.
Arbitration: The party initiating arbitration must initiate such arbitration with the American Arbitration Association (“AAA”). If AAA is for any reason unable to serve, then the parties may agree to a comparable substitute organization. If the parties are unable to agree, then a court of competent jurisdiction shall appoint a comparable substitute organization.
Small Claims Jurisdiction: If a party’s Claim is within the jurisdiction of the small claims court where you reside, either party may at any time choose to take the Claim to that court instead of arbitration.
The party may take the Claim to small claims court without first filing in arbitration or, after a case is filed in arbitration, a party may send written notice to the opposing party and the arbitration forum that it wants the Claim decided by a small claims court. After receiving the notice, the arbitration forum shall administratively close the case.
Arbitration Procedure: The arbitration shall be decided by a single neutral arbitrator. Except as modified by this Resolution of Disputes by Arbitration provision, AAA shall administer arbitration in accordance with AAA’s Consumer Arbitration Rules. AAA’s Rules may be obtained from www.adr.org or 800-778-7879 (toll free).
At the time of initiating arbitration, the party seeking to initiate arbitration must provide the other party with the demand for arbitration and identify the account holder(s) and account(s) at issue, including the account number(s), and provide a short and plain statement of the claims asserted and the relief sought. The parties agree that Federal Rule of Civil Procedure 11 shall apply to the arbitration proceeding, including that the claims and relief sought are neither frivolous nor brought for an improper purpose.
The arbitrator will decide the dispute in accordance with the terms of our account Agreement and applicable substantive law, including the Federal Arbitration Act and applicable statutes of limitation.
The arbitrator shall honor claims of privilege recognized at law. The arbitrator may award damages or other relief (including injunctive relief) available under applicable law, including relief contemplated under Federal Rule of Civil Procedure 11. The arbitrator will not have the authority to award relief to, or against, any person or entity who is not a party to the arbitration. The arbitrator will take reasonable steps to protect customer account information and other proprietary or confidential information. Any arbitration hearing shall take place in the federal judicial district that includes your home address, unless you and we agree in writing to a different location or the arbitrator so orders. If all Claims are for $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an inperson hearing in accordance with AAA’s rules.
At your or our request, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. The arbitrator’s award shall be final and binding, subject to judicial review only to the extent allowed under the Federal Arbitration Act. You or we may seek to have the award vacated or confirmed and entered as a judgment in any court having jurisdiction.
No Class Action or Joinder of Parties: You and we agree that any Claim brought in arbitration will be brought on an individual basis only. You and we agree that no class action, private attorney general, or other representative claims may be pursued in arbitration, nor may such action be pursued in court if either you or we elect arbitration. Unless mutually agreed to by you and us, Claims of two or more persons may not be joined, consolidated, or otherwise brought together in the same arbitration (unless those persons are joint account owners or beneficiaries on your account and/or related accounts, or parties to a single transaction or related transaction). If under applicable law a claim, remedy or request for relief cannot be compelled to arbitration, then that claim, remedy or request for relief shall be severed and may be brought in a court of competent jurisdiction under this Agreement after arbitration and all appeals are concluded. The remaining claims, remedies or requests for relief shall be submitted to arbitration consistent with the terms of this provision. If this specific paragraph is determined by the arbitrator to be unenforceable, then this entire provision shall be null and void .
Arbitration Costs: The parties will be responsible for the costs of arbitration as set forth in the rules of the applicable arbitration forum and subject to applicable law. To the extent allowed by applicable law, our agreements, and the rules of the applicable arbitration forum, the arbitrator may award arbitration costs and attorneys’ fees to the prevailing party. Otherwise, each party will pay its own attorney, expert and witness fees.
Applicable Law: You and we agree that you and we are participating in transactions that involve interstate commerce and that this provision and any resulting arbitration are governed by the Federal Arbitration Act. To the extent state law applies, the laws of the state governing your account relationship apply. No state statute pertaining to arbitration shall apply.
Severability: Except as this provision otherwise provides, if any part of this provision is deemed to be invalid or unenforceable by the arbitrator, that part will be severed from the remainder of this provision and the remainder of this provision will be enforced.
18 ATTORNEY’S FEES
Where used, “attorney’s fees” includes our attorney’s fees, court costs, collection costs, and all related costs and expenses. Notwithstanding any provision in this Agreement to the contrary, any provision for attorney’s fees in this Agreement shall not be enforceable in any dispute governed by the laws of California or Oregon.
LITIGATION CLASS ACTION WAIVER
To the extent a Claim is not submitted to arbitration for any reason, you and we agree that any Claim filed in court will be brought on an individual basis only. You and we agree not to participate in any class action, private attorney general action, or other representative action for any Claim filed in court by any party.
FUNDS AVAILABILITY: YOUR ABILITY TO
WITHDRAW FUNDS – ALL ACCOUNTS
This funds availability policy applies to deposits into a checking or savings account made at a branch or ATM. This policy does not apply to deposits made using a remote deposit capture service (like our mobile check deposit service). Please see the Digital Services Agreement to learn more about the funds availability policy applicable to deposits made through a mobile or other electronic device.
Some sections of this disclosure apply to all accounts and all customers.
There are special sections for New Accounts, Commercial Accounts, Wealth Management Accounts and Retail Consumer and Business Accounts. We will make that clear in the section headings.
Funds “availability” means your ability to withdraw funds from your account, whether those withdrawals are to be in cash, by check, automatic payment, or any other method we offer you for access to your account.
If deposited funds are not “available” to you on a given day, you may not withdraw the funds in cash and we may not use the funds to pay items that you have written or honor other withdrawals you request. If we pay items that you have written or honor other withdrawals before funds are available to you, we may charge a fee for this. Please review the product pricing information disclosure for information regarding overdraft fees associated with your accounts.
Please remember that even after the item has “cleared,” we have made funds available to you, and you have withdrawn the funds, you are still responsible for items you deposit that are returned to us unpaid and for any other problems involving your deposit. See our Returned Deposited Items For Business Accounts Only section.
DETERMINING THE AVAILABILITY OF A DEPOSIT – ALL
ACCOUNTS
The day funds become available is determined by counting business days from the day of your deposit. Every day is a business day except Saturdays, Sundays, and federal holidays. If you make a deposit in person at a branch on a business day we are open, we will consider that day to be the day of your deposit for purposes of calculating when your funds will become available. However, if you make a deposit at a time or on a day we are not open, we will consider that the deposit was made on the next business day we are open.
If a deposit is made after 8:00 p.m. (local time at the ATM location) or on a day we are not open, we will consider the deposit to be made on the next business day we are open.
Deposits you send by mail are considered deposited on the business day it arrives at the bank. In all cases, availability of any deposit assumes that a requested withdrawal will not overdraw the account.
IMMEDIATE AVAILABILITY – ALL ACCOUNTS
The following types of deposits will usually be available for withdrawal immediately under normal circumstances:
• Cash (if deposited in person to an employee of ours); • Electronic direct deposits;
• Wire transfers; and
• The first $225.00 from the total of all other deposits made on any given day.
Cash and wire transfer deposits are subject to the Special Rules for New Accounts and the $225.00 availability is subject to the rule in the section titled Longer Delays May Apply.
LONGER DELAYS MAY APPLY
Government Checks, Cashier’s Checks, and Other Types of Special Checks. If you make a deposit of one of the following items in person to one of our employees, our policy is to make the funds from those deposits available no later than the first business day after the day of deposit:
• State and local government checks that are payable to you; • Cashier’s, certified, and teller’s checks that are payable to you; and • Federal Reserve Checks, Federal Home Loan Checks, and U.S. Postal Money orders that are payable to you.
If you do not make your deposit in person to an employee of the bank (for example, if you mail us the deposit), funds from these deposits may be available no later than the second business day after the day of deposit.
However, we may delay funds for a longer period of time, see section titled Longer Delays May Apply – Safeguard Exceptions.
Large Deposits. If you deposit checks totaling more than $5,525.00, in the aggregate, on any one day, then the first $5,525.00 of your total deposit(s) will be available on the first business day after the day of your deposit(s).
The excess amount over $5,525.00 will be available on the fifth business day after the day of your deposit(s).
Case-by-Case Delays. In some cases, we will not make all of the funds that you deposit available to you as provided above. Depending on the type of check that you deposit, funds may not be available until the second business day after the day of your deposit. The first $225.00 of your deposit, however, will be available no later than the first business day after the day of deposit, and usually immediately.
If we are not going to make all of the funds from your deposit available on the first business day, we will notify you at the time you make your deposit. We will also tell you when the funds will be available. If your deposit is not made directly to one of our employees (including a deposit made at an ATM) or if we decide to take this action after you have left the premises, we will mail you the notice by the day after we receive your deposit.
If you will need the funds from a deposit right away, you should ask us when the funds will be available.
Safeguard Exceptions. In addition, funds you deposit by check may be delayed for a longer period under the following circumstances:
• We believe a check you deposit will not be paid.
• You deposit checks totaling more than $5,525.00 on any one day. • You redeposit a check that has been returned unpaid.
• You have overdrawn your account repeatedly in the last six months. • There is an emergency, such as failure of computer or communications equipment.
We will notify you if we delay your ability to withdraw funds for any of these reasons, and we will tell you when the funds will be available. They will generally be available no later than the seventh business day after the day of your deposit.
RETAIL CONSUMER, BUSINESS
AND COMMERCIAL ACCOUNTS
Our general availability policy for these accounts is to make funds available to you on the first business day after the day of deposit. We generally make some portion of a day’s deposits available for withdrawal immediately. See the previous section for the types and amounts of deposits that are available immediately.
WEALTH MANAGEMENT ACCOUNTS
Our general availability policy for Private Client Accounts is to make funds you deposit available to you immediately. This immediate availability policy includes all deposits at any ATM. The section above titled Longer Delays May Apply also applies to your accounts. If we impose a delay as provided in that section, then the sections titled Cashing Checks and Other Accounts may also apply.
DEPOSITS AT AUTOMATED TELLER MACHINES – RETAIL
CONSUMER, BUSINESS AND COMMERCIAL ACCOUNTS
Our Machines. If you make a deposit at a deposit-accepting ATM identified as ours with the U.S. Bank name, your deposit will generally be available on the first business day after the day of deposit. However, in certain circumstances, and at U.S. Bank’s discretion, the funds may not be available until the second business day after the day of deposit.
Partner ATMs. U.S. Bank has established alliances to expand ATM convenience. These partner ATMs display the U.S. Bank logo and are included in the definition of a U.S. Bank ATM. However, these ATMs generally do not accept deposits. If we permit a deposit at a partner ATM, your deposit will not be available until the fifth business day after the day of deposit.
Other Machines. Generally, deposits at an ATM that is not identified as ours with the U.S. Bank name are not permitted. If we permit a deposit at an ATM that is not identified as ours with the U.S. Bank name, your 19 deposit will not be available until the fifth business day after the day of deposit.
SPECIAL RULES FOR NEW ACCOUNTS – RETAIL
CONSUMER AND BUSINESS ACCOUNTS
If you are a new customer, the following special rules will apply during the first 30 days your account is open.
Funds from electronic direct deposits and deposits of cash and wire transfers to your account will be available on the day we receive the deposit. The first $5,525.00 of a day’s total deposits of cashier’s, certified, teller’s, traveler’s, on-us checks (checks drawn on U.S. Bank), and federal, state and local government checks will be available on the first business day after the day of your deposit if the deposit meets certain conditions.
For example, the checks must be payable to you (and you may have to use a special deposit slip). The excess amount over $5,525.00 will be available on the fifth business day after the day of your deposit. If your deposit of these checks (other than a U.S. Treasury check) is not made in person to one of our employees, the first $5,525.00 will not be available until the second business day after the day of your deposit.
Funds from all other check deposits will generally be available on the fifth business day after the day of your deposit. In certain instances, we may hold funds from other check deposits for longer than five business days. For example, if we receive a check that falls within the Safeguard Exception description above, we may delay funds for up to seven business days. If we do so, we will provide you with a hold notice at the time of deposit or when we learn that we will hold the funds from the deposit.
CASHING CHECKS
If we cash a check for you that is drawn on another bank, we may withhold the availability of a corresponding amount of funds that are already in your account. Those funds will be available at the time funds from the check we cashed would have been available if you had deposited it.
OTHER ACCOUNTS
If we accept for deposit a check that is drawn on another bank, we may make funds from the deposit available for withdrawal immediately but delay your availability to withdraw a corresponding amount of funds that you have on deposit in another account with us. The funds in the other account would then not be available for withdrawal until the day the deposited item would have been available, which will usually be the first business day after the day of deposit.
ADDITIONAL TERMS FOR BUSINESS
ACCOUNTS
All other sections of this Agreement apply to consumer and business accounts alike, (except when a rule specifically says it will apply to consumers). The following sections apply to accounts used primarily for business purposes.
UNLAWFUL INTERNET GAMBLING AND OTHER ILLEGAL
TRANSACTIONS
You agree that you, or anyone acting on your behalf, will not use your account, access device or banking relationship with us to facilitate illegal transactions such as those prohibited by the Unlawful Internet Gambling Act of 2006, or otherwise violate any law, rule or regulation applicable to you. If we identify a suspected illegal transaction, we may block such transactions, and further we may close your account or terminate our banking relationship with you.
DEPOSIT OF PRE-AUTHORIZED DRAFTS
A pre-authorized draft is an arrangement whereby you get authority from a person (a customer, usually) to access a deposit account owned by that person to pay a debt that person owes you. You deposit these “drafts” into a deposit account with us, and we collect them from your customers, who may have accounts with us or other banks. (These “drafts” are checks you create based on information your customer provides you, such as the customer’s name and account number, and the express permission your customer gave you to draw on his account.)
When you deposit these pre-authorized drafts, you make the following agreements and warranties:
1. You have express, verifiable and binding authorization from your customer to access his, her or its account for the amount you ask us to collect;
2. You will keep the proof of your authorization in retrievable form for not less than two years from: (a) the date of the authorization of a one-time draft; or (b) from the date of revocation of the authorization of recurring drafts. You agree to provide us with such proof upon our request;
3. We may reverse any credit given to you for any draft deposited to your account and returned to us regardless of when it is returned or the reason for the return. We may take funds in your account to pay the amount you owe us, and if there are insufficient funds in your account, you will still owe us the remaining balance.
EARNINGS CREDIT
Fees for services used by you may be assessed in full to your accounts or may be offset through account analysis by applying earnings credit to your service charges to determine a single monthly net service charge.
Your earnings credit rate is established by us and will change from time to time. For business accounts, the variable earnings credit rate may be zero or a negative rate. If the earnings credit rate for any of your account(s) or the index or other referenced rate upon which the earnings credit rate for your account(s) is based is at any time less than zero percent, you agree to pay all amounts of the negative earnings credit or fees which we impose as compensation for the negative earnings credit rate. Your net service charge could be zero if your earnings credit equals or exceeds your total charges in a given month. If your earnings credit is not sufficient to offset the amount due hereunder, you agree to pay such amounts to us upon demand.
WAIVER OF NOTIFICATION OF REDEPOSITED CHECKS
When you deposit checks to your account, you have a right to be notified whenever a check you deposit is returned unpaid. We offer a plan (to businesses who elect it) whereby we will automatically redeposit checks returned unpaid due to insufficient funds. To simplify collection of these items, you give up this right to notification for those items we redeposit. If these items are returned unpaid a second time, you will receive standard notification.
We may withhold the availability of funds represented by a redeposited check. We will notify you of such delay.
FACSIMILE SIGNATURES
You may wish to use a facsimile signature stamp or other mechanical signature device to sign checks or other orders relating to your accounts.
If you do, we will, without contacting you, debit your account for items bearing an imprint that looks substantially like your authorized mechanical signature, whether or not such items bear the actual facsimile signature stamp. You agree to notify us and give us a sample imprint if you plan to use such a device. If you do not give us a sample, this section still applies to your use of the device. You are responsible for the security of any mechanical signature device. We will not be responsible for payment of unauthorized items bearing an imprint from, or similar to, your authorized mechanical signature.
DEPOSITS
Truncation, Substitute Checks, and Other Check Images: If you truncate an original check and create a substitute check or other replacement document, or other paper or electronic image of the original check, you warrant that no one will be asked to make payment on the original check, a substitute check or any other electronic or paper image, if the payment obligation relating to the original check has already been paid.
You also warrant that any substitute check(s) you create conforms to the legal requirements and generally accepted specifications for substitute checks. You agree to retain the original check in conformance with the time requirements as outlined in your remote deposit capture agreement with us. You agree to indemnify us for any loss we may incur as a result of any truncated check transaction you initiate. We can refuse to accept substitute checks that have not previously been warranted by a bank or other financial institution in conformance with the Check 21 Act. Unless specifically stated in a separate agreement between you and us, we do not have to accept any other electronic or paper image of an original check.
Deposit Preparation, Sorting, and Endorsements: You agree to properly prepare, sort, and endorse all deposits according to requirements specified in any applicable user guides and Federal Regulation CC. We require that you include the external processing code of “6” in Position 44 of the MICR line for all remotely created checks, and we reserve the right to dishonor any remotely created check that does not meet the requirement. You agree to indemnify us for any loss we incur that results from your failure to comply with these requirements.
Requalification: If you elect to have another bank or entity receive and process all of your returned checks, such other bank’s endorsement may be obscured by our depository bank endorsement. You understand and agree that any other endorsement placed on your checks that identify another bank as the depository bank or the bank to which checks should be returned may result in illegible or double endorsements, which may delay the return of your checks. You agree we shall not be liable for any such delays.
20 Business Account Cash Deposits: We reserve the right to require business customers to prepare their cash using a dual pocket deposit bag that meets our specifications. At our discretion, we may process such deposits either at the branch where the deposit is made or at a cash vault location. If the deposit bag is sent to a cash vault location for processing, you will be provided with provisional credit based on the amount stated on your deposit ticket. You agree that the cash vault location count of the deposit amount will be determinative and that we may revoke all or part of the provisional credit based on such count of the deposit amount for up to ten (10) calendar days after deposit at the branch.
FRAUD PREVENTION MEASURES FOR BUSINESS
ACCOUNTS
We offer certain products and services, such as “positive pay,” and account blocks and filters that are designed to detect or deter fraud. Failure to use such services could substantially increase the likelihood of fraud. If you fail to implement any of these products or services, or if you fail to follow these or other precautions reasonable for your type of account or circumstances, you agree that you will be precluded from asserting any claims against us for paying any unauthorized, altered, counterfeit or other fraudulent item that such product, service or precaution was designed to detect or deter, and we will not be required to re-credit your account or otherwise have any liability for paying such items.
CUSTOMER SEGREGATED ACCOUNTS. Notwithstanding anything
to the contrary in this Agreement or any other agreement, we will maintain all money designated as client money—by broker-dealers, future commission merchants, or derivatives clearing organizations—in customer segregated accounts in accordance with acknowledgement letters required by applicable SEC and CFTC rules and regulations.
ELECTRONIC FUND TRANSFERS FOR
CONSUMER CUSTOMERS
This section applies to payment orders and electronic funds transfers described below in the section titled Types of Transactions. This section does not apply to electronic fund transfers initiated using online and mobile services (“Digital Services”). When you enroll in Digital Services, we will provide you with the U.S. Bank Digital Services Agreement that governs the electronic fund transfer services we make available on our Digital Services platforms.
If you have any questions regarding electronic fund transfers or believe that an unauthorized transaction has occurred, please call U.S. Bank 24-Hour Banking or U.S. Bank Fraud Liaison Center (unauthorized transactions) (see last page for phone numbers), visit a local U.S. Bank branch or write to:
U.S. Bank 24-Hour Banking
EP-MN-WS5D
60 Livingston Ave.
St. Paul, MN 55107
Please read this disclosure carefully because it tells you your rights and obligations for the transactions listed. You should keep this notice for future reference.
TYPES OF TRANSACTIONS
These are the types of electronic fund transfers covered by this Agreement.
Electronic Fund Transfers Initiated by Third Parties. You may authorize a third party to initiate electronic fund transfers between your account and the third party’s account. These transfers to make or receive payment may be one-time occurrences or may recur as directed by you.
These transfers may use the Automated Clearing House (ACH) or other payments network. Your authorization to the third party to make these transfers can occur in a number of ways. In all cases, these third-party transfers will require you to provide the third party with your account number and bank information. Thus, you should only provide your bank and account number information (whether over the phone, the Internet, or via some other method) to trusted third parties whom you have authorized to initiate these electronic fund transfers. Examples of these transfers include, but are not limited to:
Direct Deposits. You can arrange for direct deposits to your checking or savings account(s).
Preauthorized Payments. You can make arrangements directly with your third party billers to pay certain recurring bills from your checking or savings account(s).
Electronic check conversion. You may authorize a merchant or other payee to make a one-time electronic payment from your checking account using information from your check to pay for purchases or pay bills.
Electronic returned check charge. You may authorize a merchant or other payee to initiate an electronic fund transfer to collect a charge in the event a check is returned for insufficient funds.
Expanded Account Access
What it is. Any card or PIN (personal identification number) can be used to access up to five checking, savings, line of credit and credit card account(s) held in the same name at U.S. Bank or any of its bank affiliates; and any account you open with us and our affiliates may be accessed by your card or PIN. “Access” means use of a card or account number and PIN to conduct a transaction or obtain information at ATMs, over the telephone, or any other available method. If the card or PIN is for a joint account, that card or PIN can be used to access all the accounts linked to the card or PIN account, whether joint or individual. Expanded Account Access is also applicable to your Digital Services.
The “cards” that can get Expanded Account Access. All U.S. Bank Debit Cards and ATM cards (excluding prepaid cards), and all U.S. Bank-issued Credit Cards (including, but not limited to, co-branded credit cards, and all credit lines issued through U.S. Bank and U.S. Bank affiliates).
Fees and Charges for Expanded Account Access. There are no additional fees or charges just for Expanded Account Access, but fees applicable to each applicable account will continue to apply in accordance with the terms of the applicable account agreements. The fees and terms for each of your accounts will be as disclosed in the Consumer Pricing Information disclosure. (This document can be obtained by contacting a U.S. Bank branch or calling 800-872-2657.)
The fees and terms for your personal credit cards and lines of credit are disclosed in the applicable cardmember agreement.
How to Cancel. You can visit a branch or call the U.S. Bank 24-Hour Banking number at any time to cancel Expanded Account Access. If you cancel Expanded Account Access for any account, that account will not be accessible by any card or PIN other than the card or PIN specifically designated for that account.
Account Access at Automated Teller Machines
You can access up to five checking, five savings, and five line(s) of credit or credit card accounts at U.S. Bank ATMs through all your cards held in the same name (excluding prepaid cards).
You may perform the following transactions at ATMs:
• Make cash withdrawals from your checking and savings accounts associated with your card. Cash denominations vary by ATM. • Get cash advances from your credit card account using your U.S. Bank Debit Card or ATM card. (Refer to your cardmember agreement for any cash advance fees and finance charges that may apply.)
• Deposit funds to checking and savings accounts associated with your card. Cash deposits made at a U.S. Bank ATM are credited to your account the same business day. Checks deposited before 8 p.m. local time are posted the same day. Checks deposited after 8 p.m. local time will typically be processed and posted to the account the next business day.
• Transfer funds from your account(s) associated with your card. • Make payments to credit card or line of credit accounts from a deposit account associated with your card.
• Check the current balance of your checking, savings, credit card and line of credit accounts associated with your card.
• Request a statement showing your most recent deposit account transactions. (Refer to the Consumer Pricing Information disclosure regarding any fees for purchasing statements at ATMs. This disclosure can be obtained by contacting a U.S. Bank branch or calling 800-872-2657.)
• Change your ATM or debit card PIN.
• Make certain charitable contributions from a deposit account associated with your card.
• You may access your Home Equity Line of Credit or Personal Line of Credit for balance inquiries and making a payment to the respective line of credit at the ATM.
Some of these transactions are not available at all ATMs.
For customers with a Debit or ATM card that have accessed a Home Equity Line of Credit or a Personal Line of Credit through the expanded card access feature, cash withdrawals/advances and transferring from the Home Equity Line of Credit or Personal Line of Credit is not allowed.
Purchases at Merchants
You may use any of your U.S. Bank Debit Cards to make purchases at merchants that accept Visa® debit cards or make money transfers using your card (through a third party). You may use your U.S. Bank ATM Card and any of your U.S. Bank Debit Cards to make purchases by entering your 21 PIN at participating merchants. You may also get cash from a merchant, if the merchant permits. Purchases made with your card will result in debits to your “primary” checking account. These transactions will be itemized on your monthly statement, including the merchant name, location, the date of purchase and the amount of the purchase.
Partial Debit Card Transactions
Some merchants may be enrolled in Visa’s Partial Authorization service.
This means that if you chose ‘No’ to ATM and Debit Card Overdraft Coverage, your transaction may be approved for only part of your total purchase amount. This occurs when you do not have a sufficient Available Balance, necessary to pay for the entire transaction, at the time of the purchase. Additionally, funds from your designated account(s) linked for Overdraft Protection (if applicable) may be considered when determining the amount that is authorized.
For example, if you attempt a $30.00 transaction when your account has an Available Balance of $20.00, your purchase may be approved for $20.00 instead of the entire transaction being declined.
Virtual Debit Card
You can easily access your U.S. Bank debit card virtually through online banking and the mobile app for immediate use or add it to your mobile wallet. Please note, one-time passcode verification will be required to show or copy the card information. If you open a new debit card, it will be delivered in the mail with the same card number, a new expiration date and CVV2 (the three-digit number on the back of the card). The mailed card will require activation. If your virtual card was set up for any one-time or recurring payments, you will need to update the CVV2 and expiration date.
Other Electronic Transactions
In addition to transactions initiated by using your U.S. Bank Debit Card, there are other electronic banking transactions that you may arrange through your account. These include:
• Telephone activated transfers of funds from your accounts with us to other accounts with us or to third parties. These include but are not limited to transfers made by telephone or text.
• Automatic transfer of funds between checking and savings accounts. • Automatic periodic payments to third parties or us from checking or savings accounts (for example, monthly mortgage payments, installment loan payments, insurance payments, utility payments). • Direct deposit to checking or savings accounts (for example, payroll checks, social security payments).
• Electronic check conversions from your checking account using a blank, partial or fully completed personal check at merchant locations.
• Payments made to your account through your U.S. Bank Debit Card. • You can also use any of your U.S. Bank Debit Cards to obtain a cash advance from your checking account at any Visa® member bank anywhere in the world.
LIMITS ON TRANSFERS
New Accounts
Generally, you cannot make deposits at a non-U.S. Bank ATM. If we permit a deposit at an ATM that is not identified as ours with the U.S. Bank name, your deposit will not be available until the fifth business day after the day of deposit.
Security
For security reasons, there are limitations on the transactions that you may perform with any of your U.S. Bank Debit Cards or U.S. Bank ATM Cards per day. There are limitations on the number of transactions that can be performed per day and the limits may vary. For security reasons we do not disclose these limits. There are limitations on the dollar amount of cash withdrawals at ATMs and/or cash that you receive from merchants over the amount of your purchase. There are also limitations on the total dollar amount of purchases at merchants and/or cash advances at Visa® member banks you may perform during each 24-hour period beginning at 4:30 p.m. Central Time. Our standard transaction limits for ATM cards are $300.00 per day for cash withdrawals and $1,000.00 per day for purchases. Our standard transaction limits for debit cards are $500.00 per day for cash withdrawals and $1,000.00 per day for purchases and/ or cash advances at banks. Our standard money transfer transaction limits for sending or receiving money through your U.S. Bank Debit Card is $10,000.00 per day. We may change these limitations based on periodic risk assessments and we reserve the right to make such changes without notice to you. Transfer limits are also subject to temporary reductions to protect the security of customer accounts or transfer systems.
Debit Card Transactions
When you use your U.S. Bank Debit Card (Debit Card) for payment, the merchant requests U.S. Bank to authorize the transaction amount. We rely on the merchant to inform us if a debit card transaction is a one-time or a recurring transaction. At the time of the request, we authorize (promise to pay) or decline the merchant’s request. If we authorize (promise to pay) we will reduce your Available Balance by the amount of the merchant’s authorization request. Some merchants (e.g., hotels, restaurants, gas stations, car rental agencies) request an authorization that is an estimated amount of the anticipated purchase instead of the full purchase amount.
As a result, the reduction of your Available Balance may be less or greater than the final debit card transaction amount presented for payment. It is important to note that your Available Balance may change between the time a debit card transaction is authorized and when the debit card transaction is presented for payment.
Debit card authorizations will be reflected as pending transactions and/or will reduce your Available Balance from the time we receive the authorization until the merchant presents the item for payment. If the debit card authorization has not been presented for payment within seven business days, it may be removed from your pending transactions and your Available Balance may no longer be reduced by the authorization amount. Due to prior authorization (promise to pay), if the debit card transaction is presented for payment at a later date we will pay the item regardless of your Available Balance.
If any debit card transaction results in a negative Available Balance at the time it is presented for payment—even if your Available Balance was positive at the time the debit card transaction was authorized—you may be charged an Overdraft Paid Fee. For more information on Available Balance please see the section titled INSUFFICIENT FUNDS AND OVERDRAFTS.
Please know, it is your responsibility to ensure your account has a sufficient Available Balance to cover all transactions you conduct. We recommend keeping a record of your balance and deducting every transaction at the time you initiate it.
FEES
We will charge you fees for electronic fund transfers in accordance with the information found in our Consumer Pricing Information disclosure. (This disclosure can be obtained by contacting a U.S. Bank branch or calling 800- 872- 2657.) The fees may be changed at any time, subject to our giving you any notice required by law.
ATM Transaction Fee. U.S. Bank will assess this fee for each ATM Transaction (withdrawal, balance inquiry, denied transaction, funds transfer or deposit) conducted at the Non-U.S. Bank ATM. Non-U.S. Bank ATMs are defined as any ATM that does not display the U.S. Bank logo in any manner, physically on the ATM or digitally on the screen.
ATM Surcharge. Non-U.S. Bank ATM owners may apply a surcharge fee on ATM transactions at their ATMs.
U.S. Bank participates in MoneyPass®, an ATM surcharge free network.
To find MoneyPass ATM locations, select “visit the MoneyPass locator” at the bottom of our ATM locator search results to be taken to the MoneyPass website. If you use an ATM that uses the MoneyPass® Network and are charged a surcharge fee, please contact us at 800-USBANKS (872-2657) for a refund of the surcharge fee.
USING YOUR CARD FOR INTERNATIONAL TRANSACTIONS
You may be able to use your U.S. Bank Debit Card or ATM card for retail purchases with international merchants, for international cash advances and all transactions performed at international ATMs utilizing Visa’s PLUS network. The PLUS network is owned by Visa, and they maintain a locator function on their website. This is not a U.S. Bank sponsored or affiliated website and we have no control over the results. Refer to our Consumer Pricing Information disclosure for fee information. (This disclosure can be obtained by contacting a U.S. Bank branch or calling 800- 872- 2657.) We may block transactions in certain foreign countries.
Call us at 800- 872- 2657 for more information. Some merchant and ATM transactions, even if you and/or the merchant or ATM are located in the United States, are considered international transactions under the applicable network rules, in which case we will add International Processing Fees to those transactions.
U.S. Bank does not control how these merchants, ATMs and transactions are classified for this purpose. If the transaction requires a currency conversion, the exchange rate in effect when processed may differ from the rate in effect on the date of the transaction or the date of the posting to your Account.
Transactions processed through the Visa® system will be converted according to the applicable rules established by Visa®. The foreign currency transaction will be converted to U.S. Dollars by multiplying the amount of the foreign currency times (a) a rate selected by Visa® 22 from the range of rates available in wholesale currency markets for the applicable central processing date, which rate may vary from the rate Visa® itself receives, or (b) the government-mandated rate in effect for the applicable central processing date. For transactions processed through other networks, the international currency transaction will be converted by that network in accordance with their rules.
Additional fees may apply. If you need to contact us about your card while outside of the United States, call us collect at 503-401-9991.
ADVISORY AGAINST ILLEGAL USE
You agree not to use your card(s) for illegal gambling or any other illegal purpose. Display of a payment card logo by, for example, an online merchant does not necessarily mean that transactions are lawful in all jurisdictions in which you may be located; therefore, we reserve the right to decline all online (Internet) gambling transactions.
DOCUMENTATION
Terminal transfers. You may get a receipt at the time you make any transfer to or from your account using automated teller machines or point-of-sale terminals.
Pre-authorized credits. If you have arranged to have direct deposits made to your account at least once every 60 days from the same person or company, you can call U.S. Bank 24-Hour Banking, log in to the U.S.
Bank Mobile App or visit our online banking site at usbank.com to find out whether or not the deposit has been made.
Periodic statements. You will get a monthly account statement unless there are no transfers in a particular month. In any case, you will get the statement at least quarterly for an account to or from which you have arranged for electronic access. In the event your account has become inactive as defined in the section titled Dormant Accounts and Escheat (refer to page 12) and you have had no electronic activity, you will receive an annual statement.
PREAUTHORIZED PAYMENTS
If you have arranged for automatic periodic payments to be deducted from your checking or savings account and these payments vary in amount, you will be notified by the person you are going to pay ten calendar days prior to the payment date of the amount to be deducted. If the date upon which your payment is scheduled to be deducted changes, the person you are going to pay will notify you seven calendar days prior to the new scheduled date. To confirm the completion of automatic transfers, payments and/or direct deposits, please contact U.S. Bank 24-Hour Banking, or log in to your account using our Digital Services.
Right to Stop Payment of Preauthorized Transfers
To stop a preauthorized electronic payment or transfer, please call U.S. Bank 24-Hour Banking (see last page for phone numbers) or initiate a stop payment request using Digital Services. You must notify the bank in time for us to receive your request and to be able to act upon it, which in the case of these electronic payments, is at least three business days before the transfer is scheduled to occur. We may also require you to put your request in writing and forward it to us within 14 days after you call.
If you order us to stop one of these payments at least 3 business days before the transfer is scheduled, and we do not do so, we will be liable for your losses or damages.
OUR LIABILITY
Liability for failure to make transfers. If we do not complete a transfer to or from your account on time or in the correct amount according to our agreement with you, we will be liable for your losses or damages.
However, there are some exceptions. We will not be liable, for instance:
1. If, through no fault of ours, you do not have enough money in your account to make the transfer.
2. If you have an overdraft line and the transfer would go over the credit limit.
3. If the automated teller machine where you are making the transfer does not have enough cash.
4. If the terminal or system was not working properly and you knew about the breakdown when you started the transfer.
5. If circumstances beyond our control (such as fire or flood) prevent the transfer, despite reasonable precautions that we have taken.
6. There may be other rules/limitations stated in our agreement(s) with you that excuse our failure to make a requested transfer (for example, the monthly limit on certain transfers out of nontransaction savings accounts; refer to Savings Accounts, Withdrawal section on page 15 for additional details).
Authorized Transactions
We assume that all transactions performed with your U.S. Bank ATM Card or any of your U.S. Bank Debit Cards and/or your personal identification number (PIN) are authorized unless you promptly notify us to the contrary. If you intentionally provide another person with the means and authority to perform electronic banking transactions using your account, any resulting transactions will be treated as if they were performed and authorized by you. Such treatment will continue until you notify U.S. Bank Fraud Liaison Center (see page 22 that the other person is no longer authorized to use your card and/or PIN (in which case the card and PIN will have to be deactivated).
UNAUTHORIZED TRANSACTIONS AND LOST OR STOLEN
CARDS
An unauthorized transaction is one that another person conducts without your permission and from which you receive no benefit.
In order to avoid unauthorized transactions, please observe the following basic precautions:
• Do not keep your U.S. Bank ATM Card or U.S. Bank Debit Card and personal identification number (PIN) together. Do not write your PIN on your card.
• Do not provide your card or reveal your PIN to another person. • Notify U.S. Bank Fraud Liaison Center or any U.S. Bank branch of the loss, theft or unauthorized use of your card or PIN.
U.S. Bank Fraud Liaison Center
877-595-6256
We reserve the right to cancel, block, and not renew your access device for any reason, with or without prior notice. Reasons for suspension of access may include, for example:
• Detection of suspicious or fraudulent activity;
• Lack of usage;
• Misuse; or
• Access devices returned as undeliverable by postal service.
CONSUMER LIABILITY FOR UNAUTHORIZED TRANSFERS
Zero Liability for Transactions. Except as provided in the next paragraph, you are generally protected from all liability for unauthorized use of any of your U.S. Bank Debit Cards, the associated account numbers printed on them (including purchases made over the phone, online or in the U.S. Bank Mobile App) and your ATM card or its associated personal identification number (PIN). You still need to report the loss or theft of these cards, PINs, and any unauthorized transactions to us as soon as you can. This is necessary so you can get any unauthorized transactions reversed, prevent further unauthorized transactions, and avoid liability for subsequent purchases we could have prevented had you given us notice.
This policy also protects you from liability for other types of electronic fund transfers. Please follow the section entitled Error Resolution Notice to report any unauthorized activity on your account.
After 60 Days from Statement Notice. If you fail to give us notice of an unauthorized electronic fund transfer within 60 days of when we first deliver a statement to you that discloses that unauthorized transaction, you will be liable for all unauthorized electronic fund transfers that occur after that 60-day period expires if we could have prevented such transaction had you reported it to us within the 60-day period. This rule applies to all forms of electronic fund transfers (including but not limited to ATM transactions, preauthorized withdrawals, online or mobile transactions, and purchases with any of your U.S. Bank Debit Cards, etc.) that occur after the 60-day period following the first statement notice.
If a good reason (such as a long trip or hospital stay) kept you from telling us, we may extend this time period.
BUSINESS DAYS
Bank “business days” are Monday through Friday. Federal holidays are not included.
CONFIDENTIALITY
We will disclose information to third parties about your account as permitted by law or the transfers you make:
1. where it is necessary for completing transfers; or
2. in order to verify the existence and condition of your account for a third party, such as a credit bureau or merchant; or
3. in order to comply with government agency or court orders; or
4. if you give us your written permission; or
5. according to our privacy pledge, which generally permits us to share information with companies that perform marketing or other services on our behalf.
23 ERROR RESOLUTION NOTICE
In case of errors or questions about your electronic transfers, call U.S. Bank 24-Hour Banking at a number on the last page, visit any U.S. Bank branch or write us at the address listed below, as soon as you can, if you think your statement or receipt is wrong or if you need more information about a transfer listed on the statement or receipt. We must hear from you no later than 60 days after we sent the FIRST statement on which the problem or error appeared.
1. Tell us your name and account number (if any).
2. Describe the error or the transfer you are unsure about and explain as clearly as you can why you believe it is an error or why you need more information.
3. Tell us the dollar amount of the suspected error.
If you tell us orally, we may require that you send us your dispute or question in writing within ten business days. We will determine whether an error occurred within ten business days after we hear from you and will correct any error promptly. If we need more time, however, we may take up to 45 days to investigate your dispute or question. If we decide to do this, we will credit your account within ten business days for the amount you think is in error, so that you will have the use of the money during the time it takes us to complete our investigation. If we ask you to put your dispute or question in writing and we do not receive it within ten business days, we might not provisionally credit your account.
For errors involving new accounts, point-of-sale, or foreign-initiated transactions, we may take up to 90 days to investigate your dispute or question. For new accounts, we may take up to 20 business days to credit your account for the amount you think is in error.
We will tell you the results within three business days after completing our investigation. If we decide that there was no error, we will send you a written explanation.
You may ask for copies of the documents that we used in our investigation.
Write to us at:
U.S. Bank
EP-MN-WS5D
60 Livingston Ave.
St. Paul, MN 55107
Error resolution and contact information with respect to Digital Services is provided in our Digital Services Agreement.
NOTICE OF ATM/NIGHT DEPOSIT FACILITY USER
PRECAUTIONS
As with all financial transactions, please exercise discretion when using an automated teller machine (ATM) or night deposit facility. For your own safety, be careful. The following suggestions may be helpful:
1. Prepare for your transactions at home (for instance, by filling out a deposit slip) to minimize your time at the ATM or night deposit facility.
2. Mark each transaction in your account record, but not while at the ATM or night deposit facility. Always save your ATM receipts. Do not leave them at the ATM or night deposit facility because they may contain important account information.
3. Compare your records with the account statements you receive.
4. Do not lend your ATM card to anyone.
5. Remember, do not leave your card at the ATM. Do not leave any documents at a night deposit facility.
6. Protect the secrecy of your Personal Identification Number (PIN).
Protect your ATM card as though it were cash. Don’t tell anyone your PIN. Don’t give anyone information regarding your ATM card or PIN over the telephone. Never enter your PIN in any ATM that does not look genuine, has been modified, has a suspicious device attached, or is operating in a suspicious manner. Don’t write your PIN where it can be discovered. For example, don’t keep a note of your PIN in your wallet or purse.
7. Prevent others from seeing you enter your PIN by using your body to shield their view.
8. If you lose your ATM card or if it is stolen, promptly notify us.
You should consult the other disclosures you have received about electronic fund transfers for additional information about what to do if your card is lost or stolen.
9. When you make a transaction, be aware of your surroundings. Look out for suspicious activity near the ATM or night deposit facility, particularly if it is after sunset. At night, be sure that the facility (including the parking area and walkways) is well lighted. Consider having someone accompany you when you use the facility, especially after sunset. If you observe any problem, go to another ATM or night deposit facility.
10. Do not accept assistance from anyone you do not know when using an ATM or night deposit facility.
11. If you notice anything suspicious or if any other problem arises after you have begun an ATM transaction, you may want to cancel the transaction, pocket your card and leave. You might consider using another ATM or coming back later.
12. Do not display your cash; pocket it as soon as the ATM transaction is completed and count the cash later when you are in the safety of your own car, home, or other secure surrounding.
13. At a drive-up facility, make sure all the car doors are locked and all of the windows are rolled up, except the driver’s window. Keep the engine running and remain alert to your surroundings.
14. We want the ATM and night deposit facility to be safe and convenient for you. Therefore, please tell us if you know of any problem with a facility. For instance, let us know if a light is not working or there is any damage to a facility. Please report any suspicious activity or crimes to both the operator of the facility and local law enforcement officials immediately.
ELECTRONIC FUND TRANSFERS FOR
BUSINESS CUSTOMERS
This section governs transactions initiated by you or your employees using a U.S. Bank Business Debit Card or ATM Card, or other U.S. Bank card products offered to business customers from time to time by U.S. Bank (“Business Debit Card(s)”). This section does not apply to electronic fund transfers initiated using online and mobile services (“Digital Services”).
When you enroll in Digital Services we will provide you with the U.S.
Bank Digital Services Agreement that governs the electronic fund transfer services we make available on our Digital Services platforms.
Your use of business debit cards is subject to the fees and terms of your checking and savings accounts as set forth elsewhere in this Agreement and in related disclosures and fee schedules, which are available at any branch in your state. Some ATM networks impose an additional transaction fee unrelated to our fees and charges and may be assessed to your account. Other electronic transactions against your account, whether or not initiated or authorized by you will be governed by the specific Agreement between us related to such transactions and/ or all applicable rules and regulations governing such transactions, including without limitation, the rules of the National Automated Clearing House Association (NACHA) as may be amended from time to time.
Under NACHA rules we cannot return an unauthorized electronic transaction (ACH debit) unless you notify us no later than 5:00 p.m.
Central Time on the business day following the settlement date of the transaction. Otherwise, your sole recourse is to the originator of the transaction.
ACCOUNT ACCESS
Any business debit card or personal identification number (PIN) issued to or selected by you, except sole proprietors who choose to have a sole proprietor business debit card, may access only related business checking or business savings accounts (for example, accounts with the same name or tax identification number). Sole proprietor business debit cards, however, can access up to five checking accounts, five savings accounts, and five line of credit or credit card accounts through Expanded Account Access. Sole proprietor cards may access business and personal accounts. For more information on Expanded Account Access, see the Electronic Fund Transfers for Consumer Customers section.
Access methods will differ depending on the business debit card selected by you and approved by us. All business debit card services may not be available depending on the access method selected.
LIMITS ON TRANSFERS
New Accounts
Generally, you cannot make deposits at a non-U.S. Bank ATM. If we permit a deposit at an ATM that is not identified as ours with the U.S. Bank name, your deposit will not be available until the fifth business day after the day of deposit.
Security
For security reasons, there are limitations on the transactions that you may perform with any of your U.S. Bank Business Debit Cards or U.S. Bank Business ATM Cards, per day. There are limitations on the number of transactions that can be performed per day and the limits may vary. For security reasons we do not disclose these limits. There are limitations on the dollar amount of cash withdrawals at ATMs and/or cash that you receive from merchants over the amount of your purchase. There are also limitations on the total dollar amount of purchases at merchants and/or cash advances at Visa® member banks you may perform during each 24-hour period beginning at 4:30 p.m. Central Time. Our standard transaction limits for business ATM cards are $500.00 per day for cash withdrawals and $2,500.00 per day for purchases. Our standard transaction limits for business debit cards are $500.00 per day for cash withdrawals and $10,000.00 per day for purchases and/or cash advances at banks. Our standard money transfer transaction limits for sending or receiving money through your U.S. Bank Debit Card is $10,000.00 per 24 day. We may change these limitations based on periodic risk assessments and we reserve the right to make such changes without notice to you.
Transfer limits are also subject to temporary reductions to protect the security of customer accounts or transfer systems.
Debit Card Transactions
When you use your U.S. Bank Business Debit Card (Debit Card) for payment, the merchant requests U.S. Bank to authorize the transaction amount. We rely on the merchant to inform us if a debit card transaction is a one-time or a recurring transaction. At the time of the request, we authorize (promise to pay) or decline the merchant’s request. If we authorize (promise to pay) we will reduce your Available Balance by the amount of the merchant’s authorization request. Some merchants (e.g., hotels, restaurants, gas stations, car rental agencies) request an authorization that is an estimated amount of the anticipated purchase instead of the full purchase amount. As a result, the reduction of your Available Balance may be less or greater than the final debit card transaction amount presented for payment. It is important to note that your Available Balance may change between the time a debit card transaction is authorized and when the debit card transaction is presented for payment.
Debit card authorizations will be reflected as pending transactions and/or will reduce your Available Balance from the time we receive the authorization until the merchant presents the item for payment. If the debit card authorization has not been presented for payment within seven business days, it may be removed from your pending transactions and your Available Balance may no longer be reduced by the authorization amount. Due to prior authorization (promise to pay), if the debit card transaction is presented for payment at a later date we will pay the item regardless of your Available Balance.
If any debit card transaction results in a negative Available Balance at the time it is presented for payment—even if your Available Balance was positive at the time the debit card transaction was authorized—you may be charged an Overdraft Paid Fee. For more information on Available Balance please see the section titled INSUFFICIENT FUNDS AND OVERDRAFTS.
Please know, it is your responsibility to ensure your account has a sufficient Available Balance to cover all transactions you conduct. We recommend keeping a record of your balance and deducting every transaction at the time you initiate it.
Account Access at Automated Teller Machines
You may use any of your Business Debit Cards (except as noted below in Employee Debit Cards and ATM Cards) to make the following transactions at ATMs:
• Make cash withdrawals from your checking and savings accounts.
Cash denominations vary by ATM.
• Get cash advances from your credit card or line of credit account. (Refer to your cardmember agreement for any cash advance fees and finance charges that may apply.)
• Deposit funds to checking and savings accounts associated with your card. Cash deposits made at a U.S. Bank ATM are credited to your account the same business day. Checks deposited before 8 p.m. local time are posted the same day. Checks deposited after 8 p.m. local time will typically be processed and posted to the account the next business day.
• Transfer funds from your account associated with your card. • Make payments to credit card or line of credit accounts from a deposit account associated with your card.
• Check the current balance of your linked checking, savings, credit card and line of credit accounts.
• Request a statement showing your most recent deposit account transactions. (Refer to your account fee disclosures regarding any fees for purchasing statements at ATMs.)
• Change your ATM or debit card PIN.
• Make certain charitable contributions from a deposit account associated with your card.
Some of these transactions are not available at all ATMs.
Purchases at Merchants
You may use any of your Business Debit Cards (except as noted below in Employee Debit Cards and ATM Cards) to make purchases at Visa® merchants that accept debit cards or make money transfers using your card (through a third party). You may use any of your business debit cards to make purchases by entering your PIN at participating merchants. You may also get cash from a merchant, if the merchant permits. Purchases made with your card will result in debits to your “primary” checking account. These transactions will be itemized on your monthly statement, including the merchant name, location, the date of purchase and the amount of the purchase.
Employee Debit Cards and ATM Cards
Business debit cards issued to employees only allow ATM deposits at an automated teller machine. They do not allow ATM cash withdrawals.
Employee ATM cards do not have purchase access at merchants.
Virtual Debit Card
You can easily access your U.S. Bank debit card virtually through online banking and the mobile app for immediate use or add it to your mobile wallet. Please note, one-time passcode verification will be required to show or copy the card information. If you open a new debit card, it will be delivered in the mail with the same card number, a new expiration date and CVV2 (the three-digit number on the back of the card). The mailed card will require activation. If your virtual card was set up for any one-time or recurring payments, you will need to update the CVV2 and expiration date.
Other Electronic Transactions
In addition to transactions initiated by using your business debit card, there are other electronic banking transactions that you may arrange through your account. These include:
• Telephone activated transfers of funds from your accounts with us to other accounts with us or to third parties. These include but are not limited to transfers made by telephone or text.
• Automatic transfer of funds between checking and savings accounts. • Automatic periodic payments to third parties or us from checking or savings accounts (for example, monthly mortgage payments, installment loan payments, insurance payments, utility payments). • Direct deposit to checking or savings accounts (for example, payroll checks, social security payments).
• Electronic check conversions from your checking account using a blank, partial or fully completed personal check at merchant locations.
• Payments made to your account through your U.S. Bank Debit Card. • You can also use any of your Business Debit Cards to obtain a cash advance from your checking account at any Visa® member bank anywhere in the world.
FEES
We will charge you fees for electronic fund transfers in accordance with the information found in our Business Pricing Information or U.S. Bank Business Essentials® Pricing Information disclosure(s). The fees may be changed at any time, subject to our giving you any notice required by law.
ATM Transaction Fee. U.S. Bank will assess this fee for each ATM Transaction (withdrawal, balance inquiry, denied transaction, funds transfer or deposit) conducted at the Non-U.S. Bank ATM. Non-U.S.
Bank ATMs are defined as any ATM that does not display the U.S. Bank logo in any manner, physically on the ATM or digitally on the screen.
ATM Surcharge. Non-U.S. Bank ATM owners may apply a surcharge fee on ATM transactions at their ATMs.
U.S. Bank participates in MoneyPass®, an ATM surcharge free network.
To find MoneyPass ATM locations, select “visit the MoneyPass locator” at the bottom of our ATM locator search results to be taken to the MoneyPass website. If you use an ATM that uses the MoneyPass® Network and are charged a surcharge fee, please contact us at 800-USBANKS (872-2657) for a refund of the surcharge fee.
USING YOUR CARD FOR INTERNATIONAL TRANSACTIONS
You may use your business debit card for retail purchases with international merchants, for international cash advances and all transactions performed at international ATMs that bear any of the network logos found on your card. Refer to our Business Pricing Information or U.S. Bank Business Essentials® Pricing Information disclosure(s) for fee information. (Both disclosures can be obtained by stopping into a U.S. Bank branch. We may block transactions in certain foreign countries. Call us at 800-673- 3555 for more information.) Some merchant and ATM transactions, even if you and/or the merchant or ATM are located in the United States, are considered international transactions under the applicable network rules, in which case we will add International Processing Fees to those transactions. U.S. Bank does not control how these merchants, ATMs, and transactions are classified for this purpose. If the transaction requires a currency conversion, the exchange rate in effect when processed may differ from the rate in effect on the date of the transaction or the date of the posting to your Account.
Transactions processed through the Visa® system will be converted according to the applicable rules established by Visa®. The foreign currency transaction will be converted to U.S. Dollars by multiplying the amount of the foreign currency times (a) a rate selected by Visa® from the range of rates available in wholesale currency markets for the applicable central processing date, which rate may vary from the rate 25 Visa® itself receives, or (b) the government-mandated rate in effect for the applicable central processing date. For transactions processed through other networks, the international currency transaction will be converted by that network in accordance with their rules.
Additional fees may apply. If you need to contact us about your card while outside of the United States, call us collect at 503-401-9991.
BALANCE REQUIREMENTS
Transactions using your business debit card will be completed only if sufficient funds are available in the applicable account balance, overdraft protection or other linked credit facility to fully perform the transaction.
UNAUTHORIZED TRANSACTIONS AND LOST OR STOLEN
CARDS AND SECURITY
You are solely responsible for maintaining the security of your business debit cards and PINs and their use by you and your employees and other agents. You shall be liable for the acts of your employees and agents related to your business debit cards, including business debit card applications and other service requests. If you provide another person with the means to perform transactions related to your accounts using your business debit card or PIN, any resulting transactions will be treated as if they were performed and authorized by you.
You are generally protected from liability for unauthorized use of your business debit card.
The U.S. Bank Zero Liability policy is subject to certain conditions. If we determine that the unauthorized transaction was caused by your gross negligence or fraud, the U.S. Bank Zero Liability policy will not apply.
You still need to report the loss or theft of these cards, PINs, and any unauthorized transactions to us as soon as you can. This is necessary so you can get any unauthorized transactions reversed, prevent further unauthorized transactions, and avoid liability for subsequent purchases we could have prevented had you given us notice.
You must report an unauthorized debit card transaction to us within a reasonable time, not to exceed 60 days, from the day we send or make your account statement available to you on which an unauthorized transaction is first reported. If you fail to give us notice of an unauthorized debit card transaction within 60 days of when we first deliver a statement to you that discloses that unauthorized transaction, you will be liable for all debit card transactions that occur after that 60-day period expires if we could have prevented such transaction had you reported it to us within the 60-day period.
Please be aware that consumer rights governed by the Electronic Fund Transfer Act do not apply to business accounts and we are not liable to reimburse you for unauthorized or erroneous transactions that may occur on your business account via electronic fund transfer.
If you believe that an erroneous or unauthorized transaction has occurred using your business debit card, or if your card has been lost or stolen, or if you want to cancel a business debit card issued to you or your employee/ agent, or if you want to change your PIN, you must immediately telephone us at:
© 2024, U.S. Bank National Association 40341
U.S. Bank 24-Hour Banking
Cincinnati Metro Area:513-632-4141
Denver Metro Area:303-585-8585
Milwaukee Metro Area:414-765-4636
St. Louis Metro Area:314-425-2000
Minneapolis/St. Paul Metro Area:612-USBANKS (872-2657)
Portland Metro Area:503-USBANKS (872-2657)
All Other Areas:800-USBANKS (872-2657)
Outside the U.S.:503-401-9991 (call collect)
U.S. Bank Business Service Center
Monday - Friday:8:00 a.m. to 8:00 p.m. CT
Saturday:8:00 a.m. to 6:30 p.m. CT
Minneapolis/St. Paul Metro Area:651-244-7770
All Other Areas within the U.S.:800-673-3555
Outside the United States:503-401-9992
U.S. Bank Fraud Liaison Center
877-595-6256
U.S. Bank accepts relay calls.
© 2024 Wolters Kluwer Financial Services, Inc. All rights reserved.
USB-AIB 05/13/2024 Custom 202220225-030
1 N E W A P P L I C A T I O N - G O V E R N M E N T / I N S T I T U T I O N A L 1 COMPANY INFORMATION
DBA NAME: CONTACT NAME: DBA ADDRESS TYPE: DBA ADDRESS1 (NO PO BOX):
DBA ADDRESS 2:
CITY: STATE: ZIP CODE: DBA PHONE #: DBA FAX #:
DATE FOUNDED: MOBILE PHONE #:
EMAIL ADDRESS: CIP EXEMPTION: 2 OTHER ADDRESS (IF DIFFERENT THAN ABOVE)
MAILING SHIPPING SEE ALSO SPECIAL INSTRUCTIONS (MORE THAN ONE OPTION MAY BE SELECTED) LOCATION NAME: PHONE #:
CONTACT: FAX #:
ADDRESS: CITY: STATE: ZIP CODE: STATEMENTS/ RETRIEVALS /CHARGEBACKS STATEMENTS: DBA OR MAILING OR W-9 AUTO SEND: YES NO (CHAIN COMPANIES ONLY – MUST INCLUDE CHAIN SET UP FORM) RETRIEVALS: ONLINE CASE MANAGEMENT (OCM) OR EMAIL TO: OR FAX TO: DBA MAILING OR MAIL TO: DBA MAILING CHARGEBACKS: ONLINE CASE MANAGEMENT (OCM) OR EMAIL TO: OR FAX TO: DBA MAILING OR MAIL TO: DBA MAILING 3 CONTACT INFORMATION (AUTHORIZED REP)
OFFICER MANAGER AUTHORIZED REPRESENTATIVE OTHER: FIRST NAME: MN: LAST NAME: TITLE: US PERSON: EMAIL ADDRESS: CONTACT ADDRESS (NO PO BOX): ADDRESS TYPE: CITY: STATE: ZIP CODE: DOB: CONTACT PHONE #:
INDIVIDUAL ID EXEMPTION CLASS: GOVERNMENT FEDERAL STATE LOCAL (POLITICAL SUBDIVISION OF A US STATE)
OTHER COMPANY INFORMATION
AVERAGE SALE AMOUNT: $ CARD PRESENT 100% OMNI COMMERCE (MUST TOTAL 100%) HIGH SALE AMOUNT: $ CARD NOT PRESENT 100% CARD PRESENT % NUMBER OF HIGH SALES TRANSACTIONS ANNUALLY: INTERNET 100% CARD NOT PRESENT* % TOTAL MONTHLY VISA/MC/AMEX/DISC/UNIONPAY SALES: $ OMNI COMMERCE INTERNET * % ANNUAL TOTAL REVENUE: (CASH, CHECK, CARD) $ INTERNET: PRODUCT WEBSITE:
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INTERNET: “CONTACT US” EMAIL: DESCRIPTION OF PRODUCT/SERVICES OFFERED: SPECIAL PROGRAM MCC ONLY: *CUSTOMER SERVICE PHONE # AND PREVIOUS PROCESSOR REQUIRED BELOW WHEN DOES THE CUSTOMER RECEIVE THE PRODUCT OR SERVICE?
IF NOT SAME DAY, # OF DAYS (INCLUDE SHIPPING TIME FRAME) CUSTOMER SERVICE PHONE #:
PREVIOUS PROCESSOR:
IF SEASONAL, PLEASE CHECK MONTHS CLOSED BELOW. (CUSTOMER MUST CONTACT CUSTOMER SERVICE TO DEACTIVATE AND REACTIVATE ACCOUNT)
JANUARY FEBRUARY MARCH APRIL MAY JUNE
JULY AUGUST SEPTEMBER OCTOBER NOVEMBER DECEMBER
BANK ACCOUNT (CHECKING ACCOUNTS ONLY)
DEPOSIT BANK NAME: ABA/ROUTING #: DDA ACCOUNT #:
BILLING/CHARGEBACK BANK NAME (IF DIFFERENT): ABA/ROUTING #: DDA ACCOUNT #:
CHARGEBACK BANK NAME (IF DIFFERENT THAN BILLING): ABA/ROUTING #: DDA ACCOUNT #:
FUNDING OPTIONS: MONTHLY FEE $ TAPE ID (OPT):
USA-GOV-ELV-0724 v2
2 CARD ACCEPTANCE (PLEASE CHECK EACH CARD YOU WISH TO ACCEPT) PRICING CATEGORY
ALL VISA/MASTERCARD/AMEX/UNIONPAY/ DISCOVER (JCB, DI)/ WITH PIN / PINLESS DEBIT PIN DEBIT PINLESS DEBIT ALL VISA/MASTERCARD/AMEX/UNIONPAY/ DISCOVER (JCB, DI)
VISA CREDIT VISA DEBIT MC CREDIT MC DEBIT DISCOVER (JCB, DI) UNIONPAY AMEX PIN DEBIT PINLESS DEBIT RETAIL RESTAURANT
LODGING
SUPERMARKET MO/TO /
INTERNET ARU
OMNI COMMERCE
(TIERED & EICP ONLY)
PRICING INFORMATION FEES
PRICING PROGRAM: (FIXED ONLY) VISA/MASTERCARD/UNIONPAY/ DISCOVER CARDS (JCB, DI,)
AMERICAN EXPRESS OPT BLUE PIN//PINLESS DEBIT*** APPLICATION $ RATE* PER ITEM* RATE PER ITEM RATE
PER
ITEM INSTALLATION/TRAINING $ TIERED
QUALIFIED % $ % $ % $ REPORTING & SUPPORT PACKAGE (PER MONTH) $ MID QUALIFIED % $ % $ MONTHLY MINIMUM $
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% $ STATEMENT: ELECTRONIC OR PAPER
$ OPT. REWARDS % $ MONTHLY STATEMENT MAILING (PAPER STATEMENTS ONLY) OPT. COMMERCIAL CARD % $ RUSH SHIPMENT $
INTERCHANGE PLUS % $ % $ % $ OTHER: $
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MID QUALIFIED % $ % $ VISA (PER AUTH) $ VOICE - ARU (PER AUTH) $ COMMERCIAL NON- QUALIFIED % $ MASTERCARD (PER AUTH) $ VOICE OPERATOR (PER AUTH) $ NON-QUALIFIED % $ % $ DISCOVER (PER AUTH) $ VOICE - AVS (PER AUTH) $ FIXED - PRICING PGM: % $ % $ UNIONPAY (PER AUTH) $ VOICE BANK REF (PER AUTH) $ *RATES ARE FOR ALL CARD ACCEPTANCE TYPES SELECTED. ALL CARD BRAND ASSESSMENTS WILL BE PASSED THROUGH AT COST. ***THE COST OF ACCEPTANCE FOR PIN/PINLESS DEBIT WILL BE OPTIMIZED WHEN APPLICABLE. AMEX OPT BLUE (PER AUTH) $ AMEX PUBLIC SECTOR (TPSP) (PER AUTH) $ SECURITY PROGRAMS PIN/PINLESS DEBIT (PER AUTH) $
SECURITY PROGRAM: Monthly
(PCI/SAFET) PROGRAM DISCOUNTED FEE: $ INTERNATIONAL CARD HANDLING FEE (RATE): (CHARGED ON VISA, MC, DISCOVER, AMEX) % (PCI/SAFET) PROGRAM STANDARD FEE: $
Please see additional disclosures in the Company Representations and Certification section. AUTHORIZATION PRICING PROGRAM: OTHER CARD TYPES EXISTING AMEX SE # (10 DIGITS): PER AUTH: $ EBT SE # (7 DIGITS): PER AUTH: $
AMERICAN EXPRESS PUBLIC SECTOR (TPSP) COMPANY IS ELIGIBLE FOR AMERICAN EXPRESS PUBLIC SECTOR (TPSP) AND ACCEPTS COMPANY IS ELIGIBLE FOR AMERICAN EXPRESS PUBLIC SECTOR (TPSP) BUT DECLINES ACCEPTANCE INDUSTRY TYPE: PRICING INFORMATION FOR AMERICAN EXPRESS PUBLIC SECTOR (TPSP)
TIERED RATE PER ITEM ENHANCED IC PLUS RATE PER ITEM
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USA-GOV-ELV-0724 v2
100
100
12.99 40
35 20
20 0.85
0.85 0.85
0.85 PCI Basic
25 124.99
0.60 3
POINT OF SALE (EQUIPMENT OR SOFTWARE)
NETWORK: ELAVON OTHER A THIRD PARTY INTEGRATOR WILL BE USED FOR IMPLEMENTATION: VAR SERVICE PROVIDER (HOSTED): VAR (DISTRIBUTED): VENDOR: PRODUCT: VERSION: # OF TIDS TID TYPE OMNI ONLY: # OF TIDS TID TYPE OMNI ONLY: PURCHASE/SETUP SOFTWARE/WIRELESS QTY POS DESCRIPTION ITEM CODE
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TERMINAL ENCRYPT OWNS
TERMINAL CONNECTION TYPE REPROG
FEE
PER UNIT PRICE PER UNIT ANNUAL FEE PER UNIT MONTHLY FEE PER UNIT PER AUTH FEE $ $ $ $ $
$ $ $ $ $
$ $ $ $ $
$ $ $ $ $
$ $ $ $ $
$ $ $ $ $
ALL APPLICABLE STATE AND LOCAL TAXES WILL BE APPLIED. SALES TAX EXEMPT Elavon and Member have no responsibility for, and shall have no liability to Company in connection with, any hardware or software, or any related services, Company receives under a direct agreement (including any sale, warranty or end-user license agreement) between Company and a third party, including any Value Added Servicer, even if Elavon collects fees or other amounts from Company with respect to such hardware, software or services.
ADDITIONAL POS
SERVICES: DESCRIPTION SETUP FEE ANNUAL FEE MONTHLY FEE PER AUTH FEE $ $ $ $
$ $ $ $
SOFTWARE/WIRELESS RENTAL EQUIPMENT: QTY POS DESCRIPTION ITEM CODE TID TYPE OMNI ONLY
TERMINAL CONNECTION TYPE MONTHLY RATE PER UNIT ANNUAL FEE PER UNIT MONTHLY FEE PER UNIT PER AUTH FEE $ $ $ $
$ $ $ $
$ $ $ $
$ $ $ $
$ $ $ $
$ $ $ $
Rentals may result in paying more for the equipment over time as compared to purchasing. Rental equipment may be new or used and is dependent on inventory available at time of order. All used equipment is inspected and refurbished upon return before being re-deployed. Rentals are month to month and may be terminated at any time by Company. Additional provisions around the use of rental equipment can be found in the Equipment Chapter of the Operating Guide: a link to the Operating Guide can be found in Section 4 of this application, below.
TERMINAL PROGRAMING INSTRUCTIONS (DO NOT USE FOR CONVERGE – THIS INFORMATION IS COVERED DURING TRAINING) RETAIL (AUTO CLOSE DEFAULT) QUICK CLOSE STORE AND FORWARD NO SIGNATURE CONTACTLESS (+ NO SIGNATURE)
RESTAURANT (QUICK CLOSE DEFAULT) TIP FUNCTION (DEFAULT) FINE DINING TAB FUNCTION
CARD NOT PRESENT (AUTO CLOSE DEFAULT) QUICK CLOSE
LODGING (QUICK CLOSE DEFAULT) QUICK STAY
SEMI INTEGRATED
CUSTOM PROMPTS: TERMINAL AUTO CLOSE (RTL, MOTO) TIME ZONE CASH BACK PIN DEBIT (RTL): $ (MAX) CUSTOM FOOTER: NO TIP (REST) NO SERVER PROMPT (REST) CLERK PROMPT (RTL) TIP FUNCTION WAITER (RTL) TIP FUNCTION CASHIER (RTL) TRAINING (DEFAULT = TRAINING REQUIRED): NO TRAINING
REPORTING TOOLS
ONLINE CASE MANAGEMENT MONTHLY FEE $ SET UP FEE $ # USERS SET UP TYPE (CHECK ONE) MID CHN ACS MONTHLY FEE $ SET UP FEE $ REMOTE ID
OTHER VAS
3D Secure Per Occurrence: $ TALECH TAP TO PAY (TALECH SAAS REQUIRED) USA-GOV-ELV-0724 v2
4 ELECTRONIC CHECK AND ACH PROCESSING AND SERVICE OPTIONS ANNUAL CHECK VOLUME: $ MAXIMUM CHECK AMOUNT: $
AVERAGE CHECK AMOUNT: $ MONTHLY MINIMUM: $
ECS- PAPER CHECK CONVERSION ACH ECHECK – CARD NOT PRESENT (CNP) PROCESSING OPTIONS: PROCESSING OPTIONS: POP – POINT OF PURCHASE ARC – ACCOUNTS RECEIVABLE CONVERSION
BOC – BACK-OFFICE CONVERSION
CONCURRENT ENROLLMENT (INCLUDES: WEB, TEL, PPD AND CCD) = XNP
INDIVIDUAL ENROLLMENT - CHOOSE ONE (ONE PER MID)
WEB – INTERNET INITIATED ENTRIES
TEL/IVR – TELEPHONE INITIATED ENTRIES
PPD – PREARRANGED PAYMENT ENTRIES CCD – CORPORATE TO CORPORATE ENTRIES CONVERGE SETUPS WILL BE CONCURRENTLY ENROLLED IN ALL PRODUCT TYPES = XNP SERVICE: SERVICE: CONVERSION WITH GUARANTEE
DISCOUNT RATE: % PER TRANSACTION: $
ACH-ECHECK WITH VERIFICATION
PER TRANSACTION: $
PER RETURN TRANSACTION: $
CONVERSION WITH VERIFICATION OR CONVERSION ONLY
PER TRANSACTION: $
PER RETURN TRANSACTION: $
ACH-ECHECK CONVERSION ONLY
PER TRANSACTION: $
PER RETURN TRANSACTION: $
Other ECS Check Conversion Service Requests
PROMPTS FOR DRIVER’S LICENSE NUMBER, STATE OF LICENSE ISSUANCE AND TELEPHONE NUMBER (REQUIRED FOR GUARANTEE SERVICE) ACH-Echeck Questionnaire
1. What types of payments will you accept using ACH-Echeck (e.g., utility bill payments, monthly rent payments, monthly billing for general services)?
2. Will you obtain authorization from your customers prior to accepting an ACH entry in accordance with the ECS MOG (e.g., orally via telephone for tel/ivr, or in writing for ppd)? Yes No
3. Will you verify and authenticate the identity of your customers in accordance with the ECS MOG prior to initiating ACH entries for those customers (e.g., by obtaining a customer’s name, address and telephone number or using a database to verify the accuracy of the information provided by customer)? Yes No
4. Will you offer ACH-Echeck to existing or new customers? Existing New
5. Will you maintain and disclose to your customers procedures for cancelling an authorization? Yes No
6. Will you ensure that information regarding each transaction authorization entered by a customer and/or your service representative is accurate and not a duplicate transaction? Yes No
Mass Transit Services
MASS TRANSIT FEE: $
A MASS TRANSIT FEE INCLUDES ANY OF THE FOLLOWING: CONTACTLESS TAPS, INITIAL VALIDATIONS OR AUTHORIZATIONS, DEFERRED AUTHORIZATIONS, DEBT RECOVERY AUTHORIZATIONS, AND REFUND/CREDIT AUTHORIZATIONS. FOR THE AVOIDANCE OF DOUBT, INTERCHANGE AND ASSESSMENT FEES ARE NOT INCLUDED IN THE MASS TRANSIT FEE LISTED ABOVE.
USA-GOV-ELV-0724 v2
5 CONVENIENCE FEE AND GOVERNMENT/PUBLIC INSTITUTION SERVICE FEES (GPISF)
CONVENIENCE FEE SERVICES PROGRAMS GPISF SERVICES PROGRAMS (CHECK ALL THAT APPLY, BUT ONLY IF COMPANY ELECTS GPISF ASSESSMENTS: COMPANY-MANAGED SERVICE FEE4 CONVENIENCE FEE FUNDING MODEL (CHECK ONE): COMPANY-MANAGED WITH ELAVON POS DEVICES/SERVICE FEE TERMINALS5 COMPANY MANAGED CONVENIENCE FEE1 ELAVON-MANAGED SERVICE FEE6 ELAVON MANAGED CONVENIENCE FEE2 PARTNER MANAGED SERVICE FEE7 PARTNER MANAGED CONVENIENCE FEE3 CARD ACCEPTANCE (CHECK ALL THAT APPLY):
PAYMENT TRANSACTION TYPES POINT OF SALE INTERNET CREDIT (CHECK ALL THAT APPLY): IVR OTHER: VISA MASTERCARD DISCOVER AMERICAN EXPRESS PS GPISF SERVICES PROGRAMS (CHECK ALL THAT APPLY, BUT ONLY IF COMPANY ELECTS GPISF ASSESSMENTS: SIGNATURE DEBIT (CHECK ALL THAT APPLY): MASTERCARD GOVERNMENT AND EDUCATION PAYMENT PROGRAM
VISA GOVERNMENT AND EDUCATION PAYMENT PROGRAM
AMERICAN EXPRESS GOVERNMENT AND EDUCATION PAYMENT PROGRAM
V DISCOVER GOVERNMENT AND EDUCATION PAYMENT PROGRAM ISA MASTERCARD DISCOVER PIN-BASED DEBIT PINLESS DEBIT TRANSACTION TYPES: ACH (VIA ELECTRONIC CHECK SERVICES) FEDERAL INCOME TAX GOVERNMENT FEES
STATE INCOME TAX REAL ESTATE PROPERTY TAX
BUSINESS TAX OTHER TAX
TUITION OTHER EDUCATION EXPENSES
ELAVON PRODUCT SUPPORTING ELAVON-MANAGED CONVENIENCE FEE ASSESSMENT TO BE USED BY COMPANY (CHECK ALL THAT APPLY):
PAYCENTRIC BILL PAY SERVICES (ADDITIONAL ENROLLMENT FORM REQUIRED): PAYMENT TYPES FOR GPISF ASSESSMENT (NOT ALL PAYMENT TYPES ARE SUPPORTED FOR ALL PROGRAMS) (CHECK ALL THAT APPLY, BUT ONLY IF COMPANY ELECTS GPISF ASSESSMENT):
COMPANY PROPRIETARY SOLUTION OR VALUE-ADDED SERVICER CREDIT – (CHECK ALL THAT APPLY):
OTHER: VISA – ELIGIBLE MCCS: 8211, 8220, 8244, 8249, 9211, 9222, 9311, 9399 CONVENIENCE FEE PRICING: MASTERCARD – ELIGIBLE MCCS: 8211, 8220, 8299, 9211, 9222, 9223, 9311, 9399,9402
DISCOVER (AVAILABLE IF ELAVON-ACQUIRED)
AMERICAN EXPRESS PS – ELIGIBLE MCCS: 8211, 8220, 8244, 8249, 9211, 9311, 9399, CONVENIENCE FLAT FEE AMOUNT 9222 : $
CONVENIENCE FEE %: (MASTERCARD, DISCOVER & ACH PROGRAMS ONLY) SIGNATURE DEBIT – (CHECK ALL THAT APPLY) IMPLEMENTATION FEE (IF APPLICABLE): $ VISA – ELIGIBLE MCCS: 8211, 8220, 8244, 8249, 9211, 9222, 9311, 9399 MASTERCARD – ELIGIBLE MCCS: 8211, 8220, 8299, 9211, 9222, 9223, 9311, 9399,9402
DISCOVER (AVAILABLE IF ELAVON-ACQUIRED)
ACH (VIA ELECTRONIC CHECK SERVICES)
ELAVON PRODUCT SUPPORTING GPISF ASSESSMENT TO BE USED BY COMPANY (CHECK ALL THAT APPLY):
PAYCENTRIC BILL PAY SERVICES (ADDITIONAL ENROLLMENT FORM REQUIRED): SERVICE FEE TERMINAL COMPANY PROPRIETARY SOLUTION OR VALUE-ADDED SERVICER
SAFE-T SERVICES (ADDITIONAL ENROLLMENT FORM REQUIRED)
OTHER: GPISF PRICING: SERVICE FEE AMOUNT: % OR $
ACH (VIA ELECTRONIC CHECK SERVICES): $
IMPLEMENTATION FEE (IF APPLICABLE): $ 1
“Company-Managed” Convenience Fee means that Company establishes the amount of the Convenience Fee (subject to the requirements of the Agreement and applicable Payment Network Regulations) and retains the Convenience Fee.
Company pays Elavon the per transaction fees as set forth in this application to the Agreement for all Convenience Fee Transactions. 2 “Elavon- Managed” Convenience Fee means that Elavon establishes the amount of the Convenience Fee and retains the Convenience Fee in lieu of Company’s obligation to pay Elavon the per transaction fees as set forth in this application to the Agreement for Convenience Fee Transactions. The Convenience Fee is still charged by Company and included in the overall transaction amount charged to the Cardholder. 3 “Partner- Managed” Convenience Fee means that Sales Partner (a Sales Partner is a registered third party sales organization selling Elavon services) establishes the amount of the Convenience Fee (subject to the requirements of the Agreement and applicable Payment Network Regulations) as set forth in this application to the Agreement. Elavon will retain the Convenience Fee in lieu of Company’s obligation to pay Elavon the per transaction fees as set forth in this application to the Agreement. The Convenience Fee is still charged by Company and included in the overall transaction amount charged to the Cardholder. 4 “Company-Managed” Service Fee means that Company establishes the amount of the GPISF, programs its POS Devices to assess the GPISF, and retains the GPISF (subject to the requirements of the Agreement and applicable Payment Network Regulations). Company pays Elavon the per transaction fees as set forth in this application for all GPISF Transactions. 5 “Company-Managed with Elavon POS Devices/Service Fee Terminals” means that Elavon programs the POS Devices to assess the GPISF established by Company and Company retains the GPISF. Company pays Elavon the per transaction fees as set forth in this application to the Agreement for all GPISF Transactions. 6 “Elavon-Managed” Service Fee means that Elavon establishes the amount of the GPISF, and Elavon charges and retains the GPISF in lieu of Company’s obligation to pay Elavon the per transaction fees and Safe-T Services fees (if Safe-T is chosen above) for GPISF Transactions. 7
“Partner- Managed” Service Fee means that Sales Partner (a Sales Partner is a registered third party sales organization selling Elavon services) establishes the amount of the GPISF (subject to the requirements of the Agreement and applicable Payment Network Regulations) as set forth in this application to the Agreement. Elavon will retain the GPISF in lieu of Company’s obligation to pay Elavon the per transaction fees and Safe-T Services fees (if Safe-T is chosen above) for GPISF Transactions.
USA-GOV-ELV-0724 v2
6 SUBSTITUTE FORM W-9
GOVERNMENT OTHER
LEGAL BUSINESS NAME*: *NAME (OF BUSINESS) AS SHOWN ON YOUR BUSINESS INCOME TAX RETURNS. FOR SOLE PROPRIETORS, THIS SHOULD ALWAYS BE THE OWNER’S NAME. LEGAL BUSINESS ADDRESS (NO PO BOX): OR TIN (EMPLOYER ID #):
CITY: STATE: ZIP CODE: TIN (SOCIAL SECURITY #):
4 COMPANY REPRESENTATIONS AND CERTIFICATIONS
Company Representations and Certifications. By signing below, the applicant company (“Company”) and its representative(s) represent and warrant to Elavon, Inc. (“Elavon” or “member” as applicable), with offices at 7300 Chapman Highway, Knoxville, TN 37920 (collectively, “we” or “us”) that (i) all information provided in this company application (“Company Application”) is true and complete and properly reflects the business and financial condition of Company; and (ii) the persons signing this Company Application are duly authorized to bind Company to all provisions of this Company Application and the Agreement. The signature by an authorized representative of Company on the Company Application, or the transmission of a Transaction Receipt or other evidence of a Transaction to us, shall be the Company’s acceptance of and agreement to the terms and conditions contained in the Agreement including, without limitation, this Company Application, the Terms of Service (“TOS”), the Addendum to the Terms of Service for Government/Institutional Companies attached hereto, and the Operating Guide incorporated herein by this reference and located at our website at https://www.mypaymentsinsider.com/api/file/c/Terms_of_Service_English and https://www.mypaymentsinsider.com/api/file/c/Operating_Guide_English, respectively. If you are accepting electronic payments through Transend Pay you also agree to the Terms and Conditions set out under the Resources tab at www.elavon.com/transendpay, and as subsequently amended in the Operating Guide in the Transend Pay Services Chapter. If Company does not have access to view the TOS or Operating Guide at our website, please contact our customer service center. Notwithstanding any such non-receipt of the TOS or Operating Guide, Company agrees to comply with the Agreement, and all applicable laws, rules, and regulations including the rules and regulations of the Payment Networks, and understands that failure to comply will result in termination of processing services. Capitalized terms shall, unless otherwise defined in this Company Application, have the same meaning ascribed to them in the TOS and Operating Guide.
Company must obtain an Authorization Code via electronic terminal or similar device before completing any transaction. Company understands that an AUTHORIZATION CODE IS NOT A GUARANTEE OF ACCEPTANCE OR PAYMENT OF A TRANSACTION. RECEIPT OF AN AUTHORIZATION CODE DOES NOT MEAN THAT COMPANY WILL NOT RECEIVE A CHARGEBACK FOR THAT TRANSACTION.
Company and its representative(s) authorize us prior to our acceptance of this Company Application and from time to time thereafter, to investigate the business history and background of Company and to obtain credit reports on a periodic basis (i.e. monthly) or at any time or other background investigation reports on Company that we consider necessary to review the acceptance and continuation of this Company Application. Company also authorizes any person or credit reporting agency to compile information to answer those credit inquiries and to furnish that information to us.
IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT. To help the government fight the funding of terrorism and money laundering activities, Federal law requires all financial institutions to obtain, verify, and record information that identifies each person who opens an account. This means we will ask for certain information and identifying documents to allow us to identify you. This Company Application may be signed in one or more counterparts, each of which shall constitute an original and all of which, taken together, shall constitute one and the same Company Application. Delivery of executed counterparts of this Company Application may be accomplished by a facsimile transmission, and a signed facsimile or copy of this Company Application shall constitute a signed original.
PCI Compliance, PCI/SafeT Program Fees. All companies, regardless of Transaction volume, must comply with the requirements of the Payment Card Industry Data Security Standard (“PCI DSS”). Elavon’s monthly (PCI/Safe-T) Program Standard Fee is disclosed in the Fee section of this Application. For clarity, if Company has selected a Safe-T solution, the fee for PCI DSS compliance is included within the (PCI/Safe-T) Program Standard Fee. For ninety (90) days following account approval, Company will be charged the (PCI/SafeT) Program Discounted Fee disclosed in the Fee section of this Application. If Company validates its initial PCI DSS compliance within ninety (90) days after account approval, it will continue to be eligible for the (PCI/SafeT) Program Discounted Fee for the 12 months starting with the month in which it provides validation (e.g., if Company validates compliance in March, it will pay the discounted fee from March through February of the following year). If Company does not validate its initial PCI DSS Compliance within ninety (90) days following account approval, then Company will be required to pay the full, undiscounted (PCI/SafeT) Program Standard Fee until Company validates its annual PCI DSS compliance.
For any time after the ninety (90) days following account approval, if Company validates PCI DSS by the 25th day of a month, Company will be eligible for the (PCI/SafeT) Program Discounted Fee for the 12 months starting with the month of validation (e.g., if Company validates compliance by the 25th of March, it will pay the discounted fee from March through February of the following year). Following the end of each annual PCI DSS compliance validation period, Company will have to the 25th of the following month to validate compliance or Company will be required to pay the full, undiscounted monthly (PCI/SafeT) Program Standard Fee until Company again validates compliance.
American Express Acceptance Program (Acceptance Program). If Company has elected to accept American Express® Transactions (as indicated in the Card Acceptance section of this Company Application), in addition to all other terms of this Agreement, Company agrees to the Acceptance Program terms of the TOS. By signing below or by accepting a Transaction initiated with an American Express® Payment Device, Company expressly authorizes Elavon to submit American Express® Transactions to, and to receive settlement funds from, American Express on Company’s behalf. Company further authorizes Elavon to provide Company’s contact information to American Express, and Company agrees that American Express may use and share such contact information for its business purposes and as permitted by applicable Laws, including to communicate with Company regarding products, services, and resources available to Company’s business. American Express’s use of the email address and mobile phone number provided above is subject to the consent to such use as indicated in Section 1 of this Company Application. Consent to American Express’s use of contact information for such communications may be withdrawn at any time by contacting our customer service center. Even if consent is withdrawn, Company may still receive messages related to important information about Company’s account from American Express. Company or Elavon may terminate Company’s acceptance of American Express® Payment Devices at any time, with or without cause, without affecting Company’s rights and obligations pursuant to the remainder of this Agreement. Company acknowledges that, if at any time Company is no longer qualified to participate in the Acceptance Program, Company may be enrolled in the standard American Express® card acceptance program, which may have different terms and conditions than the Acceptance Program, and Company’s acceptance of American Express® Payment Devices pursuant to this Agreement will be terminated. Company acknowledges that American Express is an intended third-party beneficiary of this Agreement, solely with respect to the terms and conditions applicable to Company’s acceptance of American Express® Payment Devices, and that American Express has the right to enforce such terms and conditions directly against Company.
A PIN/PINLess Debit Enablement Service Fee will be collected for any Interchange and Assessment savings generated through debit routing on your monthly debit transactions for Interchange Plus customers only. This monthly fee will be calculated from your actual debit transaction volume and will be a percentage of your overall debit cost savings. The PIN/PINLess Debit Enablement Service Fee collected and the Interchange and Assessment savings will be reflected on your monthly statement.
SIGNATURE: X PRINTED NAME: TITLE: DATE: SIGNATURE: X PRINTED NAME: TITLE: DATE: SUBMITTED BY (INTERNAL USE ONLY) To the best of my knowledge, I certify that the information provided in this Company Application was provided by the Company and is true, complete and accurate. I further certify that the signatures were provided by the Company’s authorized representative.
SALES REP SIGNATURE: X PRINTED NAME: REP ID #: DATE: REP PHONE #: REP EMAIL: SECONDARY REP ID #:
USA-GOV-ELV-0724 v2
7 ADDENDUM TO THE TERMS OF SERVICE FOR GOVERNMENT/INSTITUTIONAL COMPANIES The following provisions hereby replace the like-numbered provisions of the Terms of Service (“TOS”) or are hereby inserted or deleted from the TOS, as indicated, for Companies operating under the Agreement. Capitalized terms used and not otherwise defined in this Addendum shall have the meanings ascribed to them in the Agreement or the Operating Guide. 1) Section 4.1 Security Interests is deleted.
2) Section 5.1 Term is deleted and replaced with the following: “Term. Unless terminated as provided below, the Agreement will remain in effect for a period of three years (“Initial Term”) following the date of acceptance of the Company Application by Elavon, which date will be the date upon which the Agreement becomes effective. Thereafter, the Agreement will renew automatically for successive one month terms (successive six month terms with respect to Canada) (“Renewal Term”) unless terminated as provided below. If Company processes Transactions beyond the Initial Term or Renewal Term, then the terms of the Agreement will govern such Transaction processing.” 3) Section 5.2(a) is revised to add the following:
“(iv) Company may terminate the Agreement on 60 days’ prior written notice to Elavon if sufficient legislative appropriation is not available.”
4) Section 5.2(b) is deleted and replaced with the following: “By Elavon. Elavon may terminate the Agreement immediately in writing if any of the following occur:
(i) A material adverse change in Company’s financial condition; (ii) The commencement of a Bankruptcy Proceeding by or against Company; (iii) Any representation by Company is false or misleading in any material respect as of the date made, or becomes false or misleading in any material respect at any time during the Term; (iv) Any Payment Network or application of Payment Network Regulations requires Elavon to terminate the Agreement or cease processing Transactions for Company;
(v) Assignment of the Agreement or change of control of Company without Elavon’s written consent; (vi) The levy, garnishment or attachment of the DDA, the Reserve Account, or any of Company’s property in Elavon’s possession;
(vii)Any change, not approved by Elavon, that constitutes a material change in the types of goods or services Company sells or in the methods by which Company sells them, or any change that results in Company’s violation of Elavon’s underwriting policy; or
(viii) If, after Elavon provides 30 days’ written notice, Company has either (1) Chargebacks or Retrieval Requests in excess of 1% of the gross dollar amount of Company’s Transactions or returns in excess of 2.5% of the gross dollar amount of Company’s Transactions, or (2) the acceptance of Card Not Present or Convenience Fee Transactions without proper disclosure to Elavon in the Agreement (including in the Company Application) or an amendment to the Agreement.” 5) Section 7.1. Only if Company elects and is approved for the invoice fee collection model, then the second sentence of Section
7.1 of the Agreement is deleted and replaced with the following:
“Such fees will be calculated once each month for the previous month’s activity. Elavon will send Company an invoice reflecting the fees due, which Company will pay within 30 days of the invoice date. In addition to all other available remedies, Elavon may offset any outstanding or uncollected amounts that are more than 90 days past due from (i) any amounts it would otherwise be obligated to deposit into the DDA and (ii) any other amounts Elavon may owe Company under the Agreement.” 6) Section 7.2 Change of Fees is deleted and replaced with the following: “Change of Fees. Elavon will not amend the fees for the Services for the Initial Term except to pass through to Company increases in interchange, assessments or charges, or increased or new fees imposed by a third party (including a Payment Network).”
7) Section 7.3(b) is deleted and replaced with the following:
“(b) Elavon will charge interest on all uncollected amounts owed to Elavon: (i) as provided in the applicable jurisdiction’s prompt payment act; or (ii) if no such statute applies, then on amounts more than 30 days past due at a rate no greater than the maximum rate of interest permitted under Laws.”
8) Section 7.4 Taxes is deleted and replaced with the following: “Taxes. If applicable, Company will pay all taxes and other charges imposed by any governmental authority on the Services and Equipment provided under the Agreement, excluding any taxes based on Elavon’s property or net income. If Company is a taxexempt entity, Company will provide Elavon with an appropriate certificate of tax exemption.” 9) Section 9.1(b) Disclosure of Confidential Information is revised to add after the last sentence as follows:
“If Company is subject to an open or public records law, Elavon will comply with the applicable requirements and provide Company with reasonable assistance and information when necessary to enable Company to comply with its disclosure requirements; provided, that Elavon will not be required to disclose information that is not subject to disclosure under applicable Law.”
USA-GOV-ELV-0724 v2
8 10) Section 10.1 Audit is deleted and replaced with the following: “Audit. If Elavon or Member reasonably suspects that they are subject to a financial or reputational risk due to Company’s actions or omissions, Company authorizes Elavon and its agents to perform an audit or inspection of Company’s operations and records to confirm Company’s compliance with the Agreement upon reasonable advance notice, during normal business hours, and at Elavon’s expense (unless Elavon reasonably determines based on such audit that Company is not in compliance with the Agreement, in which case Company will bear the cost). Company will obtain and submit a copy of an audit from a third party acceptable to Elavon of the financial, physical security, information security, and operational facets of Company’s business at its expense when requested by Elavon. Further, Company acknowledges and agrees that the Payment Networks have the right to audit Company’s business to confirm compliance with the Payment Network Regulations. Company will maintain complete and accurate records of its performance under the Agreement. Company will execute and deliver to Elavon all documents Elavon reasonably deems necessary to verify Company’s compliance with Section 8.1.” 11) Section 10.2(b) Financial Information is deleted and replaced with the following:
“Financial Information. At Elavon’s request, Company will provide Elavon audited financial statements prepared by an independent certified public accountant selected by Company, or if Company is audited by a governmental authority, then Company will provide financial statements from such governmental authority. Within 120 days after the end of each fiscal year (or in the case of a government entity, when available), Company will furnish Elavon, as requested, a financial statement of profit and loss for the fiscal year and a balance sheet as of the end of the fiscal year, each audited as provided above. Company will also provide Elavon such interim financial statements and other information as Elavon may request from time to time.” 12) Section 13 Indemnification is deleted and replaced with the following four sections: “13(a). Company Responsibilities. As between Company and Elavon, Company will be responsible for, and at its own expense, defend itself against any suits, claims, losses, demands or damages arising out of (i) any sale or provision of goods or services resulting in a Transaction processed under the Agreement; (ii) Company’s breach of the Agreement; (iii) all use of any user ID and password other than by Elavon or Elavon’s third-party contractors; (iv) Company’s or its Service Providers’ gross negligence or willful misconduct; (v) Company’s or its Service Providers’ violation of Laws or Payment Network Regulations; or (vi) any personal injury or real or tangible personal property damage to the extent caused by Company or its Service Providers. Company will not make any claims against Elavon for any liabilities, claims losses, costs, expenses and demands of any kind or nature, arising out of or in connection with any of the foregoing suits, claims, losses, demands or damages. 13(b). Elavon Responsibilities. In addition to Elavon’s obligations in Section 13(c), Elavon will be responsible for and will at its own expense defend itself against any suits, claims, losses, demands or damages arising out of (i) Elavon’s breach of the Agreement; (ii) Elavon’s or its third party contractors’ gross negligence or willful misconduct; (iii) Elavon’s or its third party contractors’ violation of applicable Laws or Payment Network Regulations; (iv) Elavon’s alleged infringement or other violation of a U.S. or Canada patent, copyright or trademark of a third party by the Services in the form delivered or Company’s use thereof; or (v) any personal injury or real or tangible personal property damage to the extent caused by Elavon or its third party contractors. 13(c). Infringement Claims.
(i) Elavon will defend Company and its employees, officers, and agents in connection with claims, actions, demands or proceedings (made or threatened) brought by a third party, and will pay the final award of damages assessed against Company, its employees, officers or agents in a final judgment by a court of competent jurisdiction, including awarded costs, or any amount in settlement or compromise authorized by Elavon in writing, arising out of Elavon’s alleged infringement or other violation of a U.S. or Canada patent, copyright or trademark of a third party by the Services (but not Equipment) in the form delivered or Company’s use thereof (an “Infringement Claim”). (ii) If any part of the Services or the use of the Services becomes, or in Elavon’s opinion is likely to become, the subject of an Infringement Claim, and as a result of such Infringement Claim Company’s use of the Services may be enjoined or interfered with, then Elavon will, at its option and expense, either, and in addition to defending Company and paying the final amount of damages as provided for in this section, (1) obtain a license for Company to continue using the alleged infringing component(s) of the Services; (2) modify the alleged infringing component(s) of the Services to avoid the infringement in a manner that still permits the Services to perform in all material respects in accordance with the Agreement; or (3) replace the alleged infringing component(s) of the Services with compatible, functionally equivalent, and non-infringing component(s). Elavon will use commercially reasonable efforts to accomplish the remedies identified in this section in a manner that minimizes the disruption to Company’s business operations. If Elavon is not able to accomplish the above remedies within a commercially reasonable time frame and on commercially reasonable terms, Elavon may terminate the Agreement upon written notice to Company. Upon such termination, Elavon will promptly refund any fees paid for Services not performed as of the date of termination. (iii) Elavon will have no liability for any Infringement Claim to the extent caused by (1) access to or use of the Services other than as specified under the Agreement and the related Documentation, (2) combination or use of the Services with nonElavon products or services (whether or not provided to Company by Elavon), (3) any hardware, devices, software, services or other resources not provided by Elavon, (4) failure or refusal by Company to install, implement or use any Update or correction provided by Elavon, (5) modification or alteration of the Services by anyone other than Elavon without Elavon’s prior written consent, (6) Company’s goods or services, or (7) the negligence, gross negligence or willful misconduct of, or breach of the Agreement by, Company.
(iv) THIS SECTION 13(c) SETS FORTH THE EXCLUSIVE REMEDY OF COMPANY AND THE SOLE AND COMPLETE LIABILITY OF ELAVON WITH RESPECT TO ANY INFRINGEMENT CLAIMS.” USA-GOV-ELV-0724 v2
9 13(d). Procedure.
(i) If an Infringement Claim is subject to Elavon’s obligations in Section 13(c) of the Agreement, Company will:
(1) Provide Elavon prompt notice of the Infringement Claim (provided that any delay in notification will not relieve Elavon of its obligations under this Section 13(d) except to the extent that the delay materially impairs its ability to fully defend the Infringement Claim);
(2) Subject to Section 13(d)(ii), give Elavon the right to exercise exclusive control over the preparation and defense of the Infringement Claim; and
(3) Provide such assistance in connection with the defense and settlement of the Infringement Claim as Elavon may reasonably request, at Elavon’s expense. Elavon will not enter into any settlement that imposes any liability or obligation on Company, or contains any admission or acknowledgement of wrongdoing (whether in tort or otherwise), without Company’s prior written consent.
(ii) Company may join in the defense, with its own counsel, at its own expense.” 13) Section 16 Personal Guaranty is deleted.
14) Section 18.2 Jurisdiction and Venue; Governing Law is deleted. 15) Section 18.3 Exclusivity is deleted.
16) Section 18.5 Assignability is deleted and replaced with the following: “Assignability. Company will not assign the Agreement, directly, by operation of law, or by change of control of Company, without Elavon’s prior written consent. If Company nevertheless assigns the Agreement without Elavon’s consent, the Agreement will be binding on both the assignee and Company. Elavon will not transfer or assign the Agreement without the prior written consent of Company, provided that such consent will not be required for (i) the assignment or delegation to an affiliate of Elavon, or (ii) the assignment or delegation to any Person into or with which Elavon will merge or consolidate, or who may acquire substantially all of Elavon’s stock or assets.” 17) Section 18.6 Arbitration is deleted.
18) Section 18.9 Attorney’s Fees and Expenses is deleted. 19) Section 18.12 Amendments is deleted and replaced with the following: “Amendments. Except as otherwise provided in the Agreement, amendments to the Agreement will be in writing and signed by the parties. Notwithstanding the foregoing, Elavon and Member may amend or modify the Agreement, to the extent such changes are required by or attributable to changes in the Payment Network Regulations or other Laws, upon written notice to Company. Elavon or Member will inform Company of such a change in a periodic statement or other written notice, and such change will become effective at least 30 days after the issuance of the notice. Notwithstanding the previous sentence, changes to fees authorized by the Agreement will be effective upon notice to Company, unless a later effective date is provided.” 20) Schedule A, Section 1.5 Personal Guaranty is deleted 21) Schedule A, Section 1. 6 Jurisdiction and Venue; Governing Law is deleted. 22) Schedule A, Section 1.7 Arbitration is deleted.
23) Schedule B, Section 16 is hereby added:
“16. Either Elavon or Company may terminate the ECS services portion of the Agreement at any time upon thirty days’ prior written notice to the other party, and (ii) Elavon may, at its option, transition Company to a new program offered by Elavon that provides services similar to the ECS.”
USA-GOV-ELV-0724 v2
CONFIDENTIAL
NASPO VALUE POINT
STATE OF CALIFORNIA PARTICIPATING ADDENDUM 7-20-99-42
LOCAL AGENCY SUBSIDIARY AGREEMENT
This Local Agency Subsidiary Agreement (“Subsidiary Agreement”) is entered into by undersigned entity, organized under the laws of the State of California (“Local Agency”), and U.S. Bank. This Subsidiary Agreement shall become effective upon signing by U.S. Bank.
RECITALS
1. The State of California, Department of General Services (the “State”) and U.S. Bank entered into California Participating Addendum 7-20-99-42 effective January 1, 2021, as amended, supplemented or otherwise modified (the “Participating Addendum”) for the purpose of making available a Commercial Card Services Program (“Program”) as described in the Participating Addendum for use by state agencies and local agencies of the State;
2. Local Agencydesires to participate as a “Participating Agency” under the Program and Agreement, with sole liability for its own obligations it may incur under the Program and Participating Addendum; and
3. U.S. Bank has agreed to allow Local Agency to be bound under the Participating Addendum and participate in the Program as a “Participating Agency.”
AGREEMENT
Now, therefore, for and in consideration of the mutual promises contained in this Subsidiary Agreement and other good and valuable consideration, the receipt and sufficiency of which is acknowledged, Local Agency and U.S. Bank agree as follows:
1. DEFINITIONS. Unless otherwise stated in this Subsidiary Agreement, all capitalized terms shall have the same meaning as set forth in the Participating Addendum.
2. DESIGNATION. Local Agency is hereby designated as a “Participating Agency” under the Participating Addendum, and upon U.S. Bank’s execution of this Subsidiary Agreement (after completing its necessary due diligence) Local Agency shall be deemed a “Participating Agency” thereunder until Local Agency so elects to remove such designation or such designation is revoked as set forth in section 6 below. U.S.
Bank will take direction from such Local Agency in the issuing of Accounts (or the suspension of Accounts issued at Local Agency’s direction).
Confidential Page 1of 4
CONFIDENTIAL
3. LOCAL AGENCY REPRESENTATIONS, WARRANTIES AND COVENANTS. Local Agency:
3.1 Represents and warrants that it received a copy of the Participating Addendum;
3.2 Represents that it is a valid political subdivision of the State of California;
3.3 Represents and warrants that as of the date hereof that each of the representations and warranties made by the State in the Participating Addendum to U.S. Bank can be made by Local Agency without breach on the date hereof;
3.4 Represents and warrants that all financial and other information provided to U.S. Bank by or about Local Agency is true and correct;
3.5 Agrees to comply with and be bound by the terms and conditions of the Participating Addendum, including any future amendment regardless of whether Local Agency has received notice of such amendment;
3.6 Agrees it is liable for its own performance of the terms and conditions of the Participating Addendum (including as it may be amended from time to time) as if Local Agency signed the Participating Addendum, including for all obligations incurred by it or by any party issued an Account at its direction, but shall not be liable for any obligations incurred by the State or any other Local Agencies; and
3.7 Agrees that it may not assign or transfer its rights under this Subsidiary Agreement or the Participating Addendum without the express consent of U.S.
Bank.
4. LIABILITY FOR LOCAL AGENCY’S PERFORMANCE AND OBLIGATIONS. Local Agency agrees that it shall be solely liable for its performance of the terms and conditions of the Participating Addendum and this Subsidiary Agreement. The State shall have no liability for any obligations incurred under the Program by Local Agency and any Account holder designated by such Local Agency.
5. NOTICES. The notice address for Local Agency is:
Attn:
6. CHANGE OF CONTROL. Local Agency shall immediately notify U.S. Bank in writing of the occurrence of any event concerning Local Agency that (i) would prevent Local Agency from making the representations and warranties contained in section 3 at such time or (ii) results in a change of the legal name of such Local Agency. Local Agency shall promptly provide such additional details as reasonably requested by U.S. Bank regarding such event. At the election of U.S. Bank, the rights of Local Agency to be designated a “Participating Agency” under the Participating Addendum may be revoked based upon the notification provided by pursuant to section 6 (i) and this Subsidiary Agreement shall terminate.
Confidential Page 2of 4
CONFIDENTIAL
7. BINDING AGREEMENT. The representations, warranties and covenants of Local Agency in this Subsidiary Agreement constitute valid, binding and enforceable agreements of Local Agency. The execution of this Subsidiary Agreement and the performance of the obligations hereunder are within the power of Local Agency, have been authorized by all necessary action and do not constitute a breach of any agreement to which Local Agency is a party or is bound. Local Agency represents and warrants that this transaction is within the scope of the normal course of business and does not require further authorization for Local Agency to be duly bound by this Subsidiary Agreement. Any breach of the terms of this Subsidiary Agreement by the Local Agency shall also be a default under the Participating Addendum by the Local Agency giving rise on the part of U.S. Bank to exercise remedies outlined within the Participating Addendum based upon such default. A breach of the terms of the Subsidiary Agreement by Local Agency shall give rise to the right of U.S. Bank to terminate this Subsidiary Agreement in accordance with terms outlined within the Participating Addendum and remove Local Agency from the Program.
8. RATIFICATION, AMENDMENT AND TERMINATION OF AGREEMENT. Local Agency acknowledges that U.S. Bank and the State may from time to time enter into amendments of the Participating Addendum. No such amendments shall require the consent of, or notification to, Local Agency and Local Agency shall be bound by the terms contained in any such amendments. In the event of a termination of the Subsidiary Agreement, Local Agency acknowledges and agrees that Local Agency shall remain liable for all debts arising from the use of a card and/or account prior to the termination date and U.S. Bank will pay applicable rebates in accordance with the Participating Addendum.
Confidential Page 3of 4
CONFIDENTIAL
9. AUTHORIZATION AND EXECUTION. This Subsidiary Agreementmay be executed in several counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same document. This Subsidiary Agreement may be executed and delivered by the parties electronically, and fully executed electronic versions of this Subsidiary Agreement, or reproductions thereof, will be deemed to be original counterparts.
The signer(s) represents and warrants that (i) he or she is authorized by an applicable authority to enter into all transactions contemplated by this Subsidiary Agreement, and (ii) the signatures appearing on all supporting documents of authority are authentic.
LOCAL AGENCY
DATE:
Legal Name of Local Agency
(Signature of Authorized Individual)
(Printed Name of Authorized Individual)
(Printed Title of Authorized Individual)
U.S. BANK
DATE:
U.S. Bank National Association
Vice President
Confidential Page 4of 4
REPORT TO CITY COUNCIL
Approved by: Council Meeting of: December 18, 2024
_________________________________ Agenda Number: ___________ Giachino Chiaramonte, Chief of Police
_________________________________
Arnoldo Rodriguez, City Manager
SUBJECT:
Edward Byrne Memorial Justice Assistance Grant (JAG) Program 2024/25 Grant Award Acceptance
RECOMMENDATION:
Adopt a Resolution accepting the $20,491 grant award and amending the City’s 2024/25 Adopted Budget to reflect revenues and expenditures related to the grant SUMMARY:
The U.S. Department of Justice has awarded the City $20,491 of JAG funds for Fiscal Year 2024/25 (JAG 24). The funds will be used to support the enhancement of the City’s surveillance system.
These technological improvements will provide the Madera Police Department (MPD) with modern and reliable equipment, increasing investigatory capabilities and public safety.
DISCUSSION:
The U.S. Department of Justice provided $84 million to law enforcement agencies for the Fiscal Year 2024/25. Funds are awarded to state and local agencies on a formula basis. JAG funds support all criminal justice system components, from multijurisdictional drug and gang task forces to crime prevention and technology improvement. The City was notified that it was awarded $20,491 as part of the JAG program’s FY 2024 solicitation.
Staff requested the City Council’s (Council) approval to apply for JAG 24 with the recommendation to enhance the City’s surveillance system by purchasing surveillance cameras.
Staff holds consistent on its initial recommendation to purchase cameras. Staff expects to purchase 2 cameras at a cost of approximately $11,600 per camera.
B-10
VAllEY CENTRll
FINANCIAL IMPACT:
Acceptance of JAG 24 grant will result in $20,491 in Federal funding allocated to the City, specifically designated for the purchase of surveillance cameras. This grant presents a valuable opportunity to enhance our public safety infrastructure without burdening local taxpayers.
It is important to note that any variance in the cost of the cameras after utilizing the grant funds will be managed within the City’s adopted operating budget. Staff anticipates that MPD’s operating budget will effectively cover any potential overage, with projections indicating a maximum shortfall of no more than $2,800.
ALTERNATIVES:
The Council may suggest the City purchase different equipment using the grant funds.
Furthermore, the Council can request staff return with additional justification for the recommended purchase. Alternatively, the Council may refuse to accept the grant funds.
ATTACHMENTS:
1. Resolution accepting the grant and authorizing a budget amendment a. Exhibit A: Budget amendment
RESOLUTION NO. 24-______
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MADERA
AUTHORIZING THE ACCEPTANCE OF THE EDWARD BYRNE MEMORIAL JUSTICE PROGRAM 2024/25 GRANT IN THE AMOUNT OF $20,491
WHEREAS, the City of Madera Police Department is responsible for the safety of the citizens of the community; and
WHEREAS, the Madera Police Department spends considerable resources in its efforts to provide frontline law enforcement services to the community; and WHEREAS, the Council of the City of Madera supports the efforts of the Police Department to secure resources by the most efficient means possible; and WHEREAS, the Congress of the United States has allocated $20,491 through the Edward Byrne Memorial Justice Assistance Grant (JAG) program to the City of Madera to be used for front-line law enforcement services; and
WHEREAS, the City wishes to accept the 2024/25 JAG award and amend the City of Madera Fiscal Year 2024/2025 Adopted Budget to reflect revenues and expenditures related to the grant.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MADERA hereby resolves, finds, and orders as follows:
1. The foregoing recitals are true and correct.
2. The City Manager is authorized to execute all required documents for acceptance of the grant.
3. The City acceptsthe grant in the amount of $20,491 from the Edward Byrne Memorial Justice Program and approves the budget amendment reflecting the revenues and expenditures related to the grant, attached hereto as Exhibit A.
4. The City Clerk is authorized and directed to forward a copy of the resolution to the Director of Financial Services who is authorized to take such action as necessary to implement the terms of this resolution.
5. This resolution is effective immediately upon adoption. ******
ORG OBJECT
FUND CODE CODE PROJECT DESCRIPTION (+) (-)
PD GRANTS
4781 47810000 4434 JAG 24 Grants 20,491
4781 47810000 7000 JAG 24 Vehicles & Equipment 20,491
TOTALS 20,491 20,491
EXHIBIT A
CITY OF MADERA FISCAL YEAR 2024/25 BUDGET APPROPRIATION
FOR EDWARD BYRNE MEMORIAL GRANT PROGRAM
1 The new water main installation will require demolition of the old pipeline and replacement of new pipeline within UPRR right of way. The Agreement is a standard agreement prepared by UPRR that specifies City obligations and responsibilities with respect to the pipeline within their right of way and is attached as Exhibit 1.
The Agreement will give the City the right to construct, maintain and operate the water main pipeline across UPRR right of way. The City's contractor, when hired, will be required to execute a Contractor's Right of Entry Agreement and provide required insurance for the work. The City will be responsible for all UPRR expenses in connection with the project, including engineering review, construction, inspection, flagging and any other construction related costs. The agreement specifies the City will reimburse UPRR for 100 percent of their actual costs.
The license fee for the Agreement is a one-time fee of $10,000. The Agreement requires construction observation during the installation of the pipeline and the cost for this observation is estimated at $10,000. A warrant request for the Agreement fees will be prepared upon approval of the Agreement. Construction observation costs will be incurred during the construction phase of the project.
FINANCIAL IMPACT:
There will be no impact to the City's General Fund. Funding for the License Fee and reimbursement of UPRR construction costs will come from project funds already programmed from Water Enterprise funding sources.
ALTERNATIVES:
Should Council not approve the Agreement, the water main in the Fresno River may not be upgraded and portions of the exposed pipeline could be damaged by future river streambed erosion or vandalism.
ATTACHMENTS:
1. Council Resolution
a. Exhibit 1 – Pipeline Crossing Agreement
2. Vicinity Map
Attachment 1
Resolution
RESOLUTION NO. 24-_____
A RESOLUTION OF THE COUNCIL OF THE CITY OF MADERA, CALIFORNIA
APPROVING A PIPELINE CROSSING AGREEMENT BETWEEN THE UNION
PACIFIC RAILROAD COMPANY AND THE CITY OF MADERA FOR THE
WATER MAIN REPLACEMENT ACROSS THE FRESNO RIVER
WHEREAS, the City Council of the City of Madera has approved the Water Main Replacement under the Fresno River between Riverside Drive and Gateway Drive (the Project); and
WHEREAS, a Pipeline Crossing Agreement has been prepared by the Union Pacific Railroad (UPRR) Company that specifies the obligations, responsibilities, and costs of the City of Madera for the right to construct, operate and maintain a water main, and a copy of the Agreement is on file with the City Clerk.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MADERA hereby resolves, finds, determines and orders as follows:
1. The above recitals are true and correct.
2. The Pipeline Crossing Agreement as described above and attached hereto as Exhibit 1 is necessary for the carrying out of the Project and are hereby approved.
3. This resolution is effective immediately.
*******
Exhibit 1
UPRR Pipeline Crossing Agreement
Union Pacific Railroad Real Estate 1400 Douglas Street Stop 1690 Omaha, Nebraska 68179-1690 fx. (402) 501-0340 Pipeline Crossing 080808 Project No. 0791294
Last Modified: 06/05/18
Form Approved, AVP-Law
PIPELINE CROSSING
AGREEMENT
Mile Post: 183.25, Fresno Subdivision
Location: Madera, Madera County, California
THIS AGREEMENT (“Agreement”) is made and entered into as of July 31, 2024, (“Effective Date”) by and between UNION PACIFIC RAILROAD COMPANY, a Delaware corporation, (“Licensor”) and CITY OF MADERA, to be addressed at 428 E Yosemite Avenue, Madera, California 93637 (“Licensee”).
IT IS MUTUALLY AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS:
Article 1. LICENSOR GRANTS RIGHT.
A. In consideration of the license fee to be paid by Licensee set forth below and in further consideration of the covenants and agreements to be performed by Licensee, Licensor hereby grants to Licensee the right to construct and thereafter, during the term hereof, maintain and operate one (1) sixteen inch (16") ductile iron underground water pipeline crossing only, including any appurtenances required for the operation of said pipeline (collectively, "Licensee's Facilities") across Licensor’s real property, trackage, or other facilities located in Madera, Madera County, State of California ("Railroad Property"). The specific specifications and limited purpose for Licensee's Facilities on, along, across and under Railroad Property are described in and shown on the Print and Specifications dated February 22, 2024, attached hereto as Exhibit A and made a part hereof.
B. Licensee represents and warrants that Licensee's Facilities will (i) only be used for one (1) sixteen inch (16") ductile iron underground water pipeline crossing, and (ii) not be used to convey any other substance, any fiber optic cable, or for any other use, whether such use is currently technologically possible, or whether such use may come into existence during the life of this Agreement.
C. Licensee acknowledges that if it or its contractor provides Licensor with digital imagery depicting Licensee's Facilities ("Digital Imagery"), Licensee authorizes Licensor to use the Digital Imagery in preparing Exhibit A. Licensee represents and warrants that through a license or otherwise, it has the right to use the Digital Imagery and to permit Licensor to use the Digital Imagery in said manner.
Article 2. LICENSE FEE.
Upon execution of this Agreement, the Licensee shall pay to the Licensor a one-time License Fee of Ten Thousand Dollars ($10,000.00).
Article 3. TERM.
This Agreement shall take effect as of the Effective Date first herein written and shall continue in full force and effect until terminated as provided in the "TERMINATION; REMOVAL OF LICENSEE’S FACILITIES" Section of Exhibit B.
Union Pacific Railroad Real Estate 1400 Douglas Street Stop 1690 Omaha, Nebraska 68179-1690 fx. (402) 501-0340 Article 4. LICENSEE'S COMPLIANCE WITH GENERAL TERMS.
Licensee represents and warrants that all work on Licensee's Facilities performed by Licensee or its contractors will strictly comply with all terms and conditions set forth herein, including the General Terms and Conditions, attached hereto as Exhibit B and made a part hereof.
Article 5. INSURANCE.
A. During the term of this Agreement, Licensee shall fully comply or cause its contractor(s) to fully comply with the insurance requirements described in Exhibit C, attached hereto and made a part hereof. Upon request only, Licensee shall send copies of all insurance documentation (e.g., certificates, endorsements, etc.) to Licensor at the address listed in the "NOTICES" Section of this Agreement.
B. If Licensee is subject to statute(s) limiting its insurance liability and/or limiting its ability to obtain insurance in compliance with Exhibit C of this Agreement, those statutes shall apply.
Article 6. DEFINITION OF LICENSEE.
For purposes of this Agreement, all references in this Agreement to Licensee will include Licensee's contractors, subcontractors, officers, agents and employees, and others acting under its or their authority (collectively, a "Contractor"). If a Contractor is hired by Licensee to perform any work on Licensee's Facilities (including initial construction and subsequent relocation, maintenance, and/or repair work), then Licensee shall provide a copy of this Agreement to its Contractor(s) and require its Contractor(s) to comply with all terms and conditions of this Agreement, including the indemnification requirements set forth in the "INDEMNITY" Section of Exhibit B. Licensee shall require any Contractor to release, defend, and indemnify Licensor to the same extent and under the same terms and conditions as Licensee is required to release, defend, and indemnify Licensor herein.
Article 7. ATTORNEYS’ FEES, EXPENSES, AND COSTS.
If litigation or other court action or similar adjudicatory proceeding is undertaken by Licensee or Licensor to enforce its rights under this Agreement, all fees, costs, and expenses, including, without limitation, reasonable attorneys’ fees and court costs, of the prevailing Party in such action, suit, or proceeding shall be reimbursed or paid by the Party against whose interest the judgment or decision is rendered. The provisions of this Article shall survive the termination of this Agreement.
Article 8. WAIVER OF BREACH.
The waiver by Licensor of the breach of any condition, covenant or agreement herein contained to be kept, observed and performed by Licensee shall in no way impair the right of Licensor to avail itself of any remedy for any subsequent breach thereof.
Article 9. ASSIGNMENT.
A. Licensee shall not assign this Agreement, in whole or in part, or any rights herein granted, without the written consent of Licensor, which must be requested in writing by Licensee. Any assignment or attempted transfer of this Agreement or any of the rights herein granted, whether voluntary, by operation of law, or otherwise, without Licensor's written consent, will be absolutely void and may result in Licensor's termination of this Agreement pursuant to the "TERMINATION; REMOVAL OF LICENSEE'S FACILITIES" Section of Exhibit B.
B. Upon Licensor's written consent to any assignment, this Agreement will be binding upon and inure to the benefit of the parties thereto, successors, heirs, and assigns, executors, and administrators.
Union Pacific Railroad Real Estate 1400 Douglas Street Stop 1690 Omaha, Nebraska 68179-1690 fx. (402) 501-0340 Article 10. SEVERABILITY.
Any provision of this Agreement which is determined by a court of competent jurisdiction to be invalid or unenforceable shall be invalid or unenforceable only to the extent of such determination, which shall not invalidate or otherwise render ineffective any other provision of this Agreement.
Article 11. NOTICES.
Except Licensee's commencement of work notice(s) required under Exhibit B, all other notices required by this Agreement must be in writing, and (i) personally served upon the business address listed below ("Notice Address"), (ii) sent overnight via express delivery by a nationally recognized overnight delivery service such as Federal Express Corporation or United Parcel Service to the Notice Address, or (iii) by certified mail, return receipt requested to the Notice Address. Overnight express delivery notices will be deemed to be given upon receipt. Certified mail notices will be deemed to be given three (3) days after deposit with the United States Postal Service.
If to Licensor: Union Pacific Railroad Company
Attn: Analyst – Real Estate Utilities (Project No. 0791294) 1400 Douglas Street, MS 1690
Omaha, Nebraska 68179
If to Licensee:CITY OF MADERA
428 E Yosemite Avenue
Madera, California 93637
Article 12. SPECIAL PROVISION – CONSTRUCTION OBSERVATION.
Licensor requires Licensee to provide monitoring of tracks and construction observation through Licensor approved observer named below during all construction and installation work.
Licensee is to directly coordinate services with the named inspector:
Railpros Field Services
Email: [email protected]
Phone (682)223-5271
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first herein written.
UNION PACIFIC RAILROAD COMPANY CITY OF MADERA
By: __________________________________ By: __________________________________ Thomas Leddy
Mgr II Real Estate - Contracts
Name Printed: __________________________
Title: _________________________________
Union Pacific Railroad Real Estate 1400 Douglas Street Stop 1690 Omaha, Nebraska 68179-1690 fx. (402) 501-0340 Pipeline Crossing 06/05/18
Form Approved, AVP Law
EXHIBIT B
GENERAL TERMS AND CONDITIONS
Section 1. LIMITATION AND SUBORDINATION OF RIGHTS GRANTED.
A. The foregoing grant is subject and subordinate to the prior and continuing right and obligation of Licensor to use and maintain its entire property including the right and power of Licensor to construct, maintain, repair, renew, use, operate, change, modify or relocate railroad tracks, signal, communication, fiber optics, or other wirelines, pipelines and other facilities upon, along or across any or all parts of its property, all or any of which may be freely done at any time or times by Licensor without liability to Licensee or to any other party for compensation or damages.
B. The foregoing grant is also subject to all outstanding superior rights (including those in favor of licensees and lessees of Railroad Property) and the right of Licensor to renew and extend the same, and is made without covenant of title or for quiet enjoyment. It shall be Licensee's sole obligation to obtain such additional permission, license and grants necessary on account of any such existing rights.
Section 2. ENGINEERING REQUIREMENTS; PERMITS.
A. Licensee's Facilities will be designed, constructed, operated, maintained, repaired, renewed, modified, reconstructed, removed, or abandoned in place on Railroad Property by Licensee or its contractor to Licensor's satisfaction and in strict conformity with: (i) Licensor’s current engineering standards and specifications, including those for shoring and cribbing to protect Licensor's railroad operations and facilities ("UP Specifications"), except for variances approved in advance in writing by Licensor’s Assistant Vice President Engineering – Design or its authorized representative ("UP Engineering Representative"); (ii) such other additional safety standards as Licensor, in its sole discretion, elects to require, including, without limitation, American Railway Engineering and Maintenance-of-Way Association ("AREMA") standards and guidelines (collectively, "UP Additional Requirements"); and (iii) all applicable laws, rules, and regulations, including any applicable Federal Railroad Administration and Federal Energy Regulatory Commission regulations and enactments (collectively, "Laws"). If there is any conflict between UP Specifications, UP Additional Requirements, and Laws, the most restrictive will apply.
B. Licensee shall keep the soil over Licensee's Facilities thoroughly compacted, and maintain the grade over and around Licensee's Facilities even with the surface of the adjacent ground.
C. If needed, Licensee shall secure, at Licensee's sole cost and expense, any and all necessary permits required to perform any work on Licensee's Facilities.
Section 3. NOTICE OF COMMENCEMENT OF WORK; EMERGENCIES.
A. Licensee and its contractors are strictly prohibited from commencing any work associated with Licensee's Facilities without Licensor's written approval that the work will be in strict compliance with the "ENGINEERING REQUIREMENTS; PERMITS" Section of this Exhibit B. Upon Licensor's approval, Licensee shall contact both of Licensor's field representatives ("Licensor's Field Representatives") at least ten (10) days before commencement of any work on Licensee's Facilities.
B. Licensee shall not commence any work until: (1) Licensor has determined whether flagging or other special protective or safety measures ("Safety Measures") are required for performance of the work pursuant to the "FLAGGING" Section of this Exhibit B and provided Licensee written Union Pacific Railroad Real Estate 1400 Douglas Street Stop 1690 Omaha, Nebraska 68179-1690 fx. (402) 501-0340 authorization to commence work; and (2) Licensee has complied with the "PROTECTION OF FIBER OPTIC CABLE SYSTEMS" Section of this Exhibit B.
C. If, at any time, an emergency arises involving Licensee's Facilities, Licensee or its contractor shall immediately contact Licensor's Response Management Communications Center at (888) 877-7267.
Section 4. FLAGGING.
A. Following Licensee's notice to Licensor's Field Representatives required under the "NOTICE OF COMMENCEMENT OF WORK; EMERGENCIES" Section of this Exhibit B, Licensor shall inform Licensee if Safety Measures are required for performance of the work by Licensee or its contractor on Railroad Property. If Safety Measures are required, no work of any kind may be performed by Licensee or its contractor(s) until arrangements for the Safety Measures have been made and scheduled. If no Safety Measures are required, Licensor will give Licensee written authorization to commence work.
B. If any Safety Measures are performed or provided by Licensor, including but not limited to flagging, Licensor shall bill Licensee for such expenses incurred by Licensor, unless Licensor and a federal, state, or local governmental entity have agreed that Licensor is to bill such expenses to the federal, state, or local governmental entity. Additional information regarding the submission of such expenses by Licensor and payment thereof by Licensee can be found in the "LICENSEE’S PAYMENT OF EXPENSES" Section of this Exhibit B. If Licensor performs any Safety Measures, Licensee agrees that Licensee is not relieved of any of responsibilities or liabilities set forth in this Agreement.
C. For flagging, the rate of pay per hour for each flagger will be the prevailing hourly rate in effect for an eight-hour day for the class of flagmen used during regularly assigned hours and overtime in accordance with Labor Agreements and Schedules in effect at the time the work is performed. In addition to the cost of such labor, a composite charge for vacation, holiday, health and welfare, supplemental sickness, Railroad Retirement and unemployment compensation, supplemental pension, Employees Liability and Property Damage, and Administration will be included, computed on actual payroll. The composite charge will be the prevailing composite charge in effect at the time the work is performed. One and one-half times the current hourly rate is paid for overtime, Saturdays and Sundays, and two and one-half times current hourly rate for holidays. Wage rates are subject to change, at any time, by law or by agreement between Licensor and its employees, and may be retroactive as a result of negotiations or a ruling of an authorized governmental agency. Additional charges on labor are also subject to change. If the wage rate or additional charges are changed, Licensee (or the governmental entity, as applicable) shall pay on the basis of the new rates and charges.
D. Reimbursement to Licensor will be required covering the full eight-hour day during which any flagger is furnished, unless the flagger can be assigned to other railroad work during a portion of such day, in which event reimbursement will not be required for the portion of the day during which the flagger is engaged in other railroad work. Reimbursement will also be required for any day not actually worked by the flaggers following the flaggers' assignment to work on the project for which Licensor is required to pay the flaggers and which could not reasonably be avoided by Licensor by assignment of such flaggers to other work, even though Licensee may not be working during such time.
When it becomes necessary for Licensor to bulletin and assign an employee to a flagging position in compliance with union collective bargaining agreements, Licensee must provide Licensor a minimum of five (5) days notice prior to the cessation of the need for a flagger. If five (5) days notice of cessation is not given, Licensee will still be required to pay flagging charges for the days the flagger was scheduled, even though flagging is no longer required for that period. An additional ten (10) days notice must then be given to Licensor if flagging services are needed again after such five day cessation notice has been given to Licensor.
Union Pacific Railroad Real Estate 1400 Douglas Street Stop 1690 Omaha, Nebraska 68179-1690 fx. (402) 501-0340 Section 5. SAFETY.
A. Safety of personnel, property, rail operations and the public is of paramount importance in the prosecution of any work on Railroad Property performed by Licensee or its contractor, and takes precedence over any work on Licensee's Facilities to be performed Licensee or its contractors. Licensee shall be responsible for initiating, maintaining and supervising all safety operations and programs in connection with any work on Licensee's Facilities. Licensee and its contractor shall, at a minimum comply, with Licensor's then current safety standards located at the below web address ("Licensor's Safety Standards") to ensure uniformity with the safety standards followed by Licensor's own forces.
As a part of Licensee's safety responsibilities, Licensee shall notify Licensor if it determines that any of Licensor's Safety Standards are contrary to good safety practices. Licensee and its contractor shall furnish copies of Licensor's Safety Standards to each of its employees before they enter Railroad Property.
Union Pacific Current Safety Requirements
B. Licensee shall keep the job site on Railroad Property free from safety and health hazards and ensure that their employees are competent and adequately trained in all safety and health aspects of the work.
C. Licensee represents and warrants that all parts of Licensee's Facilities within and outside of the limits of Railroad Property will not interfere whatsoever with the constant, continuous, and uninterrupted use of the tracks, property, and facilities of Licensor, and nothing shall be done or suffered to be done by Licensee at any time that would in any manner impair the safety thereof.
D. Licensor's operations and work performed by Licensor’s personnel may cause delays in Licensee's or its contractor's work on Licensee's Facilities. Licensee accepts this risk and agrees that Licensor shall have no liability to Licensee or any other person or entity for any such delays. Licensee must coordinate any work on Railroad Property by Licensee or any third party with Licensor's Field Representatives in strict compliance with the "NOTICE OF COMMENCEMENT OF WORK; EMERGENCIES" Section of this Exhibit B.
E. Licensor shall have the right, if it so elects, to provide any support it deems necessary for the safety of Licensor's operations and trackage during Licensee's or its contractor's construction, maintenance, repair, renewal, modification, relocation, reconstruction, or removal of Licensee's Facilities. In the event Licensor provides such support, Licensor shall invoice Licensee, and Licensee shall pay Licensor as set forth in the "LICENSEE'S PAYMENT OF EXPENSES" Section of this Exhibit B.
F. Licensee may use unmanned aircraft systems ("UAS") to inspect Licensee's Facilities only upon the prior authorization from and under the direction of Licensor's Field Representatives.
Licensee represents and warrants that its use of UAS on Railroad Property will comply with Licensor's then-current Unmanned Aerial Systems Policy and all applicable laws, rules and regulations, including any applicable Federal Aviation Administration regulations and enactments pertaining to UAS.
Section 6. PROTECTION OF FIBER OPTIC CABLE SYSTEMS.
Fiber optic cable systems may be buried on Railroad Property. Protection of the fiber optic cable systems is of extreme importance since any break could disrupt service to users resulting in business interruption and loss of revenue and profits. In addition to the notifications required under the "NOTICE OF COMMENCEMENT OF WORK; EMERGENCIES" Section of this Exhibit B, Licensee shall visit up.com/CBUD to complete and submit the required form to determine if fiber optic cable is buried anywhere on Railroad Property to be used by Licensee. If it is, Licensee shall telephone the telecommunications company(ies) involved, and arrange for a cable locator, make arrangements for relocation or other protection of the fiber optic cable, all at Licensee’s expense, and will not commence any work on Railroad Property until all such protection or relocation has been completed.
Union Pacific Railroad Real Estate 1400 Douglas Street Stop 1690 Omaha, Nebraska 68179-1690 fx. (402) 501-0340 Section 7. LICENSEE'S PAYMENT OF EXPENSES.
A. Licensee shall bear the entire cost and expense of the design, construction, maintenance, modification, reconstruction, repair, renewal, revision, relocation, or removal of Licensee's Facilities.
B. Licensee shall fully pay for all materials joined, affixed to and labor performed on Railroad Property in connection with the construction, maintenance, modification, reconstruction, repair, renewal, revision, relocation, or removal of Licensee's Facilities, and shall not permit or suffer any mechanic’s or materialman’s lien of any kind or nature to be enforced against the property for any work done or materials furnished thereon at the instance or request or on behalf of Licensee. Licensee shall promptly pay or discharge all taxes, charges, and assessments levied upon, in respect to, or on account of Licensee's Facilities, to prevent the same from becoming a charge or lien upon any property of Licensor, and so that the taxes, charges, and assessments levied upon or in respect to such property shall not be increased because of the location, construction, or maintenance of Licensee's Facilities or any improvement, appliance, or fixture connected therewith placed upon such property, or on account of Licensee’s interest therein. Where such tax, charge, or assessment may not be separately made or assessed to Licensee but shall be included in the assessment of the property of Licensor, then Licensee shall pay to Licensor an equitable proportion of such taxes determined by the value of Licensee’s property upon property of Licensor as compared with the entire value of such property.
C. As set forth in the "FLAGGING" Section of this Exhibit B, Licensor shall have the right, if it so elects, to provide any Safety Measures Licensor deems necessary for the safety of Licensor's operations and trackage during Licensee's or its contractor's construction, maintenance, modification, reconstruction, repair, renewal, revision, relocation, or removal of Licensee's Facilities, including, but not limited to supervision, inspection, and flagging services. In the event Licensor provides such Safety Measures, Licensor shall submit an itemized invoice to Licensee's notice recipient listed in the "NOTICES" Article of this Agreement. Licensee shall pay to Licensor the total amount listed on such invoice within thirty (30) days of Licensee's receipt of such invoice.
Section 8. MODIFICATIONS TO LICENSEE'S FACILITIES.
A. This grant is subject to Licensor's safe and efficient operation of its railroad, and continued use and improvement of Railroad Property (collectively, "Railroad's Use"). Accordingly, Licensee shall, at its sole cost and expense, modify, reconstruct, repair, renew, revise, relocate, or remove (individually, "Modification", or collectively, "Modifications") all or any portion of Licensee's Facilities as Licensor may designate or identify, in its sole discretion, in the furtherance of Railroad's Use.
B. Upon any Modification of all or any portion of Licensee's Facilities to another location on Railroad Property, Licensor and Licensee shall execute a Supplemental Agreement to this Pipeline Agreement to document the Modification(s) to Licensee's Facilities on Railroad Property. If the Modifications result in Licensee's Facilities moving off of Railroad Property, this Agreement will terminate upon Licensee's completion of such Modification(s) and all requirements contained within the "TERMINATION; REMOVAL OF LICENSEE’S FACILITIES" Section of this Exhibit B. Any such Modification(s) off of Railroad Property will not release Licensee from any liability or other obligation of Licensee arising prior to and upon completion of any such Modifications to the Licensee's Facilities.
Section 9. RESTORATION OF RAILROAD PROPERTY.
In the event Licensee, in any manner moves or disturbs any property of Licensor in connection with the construction, maintenance, modification, reconstruction, repair, renewal, revision, relocation, or removal of Licensee's Facilities, then, Licensee shall, as soon as possible and at Licensee’s sole cost Union Pacific Railroad Real Estate 1400 Douglas Street Stop 1690 Omaha, Nebraska 68179-1690 fx. (402) 501-0340 and expense, restore Licensor’s property to the same condition as the same were before such property was moved or disturbed.
Section 10. INDEMNITY.
A. Definitions. As used in this Section:
1. "Licensor" includes Licensor, its affiliates, its and their officers, directors, agents and employees, and other railroad companies using Railroad Property at or near the location of Licensee’s installation and their officers, directors, agents, and employees.
2. "Licensee" includes Licensee and its agents, contractors, subcontractors, subsubcontractors, employees, officers, and directors, or any other person or entity acting on its behalf or under its control.
3. "Loss" includes claims, suits, taxes, loss, damages (including punitive damages, statutory damages, and exemplary damages), costs, charges, assessments, judgments, settlements, liens, demands, actions, causes of action, fines, penalties, interest, and expenses of any nature, including court costs, reasonable attorneys’ fees and expenses, investigation costs, and appeal expenses.
B. Licensee shall release, defend, indemnify, and hold harmless Licensor from and against any and all Loss, even if groundless, fraudulent, or false, that directly or indirectly arises out of or is related to Licensee’s construction, maintenance, modification, reconstruction, repair, renewal, revision, relocation, removal, presence, use, or operation of Licensee's Facilities, including, but not limited to, any actual or alleged:
1. Bodily harm or personal injury (including any emotional injury or disease) to, or the death of, any person(s), including, but not limited to, Licensee, Licensor, any telecommunications company, or the agents, contractors, subcontractors, sub-subcontractors, or employees of the foregoing;
2. Damage to or the disturbance, loss, movement, or destruction of Railroad Property, including loss of use and diminution in value, including, but not limited to, any telecommunications system(s) or fiber optic cable(s) on or near Railroad Property, any property of Licensee or Licensor, or any property in the care, custody, or control of Licensee or Licensor;
3. Removal of person(s) from Railroad Property;
4. Any delays or interference with track or Railroad’s Use caused by Licensee's activity(ies) on Railroad Property, including without limitation the construction, maintenance, modification, reconstruction, repair, renewal, revision, relocation, or removal of Licensee's Facilities or any part thereof, any activities, labor, materials, equipment, or machinery in conjunction therewith;
5. Right(s) or interest(s) granted pursuant to this Agreement;
6. Contents escaping from Licensee's Facilities, including without limitation any actual or alleged pollution, contamination, breach, or environmental Loss;
Union Pacific Railroad Real Estate 1400 Douglas Street Stop 1690 Omaha, Nebraska 68179-1690 fx. (402) 501-0340
7. Licensee’s breach of this Agreement or failure to comply with its provisions, including, but not limited to, any violation or breach by Licensee of any representations and warranties Licensee has made in this Agreement; and
8. Violation by Licensee of any law, statute, ordinance, governmental administrative order, rule, or regulation, including without limitation all applicable Federal Railroad Administration regulations.
C. THE FOREGOING OBLIGATIONS SHALL APPLY TO THE FULLEST EXTENT
PERMITTED BY LAW FOR THE BENEFIT OF LICENSOR TO LOSSES CAUSED BY, ARISING
FROM, RELATING TO, OR RESULTING FROM, IN WHOLE OR IN PART, THE NEGLIGENCE OF
LICENSOR, AND SUCH NEGLIGENCE OF LICENSOR SHALL NOT LIMIT, DIMINISH, OR PRECLUDE LICENSEE’S OBLIGATIONS TO LICENSOR IN ANY RESPECT.
NOTWITHSTANDING THE FOREGOING, SUCH OBLIGATION TO INDEMNIFY LICENSOR
SHALL NOT APPLY TO THE EXTENT THE LOSS IS CAUSED BY THE SOLE, ACTIVE AND
DIRECT NEGLIGENCE, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT OF LICENSOR AS DETERMINED IN A FINAL JUDGMENT BY A COURT OF COMPETENT JURISDICTION.
Section 11. TERMINATION; REMOVAL OF LICENSEE'S FACILITIES.
A. If Licensee does not use the right herein granted on Licensee's Facilities for one (1) year, or if Licensee continues in default in the performance of any provision of this Agreement for a period of thirty (30) days after written notice from Licensor to Licensee specifying such default, Licensor may, at its sole discretion, terminate this Agreement by written notice to Licensee at the address listed in the "NOTICES" Article of this Agreement. This Agreement will not terminate until Licensee complies with Paragraphs "C" and "D" of this Section found below.
B. In addition to the provisions of Paragraph "A" above, this Agreement may be terminated by written notice given by either party, without cause, upon thirty (30) days written notice to the non-terminating party at the address listed in the "NOTICES" Article of this Agreement. This Agreement will not terminate until Licensee complies with Paragraphs "C" and "D" of this Section found below.
C. Prior to the effective date of any termination described in this Section, Licensee shall submit an application to Licensor's online Utility Contracts System at this link for Licensee's removal, or if applicable, abandonment in place of Licensee's Facilities located on Railroad Property ("Removal/Abandonment Work"). Upon the UP Engineering Representative's approval of Licensee's application for the Removal/Abandonment Work, Licensor and Licensee shall execute a separate consent document that will govern Licensee's performance of the Removal/Abandonment Work from those portions of Railroad Property not occupied by roadbed and/or trackage ("Consent Document"). Licensee shall then restore the impacted Railroad Property to the same or reasonably similar condition as it was prior to Licensee's installation of Licensee's Facilities. For purposes of this Section, Licensee's (i) performance of the Removal/Abandonment Work, and (ii) restoration work will hereinafter be collectively referred to as the "Restoration Work".
D. Following Licensee's completion of the Restoration Work, Licensee shall provide a written certification letter to Licensor at the address listed in the "NOTICES" Article of this Agreement which certifies that the Restoration Work has been completed in accordance with the Consent Document. Licensee shall report to governmental authorities, as required by law, and notify Licensor immediately if any environmental contamination is discovered during Licensee's performance of the Restoration Work. Upon discovery, the Licensee shall initiate any and all removal, remedial and restoration actions that are necessary to restore the property to its original, uncontaminated condition.
Licensee shall provide written certification to Licensor at the address listed in the "NOTICES" Article of this Agreement that environmental contamination has been remediated and the property has been Union Pacific Railroad Real Estate 1400 Douglas Street Stop 1690 Omaha, Nebraska 68179-1690 fx. (402) 501-0340 restored in accordance with Licensor's requirements. Upon Licensor's receipt of Licensee's restoration completion certifications, this Agreement will terminate.
E. In the event that Licensee fails to complete any of the Restoration Work, Licensor may, but is not obligated, to perform the Restoration Work. Any such work actually performed by Licensor will be at the cost and expense of Licensee. In the event that Licensor performs any of the Restoration Work, Licensee shall release Licensor from any and all Loss (defined in the "INDEMNITY" Section of this Exhibit B) arising out of or related to Licensor's performance of the Restoration Work.
F. Termination of this Agreement for any reason will not affect any of rights or obligations of the parties which may have accrued, or liabilities or Loss (defined in the "INDEMNITY" Section of this Exhibit B), accrued or otherwise, which may have arisen prior to such termination.
Union Pacific Railroad Real Estate 1400 Douglas Street Stop 1690 Omaha, Nebraska 68179-1690 fx. (402) 501-0340
EXHIBIT C
INSURANCE REQUIREMENTS
In accordance with Article 5 of this Agreement, Licensee shall (1) procure and maintain at its sole cost and expense, or (2) require its Contractor(s) to procure and maintain, at their sole cost and expense, the following insurance coverage:
A. Commercial General Liability Insurance. Commercial general liability (CGL) with a limit of not less than $2,000,000 each occurrence and an aggregate limit of not less than $4,000,000.
CGL insurance must be written on ISO occurrence form CG 00 01 12 04 (or a substitute form providing equivalent coverage).
The policy must also contain the following endorsement, WHICH MUST BE STATED ON THE CERTIFICATE OF INSURANCE:
• Contractual Liability Railroads ISO form CG 24 17 10 01 (or a substitute form providing equivalent coverage) showing "Union Pacific Railroad Company Property" as the Designated Job Site.
B. Business Automobile Coverage Insurance. Business auto coverage written on ISO form CA 00 01 10 01 (or a substitute form providing equivalent liability coverage) with a limit of not less $2,000,000 for each accident, and coverage must include liability arising out of any auto (including owned, hired, and non-owned autos).
The policy must contain the following endorsements, WHICH MUST BE STATED ON THE CERTIFICATE OF INSURANCE:
• "Coverage For Certain Operations In Connection With Railroads" ISO form CA 20 70 10 01 (or a substitute form providing equivalent coverage) showing "Union Pacific Railroad Company Property" as the Designated Job Site.
C. Workers' Compensation and Employers' Liability Insurance. Coverage must include but not be limited to:
• Licensee’s statutory liability under the workers' compensation laws of the state(s) affected by this Agreement.
• Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 disease policy limit $500,000 each employee.
If Licensee is self-insured, evidence of state approval and excess workers' compensation coverage must be provided. Coverage must include liability arising out of the U. S. Longshoremen's and Harbor Workers' Act, the Jones Act, and the Outer Continental Shelf Land Act, if applicable.
D. Environmental Liability Insurance. Environmental Legal Liability Insurance (ELL) applicable to bodily injury, property damage, including loss of use of damaged property or of property that has not been physically injured or destroyed, cleanup costs, and defense, including costs and expenses incurred in the investigation, defense, or settlement of claims, or compliance with statute, all in connection with any loss arising from the insured’s performance under this Agreement. Except with respect to the limits of insurance, and any rights or duties specifically assigned to the first named insured, this insurance must apply as if each named insured were the only named insured; and separately to the additional insured against which claim is made or suit is brought. Coverage shall be maintained in an amount of at least $2,000,000 per loss, with an annual aggregate of at least $4,000,000.
Licensee warrants that any retroactive date applicable to ELL insurance coverage under the policy is the same as or precedes the Effective Date of this Agreement, and that continuous coverage Union Pacific Railroad Real Estate 1400 Douglas Street Stop 1690 Omaha, Nebraska 68179-1690 fx. (402) 501-0340 will be maintained for a period of five (5) years beginning from the time the work under this Agreement is completed or if coverage is cancelled for any reason the policies extended discovery period, if any, will be exercised for the maximum time allowed.
E. Railroad Protective Liability Insurance. Licensee must maintain for the duration of work "Railroad Protective Liability" insurance written on ISO occurrence form CG 00 35 12 04 (or a substitute form providing equivalent coverage) on behalf of Licensor only as named insured, with a limit of not less than $2,000,000 per occurrence and an aggregate of $6,000,000. The definition of "JOB LOCATION" and "WORK" on the declaration page of the policy shall refer to this Agreement and shall describe all WORK or OPERATIONS performed under this Agreement. Notwithstanding the foregoing, Licensee does not need Railroad Protective Liability Insurance after its initial construction work is complete and all excess materials have been removed from Licensor's property; PROVIDED, however, that Licensee shall procure such coverage for any subsequent maintenance, repair, renewal, modification, reconstruction, or removal work on Licensee's Facilities.
F. Umbrella or Excess Insurance. If Licensee utilizes umbrella or excess policies, and these policies must "follow form" and afford no less coverage than the primary policy.
Other Requirements
G. All policy(ies) required above (except business automobile, workers' compensation and employers' liability) must include Licensor as "Additional Insured" using ISO Additional Insured Endorsement CG 20 26 (or substitute form(s) providing equivalent coverage). The coverage provided to Licensor as additional insured shall not be limited by Licensee’s liability under the indemnity provisions of this Agreement. BOTH LICENSOR AND LICENSEE EXPECT THAT LICENSOR
WILL BE PROVIDED WITH THE BROADEST POSSIBLE COVERAGE AVAILABLE BY OPERATION OF LAW UNDER ISO ADDITIONAL INSURED FORM CG 20 26.
H. Punitive damages exclusion, if any, must be deleted (and the deletion indicated on the certificate of insurance), unless (a) insurance coverage may not lawfully be obtained for any punitive damages that may arise under this Agreement, or (b) all punitive damages are prohibited by all states in which this Agreement will be performed.
I. Licensee waives all rights of recovery, and its insurers also waive all rights of subrogation of damages against Licensor and its agents, officers, directors and employees for damages covered by the workers' compensation and employers' liability or commercial umbrella or excess liability obtained by Licensee required in this Agreement, where permitted by law. This waiver must be stated on the certificate of insurance.
J. All insurance policies must be written by a reputable insurance company acceptable to Licensor or with a current Best's Insurance Guide Rating of A- and Class VII or better, and authorized to do business in the state(s) in which the work is to be performed.
K. The fact that insurance is obtained by Licensee will not be deemed to release or diminish the liability of Licensee, including, without limitation, liability under the indemnity provisions of this Agreement. Damages recoverable by Licensor from Licensee or any third party will not be limited by the amount of the required insurance coverage.
Attachment 2
Project Vicinity Map
REPORT TO CITY COUNCIL
Approved by: Council Meeting of: December 18, 2024
_________________________________ Agenda Number: ___________ Wendy Silva, Human Resources Director
_________________________________
Arnoldo Rodriguez, City Manager
SUBJECT:
Extension of agreement with Backflow Solutions, Inc.
RECOMMENDATION:
Adopt a resolution extending the existing agreement with Backflow Solutions, Inc., for one additional year
SUMMARY:
On January 20, 2021, the City entered into a three-year (3-year) agreement with Backflow Solutions, Inc., (BSI) for notification and data management functions on behalf of the City for backflow prevention devices(BPDs). The agreement contains an option that the City may exercise to extend the term of the agreement for up to two (2) additional one-year (1-year) periods. The City exercised the first extension option, which extended the contract to March 1, 2025. Staff is recommending the City exercise the second option to extend services for one additional year to March 1, 2026.
DISCUSSION:
Pursuant to state guidelines, as the local water provider, the City is required to record BPD data that is then reported to the State of California (State). A BPD is a device that protects the City’s water supply from backflow, i.e., unintended backwards flow of water that introduces contaminates into the City's drinking water supply. BPDs are typically located on private property and must be tested annually by a third party. Although the City does not inspect BPDs, the City is required to collect and report data to the State.
In 2021, staff contacted numerous firms that specialize in collecting the data referenced herein.
While the annual cost to the City for these services does not require any formal purchasing procedure such as bids or requests for proposals, the vendor must provide a positive experience B-12
at a reasonable cost to the City’s BPD customers. Using these parameters, BSI was recommended as the vendor of choice, with an agreement approved by the City Council. Under the agreement, BSI:
1. Maintains a website where testers can input data and pay the processing fee;
2. Provides up to two notices to water customers who have BDPs notifying them that their device is due for testing; and
3. Submits data to the state on behalf of the City.
The agreement contains an option for the City to renew the existing agreement terms for up to two additional one-year periods at the same annual pricing so long as the City exercises this option not less than 30 days prior to the expiration of the agreement. The City has already exercised the first one-year option, which extended the contract to March 1, 2025. In order to maintain the current annual price, the City must again exercise the option to extend the agreement for another one-year term no later than January 30, 2025. This is the last term extension available under the current agreement.
The subscription agreement is currently a fixed annual cost of $495. Under this agreement, BSI assumes the responsibility and costs associated with preparing and mailing notifications to customers. These notifications are crucial to ensure compliance and safety standards regarding BPDs within our community. In the first three years, BSI has issued 2,933 letters on the City's behalf, which would have cost the City $2,141.09 for first-class mail at today's postage rates. If a customer remains inattentive or non-responsive after the initial and subsequent notifications, City staff undertakes follow-up measures. Essentially, BSI takes on the initial outreach efforts and data collection and reporting services, reducing the City’s involvement to non-voluntary compliance issues.
Additionally, BSI maintains customer service support teams for water customers, provides customers with an updated list of backflow testing companies in the region, and confirms that the testing companies are properly credentialed with the State. BSI confirmed that the cost to the customer will remain $14.95 if the City exercises the option to extend the agreement for another year. In speaking with staff, there have been no complaints from customers regarding the service or related issues while under contract with BSI. For these reasons, staff is recommending the City exercise the second and final extension.
FINANCIAL IMPACT:
The investment in this subscription serves as a strategic measure to optimize the City’s operations. The annual subscription cost of $495 from the Water Enterprise Fund is offset by savings in staff time and postage expenses.
ALTERNATIVES:
In considering options, the Council may explore the following alternatives:
1. Elect not to extend the agreement for an additional year and seek a new vendor for these services.
2. Elect not to contract for these services and direct that staff provide these services.
ATTACHMENTS:
1. Resolution
a. Exhibit 1: BSI Extension Letter through March 1, 2026
2. BSI Agreement and first Extension
Attachment 1: Resolution
RESOLUTION NO. _______
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MADERA,
CALIFORNIA, EXTENDING THE EXISTING AGREEMENT FOR SERVICES BETWEEN THE CITY OF MADERA AND BACKFLOW SOLUTIONS, INC. FOR
ONE YEAR
WHEREAS, on January 20, 2021, the City Council approved a three-year (3-year) agreement with Backflow Solutions, Inc., (BSI), with the option to extend the agreement for up to two (2) additional years, for notification and data management functions on behalf of the City for backflow prevention devices; and
WHEREAS, on December 20, 2023, the City Council extended the agreement by one (1) year to March 1, 2025; and
WHEREAS, BSI has provided satisfactory service under the agreement to-date and staff is recommending the City Council exercise the second one-year (1-year) extension of the agreement, extending the term to March 1, 2026.
NOW THEREFORE, THE COUNCIL OF THE CITY OF MADERA, hereby resolves, determines, finds, and orders as follows:
1. The above recitals are true and correct.
2. The City Council approves the extension of the agreement as shown in Exhibit 1, attached hereto and incorporated herein.
3. This resolution is effective immediately upon adoption. * * * * * * * *
Exhibit 1
Attachment 2: BSI Agreement with first Extension
December 18, 2023
David Austin
City of Madera
1030 South Gateway Dr
Madera, CA 93637
RE: Renewal Agreement
The City of Madera and Backflow Solutions, Inc. (hereinafter “BSI”) mutually agree to an extension of the Agreement for Services between the City of Madera and BSI (hereinafter “Agreement”) originally entered into on January 20th, 2021.
The first of two one-year renewal term of this extension shall run from March 2, 2024, through March 1, 2025, and all terms and conditions and pricing contained in the Agreement shall remain unchanged and in full force and effect.
IN WITNESS WHEROF, the parties hereto have executed, or caused to be executed by their duly authorized officials, this First Extension in duplicate, each of which shall be deemed an original.
BACKFLOW SOLUTIONS, INC.,
An Illinois corporation a body politic and corporate
By: By:
Name: Jessica Olson Name:
Title: Account Manager Title:
Address: Address:
12609 South Laramie Ave 1030 South Gateway Dr
Alsip, Illinois 60803 Madera, CA 93637
REPORT TO CITY COUNCIL
Approved by: Council Meeting of: December 18, 2024
_________________________________ Agenda Number: ___________ Rafael Magallan, Chief Building Official
_________________________________
Arnoldo Rodriguez, City Manager
SUBJECT:
Consider an Amendment to the Professional Services Agreement with Fire Safety Solutions.
RECOMMENDATION:
Adopt a Resolution approving a Second Amendment to the Professional Services Agreement with Fire Safety Solutions, INC. for Building and Fire Plan Review and Inspection Services.
SUMMARY:
The City of Madera (City) and Fire Safety Solutions, Inc. (formerly Fire Safety Solutions, LLC) (Consultant) are parties to a Professional Services Agreement (Agreement) initially approved by the City Council on February 20, 2008 (Resolution No. 08-38).
The First Amendment to the Agreement is set to expire on January 1, 2025. To ensure continued delivery of building plan review and inspection services that meet customer and industry expectations, the City and Consultant propose entering a Second Amendment to the Agreement.
This item is for a Second Amendment (attached as Exhibit A to the accompanying Resolution), which includes:
▪ Adjustments to hourly rates in accordance with the terms of the Agreement. ▪ Updates to acknowledge, clarify, and formalize certain aspects of the Agreement.
BACKGROUND:
The original Agreement did not include a sunset clause or length of term relative to an expiration date, number of effective years, or not-to-exceed compensation limitation. Therefore, the First Amendment included a proposed term/expiration date of January 1, 2025, for the Agreement.
Now, the second Amendment includes a proposed term/expiration date of July 1, 2025, for the Agreement.
for: B-13
Section 6.7 of the Agreement allows City and Fire Safety Solutions to effectuate modifications or amendments to the Original Professional Services Agreement only by a subsequent written agreement signed by both parties. Staff have negotiated the revised terms presented in the First Amendment, to which staff understand the Consultant is agreeable.
Workload volumes and staff resources require supplemental contracted consultant services to meet customer and industry expectations and timelines for delivery of Building Department plan review and inspection services. Fire Safety Solutions has performed its duties and scope of services in an exemplary manner and has invested time and effort in building a positive reputation and rapport with the City of Madera’s customers. Staff recommends the Council approve the proposed Second Amendment in accordance with the terms and spirit of the provisions of the original agreement.
FINANCIAL IMPACT:
The utilization of professional contracted services was planned and budgeted by the Building Department in the adopted Fiscal Year 2024/25 budget.
ALTERNATIVES:
The Council may propose any such alternative terms or provisions in its motion; or, may elect to continue the item (to a future time and date certain) and/or refer the item back to staff, with further direction or requests for additional information, negotiations, or amendments.
ATTACHMENTS:
1. Resolution approving a Second Amendment to the Professional Services Agreement with Fire Safety Solutions, INC. for Building and Fire Plan Review and Inspection Service; including:
Exhibit A: Second Amendment to the Professional Services Agreement by and between City of Madera and Fire Safety Solutions
2. Report to the City Council from November 15, 2023 that includes the First Amendment to the agreement and the original agreement from 2008
RESOLUTION NO. ______
A RESOLUTION OF THE COUNCIL OF THE CITY OF MADERA, CALIFORNIA,
APPROVING A SECOND AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT WITH FIRE SAFETY SOLUTIONS, INC. FOR BUILDING AND FIRE PLAN REVIEW AND INSPECTION SERVICES.
WHEREAS, the City of Madera is committed to protecting public health, safety, welfare and environment, and as such, desires to provide professional fire and building plan review and inspection services; and
WHEREAS, existing staff persons are not available to provide the full range of services necessary to perform all duties related to professional fire and building plan review and inspection services; and
WHEREAS, the City of Madera (the “City”) and Fire Safety Solutions, INC (formerly Fire Safety Solutions, LLC) (the “Consultant”) are parties to that certain Professional Services Agreement, approved by the Madera City Council on February 20, 2008, through passage of Madera City Council Resolution No. 08-38, and subsequently executed (the “Professional Services Agreement”); and
WHEREAS, the provisions of the Professional Services Agreement allow City and the Consultant to effectuate modifications or amendments to the Professional Services Agreement only by a subsequent written agreement signed by both parties; and WHEREAS, the City and Consultant desire to enter into a Second Amendment to the Professional Services Agreement (the “Second Amendment”) in order to set forth and approve amendments to extend the term of the contract; and
WHEREAS, approval of the Second Amendment to the Professional Services Agreement by and between the City and Consultant would continue to ensure City availability to sufficient resources to continue to provide for these services; and WHEREAS, sufficient monies exist within budgeted Contracted Services funds reserved for use by the Building Department.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Madera as follows:
1. The above recitals are true and correct.
2. The City Council approves the attached Second Amendment to the Professional Services Agreement by and between the City of Madera and Fire Safety Solutions INC., to perform professional fire and building plan review and inspection services (Exhibit “A”) and authorizes the Mayor to execute the same.
3. This Resolution is effective immediately upon adoption. * * * * *
Attachments:
Exhibit “A”: Second Amendment to the Professional Services Agreement by and between the City of Madera and Fire Safety Solutions, INC.
EXHIBIT A
SECOND AMENDMENT
TO THE PROFESSIONAL SERVICES AGREEMENT BY AND
BETWEEN CITY OF MADERA AND FIRE SAFETY SOLUTIONS
This Second Amendment to the Professional Services Agreement by and between the City of Madera and Fire Safety Solutions, LLC (the “Second Amendment”) is entered into by and between the CITY OF MADERA, a municipal corporation, organized and existing pursuant to the laws of the State of California and the City of Madera (the “City” or “Agency”), on the one hand, and FIRE SAFETY SOLUTIONS, INC. (formerly Fire Safety Solutions, LLC) on the other hand and hereinafter referred to as the “Consultant”. This Second Amendment shall become effective upon the final signature date of execution by both parties (the “Second Amendment Date”). The City and Consultant enter into this Second Amendment with reference to the following facts:
R E C I T A L S
A. City and Consultant are parties to that certain Professional Services Agreement, dated as of February 20, 2008, that was passed, adopted, and recorded in the Official Records of City of Madera, on February 20, 2008, as Resolution No. 08-38 (the “Original Professional Services Agreement”).
B. Section 6.7 of the Professional Services Agreement allows City and the Consultant to effectuate modifications or amendments to the Original Professional Services Agreement only by a subsequent written agreement signed by both parties.
C. The parties subsequently entered into a First Amendment, and the Original Professional Services Agreement as amended is set to expire on January 1, 2025.
D. City and Consultant desire to enter into this Second Amendment in order to set extend the term of the Original Professional Services Agreement as amended.
NOW THEREFORE, with reference to the above Recitals, the City and Consultant agree as follows:
A G R E E M E N T
1. Recitals. Each and all of the foregoing recitals of background facts are incorporated herein by this reference as though set forth herein verbatim.
2. Term of Amended Professional Services Agreement. Section 4.2 (Term of Contract) of Article 4 (TERMINATION) of the Original Professional Services Agreement as amended, is further amended to read in its entirety as follows:
4.2 Term of Contract
If not previously terminated, the term of this Agreement shall automatically expire and terminate on July 1, 2025, unless extended in writing by mutual consent of the Parties.
8. Conflict. Except as expressly provided in this Second Amendment the remaining terms of the Original Professional Services Agreement as amended by the First Amendment shall remain in full force and effect.
9. Binding and Effective. This Second Amendment shall become binding and effective as of December 18, 2024.
[SIGNATURES ARE ON THE FOLLOWING PAGES]
IN WITNESS WHEREOF, the parties have executed this Second Amendment at Madera, California, on the day and year first above written.
CITY OF MADERA: FIRE SAFETY SOLUTIONS:
By: ____________________________ By: ____________________________ Cece Gallegos, Mayor Matthew S. Tarr, CEO
Date: ______________________ Date: ______________________ Number: ________________________
Federal Employer Identification
Attest:
___________________________
City Clerk
Approved as to Form:
___________________________
City Attorney
REPORT TO CITY COUNCIL
Approved by: Council Meeting of: November 15, 2023
_________________________________ Agenda Number: ___________ Will Tackett, Community Development Director
_________________________________
Arnoldo Rodriguez, City Manager
SUBJECT:
Consider an Amendment to the Professional Services Agreement with Fire Safety Solutions.
RECOMMENDATION:
That Council consider the following:
1. Adopt a resolution of the Council of the City of Madera approving a First Amendment to the Professional Services Agreement with Fire Safety Solutions, INC. for Building and Fire Plan Review and Inspection Services.
SUMMARY:
The City of Madera (City) and Fire Safety Solutions, INC (formerly Fire Safety Solutions, LLC). (Consultant) are parties to an effective Professional Services Agreement (Agreement) approved by the Madera City Council on February 20, 2008, through passage of Madera City Council Resolution No. 08-38.
On October 31, 2023, Fire Safety Solutions submitted a written request to the City of Madera (City) for certain amendments to the Agreement to effectuate an increase to the hourly rates, which are subject to annual revision pursuant to the terms of the Agreement.
Building Department staff have prepared the First Amendment to the Professional Services Agreement by and between the City of Madera and Fire Safety Solutions (First Amendment), included as Exhibit A to the Resolution attached to this report, in order to set forth and approve amendments to reflect an increase to the hourly rates in accordance with the terms of the Professional Services Agreement; as well as, to provide certain acknowledgements, clarifications and understandings with respect to the Professional Services Agreement.
B-15
BACKGROUND:
Amongst other provisions, the existing Professional Services Agreement (Article 2, Section 2.1) provides the hourly rates and estimated amount are subject to annual revision, effective January 1st of each year. The proposed flat hourly rate reflected in the First Amendment represents an increase from $80 per hour to $120 per hour.
As acknowledged within the letter from Fire Safety Solutions dated October 31, 2023, the original rate of $80/hr. has not changed since execution of the original Agreement in 2008. Given this fact and based upon the knowledge and quality of service demonstrated by the Consultant since execution of the original Agreement, it is staff’s opinion that the requested $120/hr. flat rate is both reasonable and fair when compared to contemporary industry standards. In addition, based on the U.S. Bureau of Labor Statistics Consumer Price Index (CPI) Inflation Calculator, the requested rate is consistent with what would be a contemporary rate had an annual increase been applied to the original hourly rate year-over-year since execution of the Agreement. The First Amendment proposes to amend the frequency of invoicing from a monthly to a bi-weekly basis.
Incidentally, the original Agreement did not include a sunset clause or length of term relative to an expiration date, number of effective years, or not-to-exceed compensation limitation.
Therefore, the First Amendment also includes a proposed term/expiration date of January 1, 2025, for the Agreement.
Section 6.7 of the Agreement allows City and Fire Safety Solutions to effectuate modifications or amendments to the Original Professional Services Agreement only by a subsequent written agreement signed by both parties. Staff have negotiated the revised terms presented in the First Amendment, to which staff understand the Consultant is agreeable.
Workload volumes and staff resources require supplemental contracted consultant services in order to meet customer and industry expectations and timeliness for delivery of Building Department plan review and inspection services. Fire Safety Solutions has performed its duties and scope of services in an exemplary manner and has invested time and effort in building a positive reputation and rapport with the City of Madera’s customers. Staff recommends the Council approve the proposed First Amendment in accordance with the terms and spirit of the provisions of the original agreement. Such approval will help the City ensure Building Department services may continue to be provided in a qualitative manner for its customers.
FINANCIAL IMPACT:
There is no fiscal impact associated with the recommended action. Utilization of professional contracted services was anticipated and budgeted by the Building Department in the approved City of Madera 2023/24 Fiscal Year budget.
ALTERNATIVES:
The Council may propose any such alternative terms or provisions in its motion; or, may elect to continue the item (to a future time and date certain) and/or refer the item back to staff, with further direction or requests for additional information, negotiations, or amendments.
ATTACHMENTS:
1. Resolution approving a First Amendment to the Professional Services Agreement with Fire Safety Solutions, INC. for Building and Fire Plan Review and Inspection Service; including:
Exhibit A: First Amendment to the Professional Services Agreement by and between City of Madera and Fire Safety Solutions
2. Original Professional Services Agreement by and between the City of Madera and Fire Safety Solutions.
ATTACHMENT 1
Resolution approving a First Amendment to the Professional Services Agreement with Fire Safety Solutions, INC. for Building and Fire Plan Review and Inspection Service;
Including:
Exhibit A – First Amendment to the Professional Services Agreement by and between City of Madera and Fire Safety Solutions
RESOLUTION NO. ______
A RESOLUTION OF THE COUNCIL OF THE CITY OF MADERA, CALIFORNIA,
APPROVING A FIRST AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT WITH FIRE SAFETY SOLUTIONS, INC. FOR BUILDING AND FIRE PLAN REVIEW AND INSPECTION SERVICES.
WHEREAS, the City of Madera is committed to protecting public health, safety, welfare and environment, and as such, desires to provide professional fire and building plan review and inspection services; and
WHEREAS, existing staff persons are not available to provide the full range of services necessary to perform all duties related to professional fire and building plan review and inspection services; and
WHEREAS, the City of Madera (the “City”) and Fire Safety Solutions, INC (formerly Fire Safety Solutions, LLC). (the “Consultant”) are parties to that certain Professional Services Agreement, approved by the Madera City Council on February 20, 2008, through passage of Madera City Council Resolution No. 08-38, and subsequently executed (the “Professional Services Agreement”); and
WHEREAS, the provisions of the Professional Services Agreement allow City and the Consultant to effectuate modifications or amendments to the Professional Services Agreement only by a subsequent written agreement signed by both parties; and WHEREAS, the City and Consultant desire to enter into a First Amendment to the Professional Services Agreement (the “First Amendment”) in order to set forth and approve amendments to enact an increase to the hourly rates in accordance with the terms of the Professional Services Agreement as well as provide certain acknowledgements, clarifications and understandings with respect to the Professional Services Agreement; and WHEREAS, approval of the First Amendment to the Professional Services Agreement by and between the City and Consultant would continue to ensure City availability to sufficient resources to continue to provide for these services; and WHEREAS, sufficient monies exist within budgeted Contracted Services funds reserved for use by the Building Department.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Madera as follows:
1. The above recitals are true and correct.
2. The City Council approves the attached First Amendment to the Professional Services Agreement by and between the City of Madera and Fire Safety Solutions INC., to perform professional fire and building plan review and inspection services(Exhibit “A”), and authorizes the Mayor to execute the same.
3. This Resolution is effective immediately upon adoption. * * * * *
Attachments:
Exhibit “A”: First Amendment to the Professional Services Agreement by and between the City of Madera and Fire Safety Solutions, INC.
EXHIBIT A
FIRST AMENDMENT
TO THE PROFESSIONAL SERVICES AGREEMENT BY AND
BETWEEN CITY OF MADERA AND FIRE SAFETY SOLUTIONS
This First Amendment to the Professional Services Agreement by and between the City of Madera and Fire Safety Solutions, LLC (the “First Amendment”) is entered into by and between the CITY OF MADERA, a municipal corporation, organized and existing pursuant to the laws of the State of California and the City of Madera (the “City” or “Agency”), on the one hand, and FIRE SAFETY SOLUTIONS, INC. (formerly Fire Safety Solutions, LLC) on the other hand and hereinafter referred to as the “Consultant”.
This First Amendment shall become effective upon the final signature date of execution by both parties (the “First Amendment Date”). The City and Consultant enter into this First Amendment with reference to the following facts:
R E C I T A L S
A. City and Consultant are parties to that certain Professional Services Agreement, dated as of February 20, 2008, that was passed, adopted, and recorded in the Official Records of City of Madera, on February 20, 2008, as Resolution No. 08-38 (the “Original Professional Services Agreement”).
B. Section 6.7 of the Professional Services Agreement allows City and the Consultant to effectuate modifications or amendments to the Original Professional Services Agreement only by a subsequent written agreement signed by both parties.
C. On October 31, 2023, Consultant has submitted a written request to the City for certain amendments to the Professional Services Agreement to facilitate an increase to the hourly rates in accordance with the provisions of the Original Professional Services Agreement and as set forth in this First Amendment. City and Consultant desire to enter into this First Amendment in order to set forth and approve: (i) such amendments to the Professional Services Agreement; and (ii) certain acknowledgements, clarifications and understandings with respect to the Professional Services Agreement.
D. On November __, 2023, at a duly noticed public meeting and after due review and consideration of (i) the report of City staff, (ii) the recommendations of the Community Development Director of the City, (iii) all other evidence heard and submitted, and (iv) all other appropriate documentation and circumstances, the City Council adopted Resolution No.____ to approve this First Amendment set forth herein.
NOW THEREFORE, with reference to the above Recitals, the City and Consultant agree as follows:
A G R E E M E N T
1. Recitals. Each and all of the foregoing recitals of background facts are incorporated herein by this reference as though set forth herein verbatim.
2. Fee Compensation. Section 2.1 (Fee) of the Original Professional Services Agreement is deleted in its entirety and amended to read in its entirety as follows:
For services performed pursuant to this Agreement, commencing the First Amendment Date the AGENCY agrees to pay and the CONSULTANT agrees to accept, as payment in full for each assigned Plan Review or Inspection a sum computed at the agreed flat rate of $120/Hour for Services. The computed amount shall constitute complete compensation, including document production and out-of-pocket expenses for all services for the work identified in the Scope of Services.
The CONSULTANT agrees that the agreed flat rate of $120/hour shall be used for the duration of the contract.
The CONSULTANT shall be paid by AGENCY according to the biweekly billing invoices submitted by the CONSULTANT and approved by the AGENCY. The invoices shall clearly break down all costs for specific Services in a manner deemed acceptable by the AGENCY. The CONSULTANT shall provide itemized invoices listing permit numbers and charges for each Service provided. The CONSULTANT shall be paid no later than thirty (30) days following submission of a written, verified billing to the AGENCY.
The CONSULTANT shall provide compensation to the representative employee in accordance with State and Federal laws.
3. Terms of Compensation. The first sentence of Section 2.3 (Terms of Compensation) of the Original Professional Services Agreement is deleted in its entirety and is amended to read as follows:
CONSULTANT will submit invoices bi-weekly for the percentage of work completed in the previous weeks.
4. Term of Amended Professional Services Agreement. Section 4.2 (Term of Contract) is added to Article 4 (TERMINATION) of the Original Professional Services Agreement to read in its entirety as follows:
4.2 Term of Contract
If not previously terminated, the term of this Agreement shall automatically expire and terminate on January 1, 2025, unless extended in writing by mutual consent of the Parties.
5. Representation. The “AGENCY Representative” portion Section 6.1 (Representation) of the Original Professional Services Agreement is amended to read as follows:
AGENCY Representative
David Merchen, Director
Will Tackett, Community Development Director
205 W 4th Street
Madera, CA 93637
(559) 661-5430
(559) 661-5451
6. Extent of Agreement. Section 6.7 (Extent of Agreement) of the Original Professional Services Agreement, is amended in its entirety to read as follows:
This Agreement, as amended, represents the entire and integrated Agreement between AGENCY and CONSULTANT and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be modified or amended only by a subsequent written agreement signed by both parties.
7. Exhibit “A”. Section 3.1 of Exhibit “A’ of the Original Professional Services Agreement is amended in its entirety to read as follows:
Work shall be performed at a flat rate of $120/hour effective as of the First Amendment Date.
8. Conflict. Except as expressly provided in this First Amendment the remaining terms of the Original Professional Services Agreement shall remain in full force and effect.
9. Binding and Effective. This First Amendment shall become: (a) binding upon the effective date of Resolution No._____ of the City of Madera approving the First Amendment to the Professional Services Agreement; and (b) upon becoming binding pursuant to clause (a), shall become effective as of the First Amendment Date. [SIGNATURES ARE ON THE FOLLOWING PAGES]
IN WITNESS WHEREOF, the parties have executed this First Amendment at Madera, California, on the day and year first above written.
CITY OF MADERA: FIRE SAFETY SOLUTIONS:
By: ____________________________ By: ____________________________ Santos Garcia, Mayor Matthew S. Tarr, CEO
Date: ______________________ Date: ______________________ Number: ________________________
Federal Employer Identification
Attest:
___________________________
City Clerk
Approved as to Form:
___________________________
City Attorney
ATTACHMENT 2
Original Professional Services Agreement by and between the City of Madera and Fire Safety Solutions.
FIRE SAFETY SOLUTIONS, LLC
Professional Services Agreement
THIS AGREEMENT is made and entered into this w~ day of February, 2008, by and between City of Madera, hereinafter referred to as "AGENCY", and Fire Safety Solutions LLC., hereafter referred to as "Consultant".
IN CONSIDERATION of the covenants hereinafter set forth, the parties hereto mutually agree as follows:
1.1 Project Description
ARTICLE 1
SCOPE OF SERVICES
Refer to scope of services in Exhibit "A".
1.2 Description of Services
CONSULTANT shall perform Services described in Exhibit "A", Scope of Work, attached hereto and incorporated herein by this reference. CONSUL TANT shall not have control over or charge of and shall not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the work since these are solely the construction contractor's responsibility.
CONSUL TANT shall not be responsible for the construction contractor's schedules or failure to carry out the work in accordance with the contract documents. CONSUL TANT shall not have control over or charge of acts or omissions of the construction contractor, subcontractors, or their agents or employees, or of any other persons performing portions of the work.
1.3 Responsibilities of Agency
The Responsibilities of the AGENCY shall be those as described in Exhibit "A" attached hereto and incorporated herein by this reference.
1.4 Schedule of Work
Upon receipt of written Notice to Proceed from the AGENCY, CONSUL TANT shall perform Services in the Scope of Work with diligence. CONSUL TANT shall not be responsible for delay, nor shall CONSUL TANT be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of AGENCY to furnish timely information or to approve or disapprove CONSULTANT'S work promptly, or delay or faulty performance by AGENCY, other contractors, or governmental agencies, or any other delays beyond CONSULTANT'S control or without CONSUL TANT's fault.
2.1 Fee
ARTICLE 2
COMPENSATION
AGENCY agrees to compensate CONSUL TANT for time and materials, in accordance with the hourly rates in effect at the time the services are performed. AGENCY will compensate CONSUL TANT for the cost of materials plus 15% and the cost of mileage in accordance with Exhibit "A". The hourly rates and estimated amount are subject to annual revision, effective January 1st of each year.
CONSUL TANT will submit invoices monthly for the work completed.
2.2 Payment Address
All payments due CONSULTANT shall be paid to:
Fire Safety Solutions
1405 E. Omaha
Fresno, CA 93720
2.3 Terms of Compensation
CONSUL TANT will submit invoices monthly for the percentage of work completed in the previous month. AGENCY agrees to pay all undisputed invoice amounts within thirty (30) days of the invoice date. AGENCY agrees to notify CONSUL TANT of any disputed invoice amounts within ten (10) days of the invoice date. Delinquent invoices will be subject to a late payment carrying charge computed at a periodic rate of 1.5% per month, which is an annual percentage rate of 18%, which will be applied to any unpaid balance commencing forty-five (45) days after date of the original invoice.
Additionally, in the event AGENCY fails to pay any undisputed amounts due CONSULTANT within forty-five (45) days after invoices are rendered, then AGENCY agrees that CONSUL TANT shall have the right to consider said default a total breach of this Agreement and the duties of CONSULTANT under this Agreement may be terminated by CONSULTANT without liability to CONSULTANT upon ten (10) working days advance written Notice.
2.4 Additional Services
AGENCY may request CONSUL TANT to perform additional services not covered by the specific Scope of Work set forth in this Agreement, and CONSUL TANT shall perform such services and will be paid for such additional services when they are mutually agreed to and made part of this Agreement by written amendment.
ARTICLE 3
INDEMNIFICATION, LIMITATION OF LIABILITY AND INSURANCE
3.1 Indemnification
CONSUL TANT agrees to indemnify and hold harmless AGENCY, its officers and employees from and against liability, damages, costs, losses, claims and expenses, including reasonable attorneys' fees, arising out of the negligent acts, errors, or omissions of CONSULTANT in the performance of this Agreement.
In the event AGENCY obtains indemnification for itself from another party performing work on the Project, AGENCY shall require that party to indemnify CONSUL TANT to the same extent that party indemnifies AGENCY.
3.2 Limitation of Liability
AGENCY and CONSUL TANT have discussed their risks, rewards and benefits of the Project and the CONSUL TANT fee for services. The risks have been allocated such that AGENCY agrees that to the fullest extent permitted by law, CONSUL TANT's total liability to AGENCY under this Agreement shall not exceed the amount of $50,000.00.
3.3 Workers' Compensation
CONSULTANT maintains Workers' Compensation and Employer's Liability Insurance of a form and in an amount as required by state law.
3.4 General Liability
CONSULTANT maintains Comprehensive General Bodily Injury and Property Damage Liability, including Automobile (owned, non-owned, or hired), in the amount of One Million Dollars ($1,000,000), combined single limits per occurrence and annual aggregate.
3.5 Notice of Cancellation
CONSULTANT agrees to provide ten (10) days written Notice to AGENCY prior to cancellation of any policy.
3.6 Agency Provided Information
AGENCY agrees to indemnify and hold harmless CONSUL TANT, its officers and employees, from and against any and all liability, damages, costs, losses, claims and expenses, including reasonable attorneys' fees, due to incorrect data or information provided by the AGENCY including, but not limited to utility location data, as-built drawings, topographic survey, geotechnical reports, etc.
In the event AGENCY fails to provide a soils or geotechnical report for the services to be performed in this Agreement, CONSUL TANT will bear no responsibility for and CLIENT will indemnify and hold harmless CONSUL TANT, its officers and employees from and against any and all liability, damages, costs, losses, claims and expenses of any nature arising out of or related to soils or geotechnical requirements needed for the subject Agreement.
4.1 Termination of Contract
ARTICLE4
TERMINATION
This Agreement may be terminated by either party at any time with or without cause upon thirty (30) days prior written Notice. In the event of termination by AGENCY, CONSUL TANT shall be paid at the hourly rates then in effect within thirty (30) days of submittal of invoice for all services performed to the date of termination and for all expenses directly attributable to the termination, including, but not limited to, any cancellation charges by subconsultants and/or contractors.
ARTICLE 5
OWNERSHIP OF DOCUMENTS
5.1 Ownership of Documents
All plans, specifications, reports and other design documents prepared by CONSUL TANT pursuant to this Agreement are instruments of service which shall be deemed the property of the AGENCY. AGENCY acknowledges and agrees that all plans, specifications, reports and other design documents prepared by CONSULTANT pursuant to this Agreement shall be used exclusively on this Project and shall not be used for any other work without the written consent of CONSUL TANT. In the event AGENCY and CONSUL TANT permit the reuse or other use of the plans, specifications, reports or other design documents, AGENCY shall require the party using them to indemnify and hold harmless AGENCY and CONSUL TANT regarding such reuse or other use, and AGENCY shall require the party using them to eliminate any and all references to CONSULTANT from the plans, specifications, reports and other design documents. CONSULTANT may apply for copyrights or patents on all or any part of the work performed under this Agreement.
ARTICLE 6
GENERAL PROVISIONS
6.1 Representation
An AGENCY representative shall be designated by the AGENCY and a CONSUL TANT representative shall be designated by CONSUL TANT as the primary contact person for each party regarding performance of this Agreement.
AGENCY Representative
David Merchen, Director
205 W 4th Street
Madera Ca 93637
(559) 661-5430
6.2 Non-Discrimination
CONSUL TANT Representative
Matthew S. Tarr
1405 E. Omaha
Fresno CA 93720
(559) 274-3925
In the performance of the terms of this Agreement, CONSULTANT shall not engage in discrimination in the employment of persons because of race, creed, color, religion, national origin, age, physical handicap, marital status or sex.
6.3 Legal Action
Should either party to this Agreement bring legal action against the other, the case shall be handled in Fresno County, California, and the party prevailing in such action shall be entitled to reasonable attorneys' fee which shall be fixed by the judge hearing the case and such fee shall be included in the judgment.
Should any legal action about the Project between AGENCY and a party other than CONSULTANT require the testimony of CONSUL TANT when there is no allegation that CONSUL TANT was negligent, AGENCY shall compensate CONSUL TANT for its testimony and preparation to testify at the CONSUL TANT hourly rates in effect at the time of such testimony.
6.4 Assignment
This Agreement shall not be assignable by either party without the prior written consent of the other party.
Notwithstanding the above, CONSULTANT may use the services of persons and entities not in their employ, when it is appropriate and customary to do so. Such persons and entities include, but are not necessarily limited to, surveyors, specialized consultants, and testing laboratories. CONSUL TANT's use of others for additional services shall not be unreasonably restricted by the AGENCY provided CONSUL TANT notifies the AGENCY in advance.
6.5 Hazardous Materials
Unless otherwise provided in this Agreement, CONSUL TANT and its sub-consultants and/or contractors shall have no responsibility for the discovery, presence, handling, removal or disposal of, or exposure of persons to hazardous materials in any form at the site of the Project.
6.6 Titles
The titles used in this Agreement are for general reference only and are not part of the Agreement.
6.7 Extent of Agreement
This Agreement represents the entire and integrated Agreement between AGENCY and CONSUL TANT and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be modified or amended only by a subsequent written agreement signed by both parties.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first above written.
APPROVED AS TO FORM CITY OF MADERA
By:~~
Ricful K75enhalter, City At!o~e~
?~"7-/D,8"
ATTEST:
By:----l=-><----'-""-=--=.;:::_;:::....;:..=~------- Sonia Alvarez, City Clerk Title: CE(:?.
Taxpayer I.D. Number
1. DUTIES OF CONTRACTOR
EXHIBIT "A"
Scope of Services
1. 1 Function as extension of in-house staff, including Building Plan Check
Fire Plan Check
Building Inspection
Fire Inspection
General Fire Prevention Duties (To be specified as determined) Such duties shall be under the direction of the Community Development Director, and under the day to day supervision of the Chief Building Official.
1.2 On each of the 3 business days, work at least 7 business hours (between 7:00 - 5:30) in the Building Department. An additional period of at least ½ hour each day shall be designated for a meal break, which shall not be billable. A total of 27 hours, not including meal breaks, shall be provided during the three business days. The actual work schedule shall be coordinated with the Building Official.
1.3 The 27 hours per week specified in item 1.2 above shall be billed as time spent in the office and not on the basis of specific tasks or jobs. Work shall consist of day to day assignments made by Building Official or Community Development Director.
1.4 As needed, and with assigned tasks, be available for a minimum of an additional 9 hours per week, which may be provided in the Building Department or outside the department, billed at the same flat rate specified in this agreement.
1.5 Contractor shall provide a work vehicle and shall not be reimbursed for mileage, or provided any other compensation for use of said vehicle in the performance of duties under this agreement.
1.6 Contractor shall provide insurance in accordance with City requirements.
1. 7 This agreement shall be exclusively serviced by Matthew Tarr, as the Contractor's representative employee.
2. DUTIES OF AGENCY
2.1 The Agency shall provide a work station with a computer and office supplies consistent with the normal operations of the Building Department.
2.2 The Agency agrees to compensate the contractor in accordance with Section 3 below.
3. COMPENSATION
3.1 Work shall be performed at a flat rate of $80 / hour.
3.2 The Contractor shall provide compensation to the representative employee in accordance with State and Federal laws.
1 REPORT TO CITY COUNCIL
Approved by: Council Meeting of: December 18, 2024
_________________________________ Agenda Number: ___________ Wendy Silva, Director of Human Resources
_________________________________
Arnoldo Rodriguez, City Manager
SUBJECT:
Award of agreement for professional recruiting services RECOMMENDATION:
Adopt a resolution approving a Professional Services Agreement with CPS HR Consulting for recruiting services
SUMMARY:
In December 2022, the City entered into an agreement with CPS HR Consulting (CPS HR) for professional recruiting services following a Request for Proposals (RFP) process. That agreements term expires this month. In anticipation of that expiration, staff published RFP 202425-20 seeking proposals for ongoing professional recruiting services, to include full cycle recruitments for atwill director level positions as well as an added service of outreach-only activities for hard-to-fill Civil Service positions. The City received twelve (12) proposals, of which eight (8) were deemed responsive to the requested scope of services. After evaluation of submitted proposals, CPS HR was the top ranked proposal. If approved, CPS HR will be awarded a three (3) year agreement for professional recruiting services. The agreement does not guarantee any work for the vendor, but does lock in pricing should the City utilize the vendor for the services.
DISCUSSION:
The City has an agreement with CPS HR for professional recruiting services, awarded after an RFP process in 2022. This agreement expires in the current month. The City published RFP 202425-20 seeking proposals from qualified firms or individuals to provide professional recruiting services in anticipation of the expiration of the current vendor’s service agreement. In addition to services for full-cycle recruiting services for at-will department head positions that were the purpose of the existing service agreement, the City also requested vendors propose services for outreachonly activities to assist with Civil Service recruitments that are difficult to fill for the City, such as civil engineers. The RFP was published on the City’s website and posted to PlanetBids.
B-14
Additionally, notice of the RFP was provided directly to twelve (12) known providers of public sector recruitment services. The City received twelve (12) proposals, eight (8) of which were deemed responsive to the requested scope of work. The proposals were reviewed by a committee consisting of Human Resources and Administration staff who will be involved in the proposed services. Based on the committee’s review, the proposals received were ranked as shown in Table 1.
Table 1: RFP 202425-20 Proposing Firms and Rank
Firm Rank
CPS HR Consulting 1
DEI Recruiting and Consulting 2
Koff & Associates 3
WBCP, Inc. 4
Staffactory, LLC 5
Advanced Knowledge Tech 6
Tucker Technology, Inc. 7
New Frontier Consulting 8
Bob Murray & Associates No Rank
LanceSoft, Inc. No Rank
Insight Global No Rank
Netsynk, Inc. No Rank
The submitted proposals were reviewed and evaluated by force-rank, taking into consideration the proposer’s qualifications and experience, how the proposed scope of work met the City’s requested services and needs, proposed fee schedule, quality of references, and any requested changes to the City’s standard consulting agreement. Based on this review, CPS HR’s proposal was the top ranked proposal, offering a scope of work consistent with the City’s published RFP at a reasonable price. As CPS HR is the current vendor, staff is familiar with and satisfied with performance to date under the current agreement and is confident they will be able to perform the requested scope of work. The agreement does not guarantee any specific assignments or volume of work for the vendor, but does lock in pricing for services. Staff anticipates utilizing the agreement in the near term to conduct full-cycle recruitments for Planning Manager and Public Works Operations Director, as well as outreach-only activities for Deputy City Engineer.
FINANCIAL IMPACT:
CPS HR’s agreement will provide for flat fee recruitments, with the specific fee dependent on the type of service provided. The fee breakdown is provided below in Table 2. Funds for professional services as contemplated herein were included in the adopted operating budget for the current fiscal year and no additional appropriate is being requested at this time.
Table 2: Summary of Fee Schedule
Service Pricing
Full - Executive Recruitment $27,000 Flat Fee
Partial - Executive Recruitment $20,000 Flat Fee
Full – Middle Management/Specialized $20,000 Flat Fee
Partial – Middle Management/Specialized $17,000 Flat Fee Full - General (Professional/Administrative) $15,000 Flat Fee Partial - General (Professional/Administrative) $12,000 Flat Fee Outreach Only $7,000 Flat Fee
Outreach Plus Advertising $10,000 Flat Fee
(includes direct advertising)
The agreement also includes a placement guarantee of twelve (12) months for department head positions and six (6) months for mid-management positions, as well as a commitment to continue a recruitment at no additional cost until the City has a candidate with an accepted offer of employment. In these scenarios, it means the City will not have to pay for another fee to fulfill the vacancy, but will continue to receive services under the flat fee paid for that particular recruitment service until the position is filled.
ALTERNATIVES:
Council could direct staff to solicit additional proposals for services.
ATTACHMENTS:
1. Resolution
a. Exhibit 1: Professional Services Agreement with CPS HR Consulting RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MADERA
APPROVING AN AGREEMENT FOR PROFESSIONAL SERVICES WITH CPS HR
CONSULTING
WHEREAS, the City of Madera has a need for professional recruiting services and prepared a Request for Proposals (RFP) to solicit bids for such services; and WHEREAS, CPS HR Consulting submitted a proposal to provide said services for the City of Madera; and
WHEREAS, based on review of the proposal, CPS HR Consulting is qualified to provide needed professional recruiting services; and
WHEREAS, an agreement has been prepared between the City of Madera and CPS HR Consulting for professional services that is in the best interests of both parties.
NOW, THEREFORE, THE COUNCIL OF THE CITY OF MADERA hereby resolves, finds, and orders as follows:
1. The above recitals are true and correct.
2. The Agreement for Professional Services between the City and CPS HR Consulting, a copy of which is attached hereto as Exhibit 1 and incorporated herein, is approved.
3. This resolution is effective immediately upon adoption. ********************