CITIZENS BUSINESS BANK
BANKING SERVICES AGREEMENT
This Banking Services Agreement ("Agreement") is entered into this 15th day of November, 2022, between the City of Placentia hereinafter referred to as "Depositor," and Citizens Business Bank, hereinafter referred to as "Service Provider." The Depositor and Service Provider hereby agree as follows:
1. The Service Provider represents that it is in the business of banking and currently offers the following services including, among others, checking account services, online banking services, image cash letter services, positive pay services, image services, lockbox services, and ZBA services (collectively, "Banking Services").
2. The Service Provider agrees to provide the Banking Services, and as specified in the attached Proforma, which is attached as Exhibit "A", and at the cost set forth in such Proforma. The Service Provider shall provide such Banking Services in accordance with the provisions, terms and conditions of this Agreement.
3. The Service Provider shall not assign, sublet, or transfer its duties under this Agreement, nor shall this Agreement be assignable or transferable by operation of law or otherwise without the written consent of the Depositor, except for an assignment resulting from a merger or acquisition involving Service Provider, in which event an assignment shall be permitted.
4. The Service Provider shall not disclose to third parties, other than its attorneys, accountants and other professionals bound by confidentiality obligations, any confidential information gained from this relationship without the prior, written permission from the Depositor.
5. The Depositor agrees to pay the Service Provider the fees, together with such other payments and reimbursements as are applicable and authorized, and pursuant to any account agreements entered into by Depositor as part of its banking relationships with Service Provider.
6. No oral agreement or conversation with any officer, agent, or employee of the Depositor, either before or after execution of this Agreement, shall affect or modify any of the terms or provisions contained in this Agreement, or the Service Provider's account or service agreements.
7. Service Provider will be liable to Depositor only for damages arising from Service Provider's willful misconduct or negligence in the performance of the Banking Services, or breach of any agreement with Depositor, except as otherwise provided in Service Provider's account or service agreements. 1 Service Provider will not be responsible for any loss, delay, cost or liability to the extent that it arises, directly or indirectly, in whole or in part, from: (a) Depositor's actions or omissions, or those of third parties which are not within Service Provider's immediate and reasonable control (including, but not limited to, any internal security breaches or the interception, corruption and/or modification of instructions that Depositor sends to Service Provider); (b) Depositor's negligence or breach of any agreement with Service Provider; (c) any ambiguity, inaccuracy or omission in any instruction or information provided to Service Provider; (d) any error, failure or delay in the transmission or delivery of data, records or items due to a breakdown in any computer or communications facility; (e) accidents, strikes, labor disputes, civil unrest, fire, flood, water damage (e.g., from fire suppression systems), or acts of God; (f) causes beyond Service Provider's reasonable control; (g) the application of any government or funds -transfer system rule, guideline, policy or regulation; (h) the lack of available funds in Depositor's account to complete a transaction; (i) Service Provider's inability to confirm the authority of any person to act on Depositor's behalf; or (j) Depositor's failure to follow any applicable software manufacturer's recommendations or Service Provider's instructions. There may be other exceptions to Service Provider's liability, as stated in Depositor's account or other service agreements with Service Provider. Service Provider will not be responsible under any circumstances for special, indirect, or consequential damages which Depositor incurs as a result of Service Provider's actions or omissions, even if Service Provider is aware of the possibility for such damages.
8. Service Provider is not an agent or employee of the Depositor and does not participate in any pension plan, insurance, bonus, or similar benefits that the Depositor provides for its employees.
9. Neither the Service Provider nor the Depositor shall be deemed to be in breach of this Agreement based on a non -material breach or a breach that is capable of being cured until it has received written notice of the breach from the other party. The party charged with the breach will have fifteen (15) days from the date of receiving such notice to cure the breach. If such breach is not cured within that fifteen (15) day period, the party not causing the breach shall have the right to terminate such Agreement as set forth in Section 16 below.
10. This Agreement shall be construed in accordance with the laws of the State of California, without reference to its conflict of laws principles, and the courts of Orange County, California shall have sole jurisdiction herein unless the matter in dispute is the subject of binding arbitration pursuant to the provisions hereof.
11. If a dispute involving $25,000 or more arises between us with respect to this Agreement, its enforcement or our Banking Services, either Depositor or Service Provider may require that it be resolved by judicial reference in accordance with California Code of Civil Procedure, Sections 638, et seq. The 2 referee shall be a retired judge, agreed upon by the parties, from either the American Arbitration Association (AAA) or Judicial Arbitration and Mediation Service, Inc. (JAMS). If Depositor and Service Provider cannot agree on the referee, the party who initially selected the reference procedure shall request a panel from either AAA or JAMS, and the panel shall select the referee. The costs of the reference procedure, including the fee for the court reporter, shall be borne equally by both parties as the costs are incurred. The referee shall hear all pre-trial and post -trial matters, including requests for equitable relief, prepare an award with written findings of fact and conclusions of law, and apportion costs as appropriate.
12. The Service Provider shall maintain the required level of collateralization pursuant to the California Government Code.
13. Any claim, action or proceeding by Depositor to enforce the terms of this Agreement or to recover for any Banking Service -related loss must be commenced within four (4) years from the date that the event giving rise to the claim, action or proceeding first occurs. Depositor agrees to cooperate with Service Provider in any loss recovery efforts that Service Provider undertakes to reduce any loss or liability that arises in connection with the Banking Services or this Agreement. Depositor acknowledges that Service Provider's fees have been established in contemplation of Depositor's agreement to assist Service Provider in any loss recovery effort.
14. Each party shall indemnify, defend, and hold free and harmless the other party and its directors, officers, employees, and agents from and against any and all loss or liability for third party claims that occur or arise as a result of any negligence of such party, its directors, officers, employees, and agents in performing any and all services rendered pursuant to this Agreement provided, however, such party's obligation to defend, indemnify, and hold free and harmless shall not arise as a result of that portion of any claim that may occur as a result of the other party's willful misconduct or negligence.
15. Service Provider agrees to comply with the following insurance provisions below for the benefit of the Depositor:
A. Types of Required Coverages. Service Provider shall maintain in full force and effect during the term of this Agreement the following insurance policies:
(1) Commercial General Liability: Commercial General
Liability Insurance which affords coverage at least as broad as Insurance Services Office "occurrence" form CG 00 01, with minimum limits of at least $5,000,000 each occurrence, and if written with an aggregate, the aggregate shall be double the each occurrence limit.
3 (2) Automobile Liability Insurance: Automobile Liability Insurance with coverage at least as broad as Insurance Services Office Form CA 0001 covering "Any Auto" (Code 1) with minimum limits of $1,000,000 each accident.
(3) Professional Liability: Professional Liability insurance with minimum limits of $3,000,000 each claim. Covered Professional Services shall specifically include the Banking Services to be performed under the contract and delete any exclusion that may potentially affect the Banking Services to be performed.
(4) Workers' Compensation: Workers' Compensation
Insurance, as required by the State of California and Employer's Liability Insurance with a limit of not less than $1,000,000 each accident for bodily injury and $1,000,000 each employee for bodily injury by disease. (5)
Crime/Employee Dishonesty Policy: $2,000,000
(6) Cyber Liability Policy: $5,000,000
B. Endorsements
(1) The insurance coverages required by Section (A)(1)
Commercial General Liability and (A) (3) Automobile Liability Insurance shall contain the following provisions or be endorsed to provide the following:
Additional Insured: The City of Placentia, its elected
officials, officers, employees, volunteers, boards, agents and representatives shall be additional insureds with regard to liability and defense of suits or claims arising out of the performance of the Banking Services under the Agreement.
(2) Primary Insurance: This insurance shall be primary and any other insurance whether primary, excess, umbrella or contingent insurance, including deductible, or self-insurance available to the insureds added by endorsement shall be in excess of and shall not contribute with this insurance.
(a) The policy or policies of insurance required by
Section (A)(4) Workers' Compensation shall be endorsed, as follows:
i. Waiver of Subrogation: A waiver of subrogation
stating that the insurer waives all rights of
subrogation against the indemnified parties.
C. Notice of Cancellation
Required insurance policies shall not be cancelled or the coverage reduced until a thirty (30) day written notice of cancellation has been served upon the Depositor except ten (10) days shall be allowed for non- payment of premium.
D. Evidence of Insurance
The Service Provider, concurrently with the execution of this Agreement, and as a condition precedent to the effectiveness thereof, shall provide copies of the required policies to the Depositor. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. Evidence that such insurance coverage has been renewed or extended shall be provided to the Depositor. If such coverage is cancelled or reduced, Service Provider shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, provide Depositor with evidence showing that the required insurance has been reinstated or has been provided through another insurance company or companies.
E. Acceptability of Insurers
Each such policy shall be from a company or companies with a current A.M. Best's rating of no less than A:VII and authorized to do business in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law. Any other rating must be approved in writing in accordance with the Depositor.
F. Insurance Obligations of Service Provider
The insurance obligations under this Agreement shall be: (1) all the insurance coverage and/or limits carried by or available to the Service Provider; or (2) the minimum insurance coverage requirements and/or limits shown in this Agreement; whichever is greater.
16. This Agreement is effective as of the date first written above and shall continue for an initial term of five (5) years, with an option to extend on the same terms and conditions for an additional period of two (2) years, resulting in a total term of seven (7) years. The option to extend may be exercised in the sole discretion of the City of Placentia City Administrator by providing written notice to Service Provider. Notwithstanding any other provision of this Agreement, this Agreement may be terminated at any time, with or without cause, by either party giving written notice to the other. Such termination shall be by written notification to the other party of intention to terminate sent by certified mail at 5 least thirty (30) days prior to the termination date. In the event of such termination, the Service Provider shall be paid for authorized Banking Services actually rendered hereunder up to the date of the termination of this Agreement.
17. This Agreement supersedes any and all other agreements, either oral or written, between the parties hereto with respect to the subject and purpose of this Agreement. Each party to this Agreement acknowledges and agrees that no representation, inducements, promises, or agreements, oral or otherwise have been made by any party, or by anyone acting on behalf of any party, which are not embodied herein and agrees that no other agreement, statement, or promise not contained herein shall be valid or binding. The parties hereto agree that this Agreement constitutes the sole and entire understanding and agreement among the signatories and all parties represent and warrant that they are not relying on any promises, representations, or agreements other than those expressly set forth in this Agreement.
18. All parties involved in the execution of this Agreement represent that they are duly authorized to do so.
19. This Agreement is made for the exclusive benefit of Depositor and Service Provider. No third party has any rights under this Agreement. Unless Depositor has Service Provider's prior written consent, Depositor may not use any of the Banking Services to process transactions for third parties or permit others to initiate service transactions on Depositor's behalf.
20. This Agreement is subject to amendment only upon the unanimous consent of the parties hereto and any amendment must be in writing and signed by both parties.
21. This Agreement may be executed in counterparts, each of which shall be original, but all of which shall constitute one and the same instrument.
22. This Agreement shall be governed by the rules and regulations of the account agreements and service agreements requested by Depositor.
23. All notices provided for this agreement shall be mailed to the parties at the address set forth herein or such other address as may be provided hereafter in writing by either party, or via email provided confirmation of e-mail receipt is received.
Service Provider:
Citizens Business Bank
Attention: Government Services
701 N. Haven Avenue
Ontario, CA 91764
Email: [email protected]
6 Depositor:
City of Placentia
Attention: Jennifer Lampman,
Director of Finance
401 E. Chapman Ave.
Placentia, CA 92870
Email: [email protected]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first written above.
DEPOSITOR SERVICE PROVIDER
CITY OF PLACENTIA CITIZENS BUSINESS BANK
Signature � Signature
Damien Arrula Deborah George
Printed Name Printed Name
City Administrator
Title
APPROVED AS TO FORM:
Christian L. Bettenhausen, City Attorney
APPROVED AS TO INSURANCE:
Rosanna Ramirez, Risk Management
7 SVP/MGR, Government Services
Title
Date:
Date:
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Insurance Certificates have been ordered listing City of Placentia as additional insured. Will be finalized and verified prior to execution of the agreement by signatories.