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2019-24 Bank of the West - Banking Services
TO: FROM: DATE: ta (2a�tra - ("FM DFSL-AT - MEMORANDUM Jon McMillen, City Manager Karla Campos, Finance Director July 29, 2019 RE: Bank of the West, Agr# Services. Banking and Merchant Attached for your signature is the Banking and Merchant Services Contract with Bank of the West. Please sign the attached agreement(s) and return to the City Clerk for processing and distribution. Requesting department Shall: deck and at h the items below as aulpropriate• X Contract payments will be charged to account number: 10 1 Wro-6a1o,-;2- Amount of Agreement, Amendment, Change Order, etc.: $ A Conflict of Interest Form 700 Statement of Economic Interests from Consultant(s) is attached with no reportable interests in LQ or reportable interests A Conflict of Interest Form 700 Statement of Economic Interests is not required because this Consultant does not meet the definition in FPPC regulation 18701(2). Authority to execute this agreement is based upon: X Approved by the City Council on June 4, 2019 X City Manager's signature authority provided under Resolution No. 2019-021 for budgeted expenditures of $50,000 or less. This expenditure is $ and authorized by Director X Initial to certify that 3 written informal bids or proposals were received and considered in selection The following re uired documents are attached to the agreement: X nsura ce certifi.ates as required by the agreement (approved by Risk Manager on "! _l date) Performance bonds as required by the agreement (originals) City of La Quinta Business License number A requisition for a Purchase Order has been prepared (amounts over $5,000) AGREEMENT FOR CONTRACT SERVICES THIS AGREEMENT FOR CONTRACT SERVICES (the "Agreement") is made and entered into by and between the CITY OF LA QUINTA, ("City"), a California municipal corporation, and Bank of the West, a subsidiary of holding company BancWest Corporation, BancWest Corporation is a wholly owned subsidiary of BNP Paribas ("Contracting Party"). The parties hereto agree as follows: 1. SERVICES OF CONTRACTING PARTY. 1.1 Scope of Services. In compliance with all terms and conditions of this Agreement, Contracting Party shall provide those services related to Banking and Merchant, Project No. NA , as specified in the 'Scope of Services" attached hereto as "Exhibit A" and incorporated herein by this reference (the 'Services"). Contracting Party represents and warrants that Contracting Party is a provider of first-class banking and/or services and Contracting Party is experienced in performing the Services contemplated herein and, in light of such status and experience, Contracting Party covenants that it shall follow industry standards in performing the Services required hereunder, and that all materials, if any, will be of good quality, fit for the purpose intended. For purposes of this Agreement, the phrase "industry standards" shall mean those standards of practice recognized by one or more first-class firms performing similar services under similar circumstances. 1.2 Compliance with Law. All Services rendered hereunder shall be provided in accordance with all ordinances, resolutions, statutes, rules, regulations, and laws of the City and any Federal, State, or local governmental agency of competent jurisdiction. 1.3 Wage and Hour Compliance Contracting Party shall comply with applicable Federal, State, and local wage and hour laws. 1.4 Licenses, Permits, Fees and Assessments. Except as otherwise specified herein, Contracting Party shall obtain at its sole cost and expense such licenses, permits, and approvals as may be required by law for the performance of the Services required by this Agreement, including a City of La Quinta business license. Contracting Party and its employees, agents, and subcontractors shall, at their sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits, and approvals that are legally required for the performance of the Services required by this Agreement. Contracting Party shall have the sole obligation to pay for any fees, assessments, and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for the performance of the Services required by this Agreement, and shall indemnify, defend (with counsel selected by City), and hold City, its elected officials, officers, employees, and agents, free and harmless against any such fees, assessments, taxes, penalties, or interest levied, assessed, or imposed against City hereunder. Contracting Party shall be responsible for all subcontractors' compliance with this Section. 1.5 Familiarity with Work. By executing this Agreement, Contracting Party warrants that (a) it has thoroughly investigated and considered the Services to be performed, (b) it has investigated the site where the Services are to be performed, if any, and fully acquainted itself with the conditions there existing, (c) it has carefully considered how the Services should be performed, and (d) it fully understands the facilities, difficulties, and restrictions attending performance of the Services under this Agreement. Should Contracting Party discover any latent or unknown conditions materially differing from those inherent in the Services or as represented by City, Contracting Party shall immediately inform City of such fact and shall not proceed except at Contracting Party's risk until written instructions are received from the Contract Officer (as defined in Section 4.2 hereof). 1.6 Standard of Care. Contracting Party acknowledges and understands that the Services contracted for under this Agreement require specialized skills and abilities and that, consistent with this understanding, Contracting Party's work will be held to an industry standard of quality and workmanship. Consistent with Section 1.5 hereinabove, Contracting Party represents to City that it holds the necessary skills and abilities to satisfy the industry standard of quality as set forth in this Agreement. Contracting Party shall adopt reasonable methods during the life of this Agreement to furnish continuous protection to the Services performed by Contracting Party, and the equipment, materials, papers, and other components thereof to prevent losses or damages, and shall be responsible for all such damages, to persons or property, until acceptance of the Services by City, except such losses or damages as may be caused by City's own negligence. The performance of Services by Contracting Party shall not relieve Contracting Party from any obligation to correct any incomplete, inaccurate, or defective work at no further cost to City, when such inaccuracies are due to the negligence of Contracting Party. 1.7 Additional Services. In accordance with the terms and conditions of this Agreement, Contracting Party shall perform services in addition to -2- those specified in the Scope of Services ('Additional Services") only when directed to do so by the Contract Officer, provided that Contracting Party shall not be required to perform any Additional Services without compensation. Contracting Party shall not perform any Additional Services until receiving prior written authorization (in the form of a written change order if Contracting Party is a contractor performing the Services) from the Contract Officer, incorporating therein any adjustment in the Contract Sum, and, which said adjustments are subject to the written approval of Contracting Party. It is expressly understood by Contracting Party that the provisions of this Section shall not apply to the Services specifically set forth in the Scope of Services or reasonably contemplated therein. It is specifically understood and agreed that oral requests and/or approvals of Additional Services shall be barred and are unenforceable. Failure of Contracting Party to secure the Contract Officer's written authorization for Additional Services shall constitute a waiver of any and all right to adjustment of the Contract Sum or time to perform this Agreement, whether by way of compensation, restitution, quantum meruit, or the like, for Additional Services provided without the appropriate authorization from the Contract Officer. Compensation for properly authorized Additional Services shall be made in accordance with Section 2.3 of this Agreement. 1.8 Special Requirements. Additional terms and conditions of this Agreement, if any, which are made a part hereof are set forth in ""Exhibit 0" (the ""Special Requirements"), which is incorporated herein by this reference and expressly made a part hereof. In the event of a conflict between the provisions of the Special Requirements and any other provisions of this Agreement, the provisions of the Special Requirements shall govern. 2. COMPENSATION. 2.1 Contract Sum. For the Services rendered pursuant to this Agreement, Contracting Party shall be compensated in accordance with ""Exhibit B" (the "Schedule of Compensation"), except as provided in Section 1.7. The method of compensation set forth in the Schedule of Compensation may include a lump sum payment upon completion, payment in accordance with the percentage of completion of the Services, payment for time and materials based upon Contracting Party's rate schedule, but not exceeding the Contract Sum, or such other reasonable methods as may be specified in the Schedule of Compensation. The Contract Sum shall include the attendance of Contracting Party at all project meetings reasonably deemed necessary by City; Contracting Party shall not be entitled to any additional compensation for attending said meetings. Compensation may include reimbursement for actual and necessary expenditures for reproduction costs, transportation expense, telephone expense, and similar costs and expenses when and if specified in the Schedule of Compensation. Regardless of the -3- method of compensation set forth in the Schedule of Compensation, Contracting Party's overall compensation shall not exceed the Contract Sum, except as provided in Section 1.7 of this Agreement. 2.2 Method of Billing & Payment. The City will receive monthly account analysis statements which will reflect monthly earnings credit and monthly banking service fees. At the end of each calendar quarter, all banking service fees and earnings credits are accumulated and netted together. Any shortage in earnings credits to offset banking fees will be invoiced to the City. Any excess in earnings credit at the end of each quarter shall not be carried over into the subsequent month and quarterly period. Such invoice shall describe in detail the Services provided. Such invoice shall contain a certification by a principal member of Contracting Party specifying that the payment requested is for Services performed in accordance with the terms of this Agreement. Upon approval in writing by the Contract Officer and subject to retention pursuant to Section 8.3, City will pay Contracting Party for all items stated thereon which are approved by City pursuant to this Agreement no later than thirty (30) days after invoices are received by the City's Finance Department. 2.3 Compensation for Additional Services. Additional Services approved in advance by the Contract Officer pursuant to Section 1.7 of this Agreement shall be paid for in an amount agreed to in writing by both City and Contracting Party in advance of the Additional Services being rendered by Contracting Party. Any compensation for Additional Services amounting to five percent (5%) or less of the Contract Sum may be approved by the Contract Officer. Any greater amount of compensation for Additional Services must be approved by the La Quinta City Council, the City Manager, or Department Director, depending upon City laws, regulations, rules and procedures concerning public contracting. Under no circumstances shall Contracting Party receive compensation for any Additional Services unless prior written approval for the Additional Services is obtained from the Contract Officer pursuant to Section 1.7 of this Agreement. 3. PERFORMANCE SCHEDULE. 3.1 Time of Essence. Time is of the essence in the performance of this Agreement. If the Services not completed in accordance with the Schedule of Performance, as set forth in Section 3.2 and "Exhibit C", it is understood that the City will suffer damage. 3.2 Schedule of Performance. All Services rendered pursuant to this Agreement shall be performed diligently and within the time period established in ""Exhibit C" (the ""Schedule of Performance"). Extensions to the -4- time period specified in the Schedule of Performance may be approved in writing by the Contract Officer. 3.3 Force Majeure. The time period specified in the Schedule of Performance for performance of the Services rendered pursuant to this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of Contracting Party, including, but not restricted to, acts of God or of the public enemy, fires, earthquakes, floods, epidemic, quarantine restrictions, riots, strikes, freight embargoes, acts of any governmental agency other than City, and unusually severe weather, if Contracting Party shall within ten (10) days of the commencement of such delay notify the Contract Officer in writing of the causes of the delay. The Contract Officer shall ascertain the facts and the extent of delay, and extend the time for performing the Services for the period of the forced delay when and if in the Contract Officer's judgment such delay is justified, and the Contract Officer's determination shall be final and conclusive upon the parties to this Agreement. Extensions to time period in the Schedule of Performance which are determined by the Contract Officer to be justified pursuant to this Section shall not entitle the Contracting Party to additional compensation in excess of the Contract Sum. 3.4 Term. Unless earlier terminated in accordance with the provisions in Article 8.0 of this Agreement, the term of this agreement shall commence on June 4, 2019 and terminate on June 4, 2024 ("Initial Term"). This Agreement may be extended for five additional year(s) upon mutual agreement by both parties ('Extended Term"). 4. COORDINATION OF WORK. 4.1 Representative of Contracting Party. The following principals of Contracting Party ("Principals") are hereby designated as being the principals and representatives of Contracting Party authorized to act in its behalf with respect to the Services specified herein and make all decisions in connection therewith: (a) Lily Ng, Government Banking Manager E-mail: lily. ng Ca botw.com (b) Matthew Kirschenman, Senior Government Relationship Manager E-mail: matthew.kirschenman@botw.com -5- It is expressly understood that the experience, knowledge, capability, and reputation of the foregoing Principals were a substantial inducement for City to enter into this Agreement. Therefore, the foregoing Principals shall be responsible during the term of this Agreement for directing all activities of Contracting Party and devoting sufficient time to personally supervise the Services hereunder. For purposes of this Agreement, the foregoing Principals may not be changed by Contracting Party and no other personnel may be assigned to perform the Services required hereunder without the express written approval of City. 4.2 Contract Officer. The "Contract Officer" shall be the Finance Director or such other person as may be designated in writing by the City Manager of City. It shall be Contracting Party's responsibility to assure that the Contract Officer is kept informed of the progress of the performance of the Services, and Contracting Party shall refer any decisions, that must be made by City to the Contract Officer. Unless otherwise specified herein, any approval of City required hereunder shall mean the approval of the Contract Officer. The Contract Officer shall have authority to sign all documents on behalf of City required hereunder to carry out the terms of this Agreement. 4.3 Prohibition Against Subcontracting or Assignment. The experience, knowledge, capability, and reputation of Contracting Party, its principals, and its employees were a substantial inducement for City to enter into this Agreement. Except as set forth in this Agreement, Contracting Party shall not contract or subcontract with any other entity to perform in whole or in part the Services required hereunder without the express written approval of City. In addition, neither this Agreement nor any interest herein may be transferred, assigned, conveyed, hypothecated, or encumbered, voluntarily or by operation of law, without the prior written approval of City. Transfers restricted hereunder shall include the transfer to any person or group of persons acting in concert of more than twenty five percent (25%) of the present ownership and/or control of Contracting Party, taking all transfers into account on a cumulative basis. Any attempted or purported assignment or contracting or subcontracting by Contracting Party without City's express written approval shall be null, void, and of no effect. No approved transfer shall release Contracting Party of any liability hereunder without the express consent of City. 4.4 Independent Contractor. Neither City nor any of its employees shall have any control over the manner, mode, or means by which Contracting Party, its agents, or its employees, perform the Services required herein, except as otherwise set forth herein. City shall have no voice in the selection, discharge, supervision, or control of Contracting Party's employees, servants, representatives, or agents, or in fixing their number or hours of service. M Contracting Party shall perform all Services required herein as an independent contractor of City and shall remain at all times as to City a wholly independent contractor with only such obligations as are consistent with that role. Contracting Party shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. City shall not in any way or for any purpose become or be deemed to be a partner of Contracting Party in its business or otherwise or a joint venture or a member of any joint enterprise with Contracting Party. Contracting Party shall have no power to incur any debt, obligation, or liability on behalf of City. Contracting Party shall not at any time or in any manner represent that it or any of its agents or employees are agents or employees of City. Except for the Contract Sum paid to Contracting Party as provided in this Agreement, City shall not pay salaries, wages, or other compensation to Contracting Party for performing the Services hereunder for City. City shall not be liable for compensation or indemnification to Contracting Party for injury or sickness arising out of performing the Services hereunder. Notwithstanding any other City, state, or federal policy, rule, regulation, law, or ordinance to the contrary, Contracting Party and any of its employees, agents, and subcontractors providing services under this Agreement shall not qualify for or become entitled to any compensation, benefit, or any incident of employment by City, including but not limited to eligibility to enroll in the California Public Employees Retirement System ("PERS") as an employee of City and entitlement to any contribution to be paid by City for employer contributions and/or employee contributions for PERS benefits. Contracting Party agrees to pay all required taxes on amounts paid to Contracting Party under this Agreement, and to indemnify and hold City harmless from any and all taxes, assessments, penalties, and interest asserted against City by reason of the independent contractor relationship created by this Agreement. Contracting Party shall fully comply with the workers' compensation laws regarding Contracting Party and Contracting Party's employees. Contracting Party further agrees to indemnify and hold City harmless from any failure of Contracting Party to comply with applicable workers' compensation laws. City shall have the right to offset against the amount of any payment due to Contracting Party under this Agreement any amount due to City from Contracting Party as a result of Contracting Party's failure to promptly pay to City any reimbursement or indemnification arising under this Section. 4.5 Identity of Persons Performing Work. Contracting Party represents that it employs or will employ at its own expense all personnel required for the satisfactory performance of any and all of the Services set forth herein. Contracting Party represents that the Services required herein will be performed by Contracting Party or under its direct supervision, and that all personnel engaged in such work shall be fully qualified and shall be -7- authorized and permitted under applicable State and local law to perform such tasks and services. 4.6 City Cooperation. City shall provide Contracting Party with any plans, publications, reports, statistics, records, or other data or information pertinent to the Services to be performed hereunder which are reasonably available to Contracting Party only from or through action by City. 5. INSURANCE. 5.1 Insurance. Prior to the beginning of any Services under this Agreement and throughout the duration of the term of this Agreement, Contracting Party shall procure and maintain, at its sole cost and expense, and submit concurrently with its execution of this Agreement, policies of insurance as set forth in "Exhibit E" (the "Insurance Requirements") which is incorporated herein by this reference and expressly made a part hereof. 5.2 Proof of Insurance. Contracting Party shall provide Certificate of Insurance to Agency along with all required endorsements. Certificate of Insurance and endorsements must be approved by Agency's Risk Manager prior to commencement of performance. 6. INDEMNIFICATION. 6.1 Indemnification. To the fullest extent permitted by law, Contracting Party shall indemnify, protect, defend (with counsel selected by City), and hold harmless City and any and all of its officers, employees, agents, and volunteers as set forth in "Exhibit F" ("Indemnification") which is incorporated herein by this reference and expressly made a part hereof. 7. RECORDS AND REPORTS. 7.1 Reports. Contracting Party shall periodically prepare and submit to the Contract Officer such reports concerning Contracting Party's performance of the Services required by this Agreement as the Contract Officer shall require. Contracting Party hereby acknowledges that City is greatly concerned about the cost of the Services to be performed pursuant to this Agreement. For this reason, Contracting Party agrees that if Contracting Party becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the Services contemplated herein or, if Contracting Party is providing design services, the cost of the project being designed, Contracting Party shall promptly notify the Contract Officer of said fact, circumstance, technique, or event and the estimated increased or decreased cost related thereto and, if Contracting In Party is providing design services, the estimated increased or decreased cost estimate for the project being designed. 7.2 Records. Contracting Party shall keep, and require any subcontractors to keep, such ledgers, books of accounts, invoices, vouchers, canceled checks, reports (including but not limited to payroll reports), studies, or other documents relating to the disbursements charged to City and the Services performed hereunder (the "Books and Records"), as shall be necessary to perform the Services required by this Agreement and enable the Contract Officer to evaluate the performance of such Services. Any and all such Books and Records shall be maintained in accordance with generally accepted accounting principles and shall be complete and detailed. The Contract Officer shall have full and free access to such Books and Records at all times during normal business hours of City, including the right to inspect, copy, audit, and make records and transcripts from such Books and Records. Such Books and Records that are material shall be maintained for a period of three (3) years following completion of the Services hereunder, and City shall have access to such Books and Records in the event any audit is required. In the event of dissolution of Contracting Party's business, custody of the Books and Records may be given to City, and access shall be provided by Contracting Party's successor in interest. Under California Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds Ten Thousand Dollars ($10,000.00), this Agreement shall be subject to the examination and audit of the State Auditor, at the request of City or as part of any audit of City, for a period of three (3) years after final payment under this Agreement. 7.3 Ownership of -Documents. Except for such materials that are created by Contracting Party in connection to this agreement, all drawings, specifications, maps, designs, photographs, studies, surveys, data, notes, computer files, reports, records, documents, and other materials plans, drawings, estimates, test data, survey results, models, renderings, and other documents or works of authorship fixed in any tangible medium of expression, including but not limited to, physical drawings, digital renderings, or data stored digitally, magnetically, or in any other medium prepared or caused to be prepared by Contracting Party, its employees, subcontractors, and agents in the performance of this Agreement (the ""Documents and Materials") shall be the property of City and shall be delivered to City upon request of the Contract Officer or upon the expiration or termination of this Agreement, and Contracting Party shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership use, reuse, or assignment of the Documents and Materials hereunder. Any use, reuse or assignment of such completed Documents and Materials for other projects and/or use of uncompleted documents without specific written In authorization by Contracting Party will be at City's sole risk and without liability to Contracting Party, and Contracting Party's guarantee and warranties shall not extend to such use, revise, or assignment. Contracting Party may retain copies of such Documents and Materials for its own use. Contracting Party shall have an unrestricted right to use the concepts embodied therein. All subcontractors shall provide for assignment to City of any Documents and Materials prepared by them, and in the event Contracting Party fails to secure such assignment, Contracting Party shall indemnify City for all damages resulting therefrom. 7.4 Licensing of Intellectual Property. Except as otherwise provided by Contracting Party, this Agreement creates a non-exclusive and perpetual license for City to copy, use, modify, reuse, or sublicense any and all copyrights, designs, rights of reproduction, and other intellectual property embodied in the Documents and Materials. Contracting Party shall require all subcontractors, if any, to agree in writing that City is granted a non-exclusive and perpetual license for the Documents and Materials the subcontractor prepares under this Agreement. Contracting Party represents and warrants that Contracting Party has the legal right to license any and all of the Documents and Materials. Contracting Party makes no such representation and warranty in regard to the Documents and Materials which were prepared by design professionals other than Contracting Party or provided to Contracting Party by City. City shall not be limited in any way in its use of the Documents and Materials at any time, provided that any such use not within the purposes intended by this Agreement shall be at City's sole risk. 7.5 Release of Documents. The Documents and Materials shall not be released publicly without the prior written approval of the Contract Officer or as required by law. Contracting Party shall not disclose to any other entity (except for an affiliate or parent company of Contracting Party) or person any information regarding the activities of City, except as required by law or as authorized by City. 7.6 Confidential or Personal Identifying Information. Except as otherwise disclosed by Contracting Party, Contracting Party covenants that all City data, data lists, trade secrets, documents with personal identifying information, documents that are not public records, draft documents, discussion notes, or other information, if any, developed or received by Contracting Party or provided for performance of this Agreement are deemed confidential and shall not be disclosed by Contracting Party to any person or entity without prior written authorization by City or unless required by law. City shall grant authorization for disclosure if required by any lawful administrative or legal proceeding, court order, or similar directive with the force of law. All City data, data lists, trade secrets, documents with personal -10- identifying information, documents that are not public records, draft documents, discussions, or other information shall be returned to City upon the termination or expiration of this Agreement. Contracting Party's covenant under this section shall survive the termination or expiration of this Agreement. 8. ENFORCEMENT OF AGREEMENT. 8.1 California Law. This Agreement shall be interpreted, construed, and governed both as to validity and to performance of the parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim, or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Riverside, State of California, or any other appropriate court in such county, and Contracting Party covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. 8.2 Disputes. In the event of any dispute arising under this Agreement, the injured party shall notify the injuring party in writing of its contentions by submitting a claim therefore. The injured party shall continue performing its obligations hereunder so long as the injuring party commences to cure such default within ten (10) days of service of such notice and completes the cure of such default within forty-five (45) days after service of the notice, or such longer period as may be permitted by the Contract Officer; provided that if the default is an immediate danger to the health, safety, or general welfare, City may take such immediate action as City deems warranted. Compliance with the provisions of this Section shall be a condition precedent to termination of this Agreement for cause and to any legal action, and such compliance shall not be a waiver of any party's right to take legal action in the event that the dispute is not cured, provided that nothing herein shall limit City's right to terminate this Agreement without cause pursuant to this Article 8.0. During the period of time that Contracting Party is in default, City shall hold all invoices and shall, when the default is cured, proceed with payment on the invoices. In the alternative, City may, in its sole discretion, elect to pay some or all of the outstanding invoices during any period of default. 8.3 Retention of Funds. City may withhold from any monies payable to Contracting Party sufficient funds to compensate City for any losses, costs, liabilities, or damages it reasonably believes were suffered by City due to the default of Contracting Party in the performance of the Services required by this Agreement. 8.4 Waiver. No delay or omission in the exercise of any right or remedy of a non -defaulting party on any default shall impair such right or -11- remedy or be construed as a waiver. City's consent or approval of any act by Contracting Party requiring City's consent or approval shall not be deemed to waive or render unnecessary City's consent to or approval of any subsequent act of Contracting Party. Any waiver by either party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. 8.5 Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the parties are cumulative and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. 8.6 Legal Action. In addition to any other rights or remedies, either party may take legal action, at law or at equity, to cure, correct, or remedy any default, to recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. 8.7 Termination Prior To Expiration Of Term. This Section shall govern any termination of this Agreement, except as specifically provided in the following Section for termination for cause. City reserves the right to terminate this Agreement at any time, with or without cause, upon a six- month (180) days' written notice to Contracting Party. Upon receipt of any notice of termination, Contracting Party shall immediately cease all Services hereunder except such as may be specifically approved by the Contract Officer. Contracting Party shall be entitled to compensation for all Services rendered prior to receipt of the notice of termination and for any Services authorized by the Contract Officer thereafter in accordance with the Schedule of Compensation or such as may be approved by the Contract Officer, except amounts held as a retention pursuant to this Agreement. 8.8 Termination for Default of Contracting Party_. If termination is due to the failure of Contracting Party to fulfill its obligations under this Agreement, Contracting Party shall vacate any City -owned property which Contracting Party is permitted to occupy hereunder and City may, after compliance with the provisions of Section 8.2, take over the Services and prosecute the same to completion by contract or otherwise, and Contracting Party shall be liable to the extent that the total cost for completion of the Services required hereunder exceeds the compensation herein stipulated (provided that City shall use reasonable efforts to mitigate such damages), and City may withhold any payments to Contracting Party for the purpose of setoff or partial payment of the amounts owed City. -12- 8.9 Attorneys' Fees. If either party to this Agreement is required to initiate or defend or made a party to any action or proceeding in any way connected with this Agreement, the prevailing party in such action or proceeding, in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to reasonable attorneys' fees; provided, however, that the attorneys' fees awarded pursuant to this Section shall not exceed the hourly rate paid by City for legal services multiplied by the reasonable number of hours spent by the prevailing party in the conduct of the litigation. Attorneys' fees shall include attorneys' fees on any appeal, and in addition a party entitled to attorneys' fees shall be entitled to all other reasonable costs for investigating such action, taking depositions and discovery, and all other necessary costs the court allows which are incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment. The court may set such fees in the same action or in a separate action brought for that purpose. 9. CITY OFFICERS AND EMPLOYEES: NONDISCRIMINATION. 9.1 Non -liability of City Officers and Employees. No officer, official, employee, agent, representative, or volunteer of City shall be personally liable to Contracting Party, or any successor in interest, in the event or any default or breach by City or for any amount which may become due to Contracting Party or to its successor, or for breach of any obligation of the terms of this Agreement. 9.2 Conflict of Interest. Contracting Party covenants that neither it, nor any officer or principal of it, has or shall acquire any interest, directly or indirectly, which would conflict in any manner with the interests of City or which would in any way hinder Contracting Party's performance of the Services under this Agreement. Contracting Party further covenants that in the performance of this Agreement, no person having any such interest shall be employed by it as an officer, employee, agent, or subcontractor without the express written consent of the Contract Officer. Contracting Party agrees to at all times avoid conflicts of interest or the appearance of any conflicts of interest with the interests of City in the performance of this Agreement. No officer or employee of City shall have any financial interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to this Agreement which effects his financial interest or the financial interest of any corporation, partnership or association in which he is, directly or indirectly, interested, in violation of any State statute or regulation. Contracting Party warrants that it has not paid or given and will not pay or give any third party any money or other consideration for obtaining this Agreement. -13- 9.3 Covenant aciainst Discrimination. Contracting Party covenants that, by and for itself, its heirs, executors, assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of any impermissible classification including, but not limited to, race, color, creed, religion, sex, marital status, sexual orientation, national origin, or ancestry in the performance of this Agreement. Contracting Party shall take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex, marital status, sexual orientation, national origin, or ancestry. 10. MISCELLANEOUS PROVISIONS. 10.1 Notice. Any notice, demand, request, consent, approval, or communication either party desires or is required to give the other party or any other person shall be in writing and either served personally or sent by prepaid, first-class mail to the address set forth below. Either party may change its address by notifying the other party of the change of address in writing. Notice shall be deemed communicated forty-eight (48) hours from the time of mailing if mailed as provided in this Section. To City: CITY OF LA QUINTA Attention: Karla Romero, Finance Director 78-495 Calle Tampico La Quinta, California 92253 To Contracting Party: Bank of the West Attention: Matthew Kirschenman Vice President 300 S Grand Ave, 5t" Floor Mail Sort: SC-CAL-05-H Los Angeles, CA 90071 10.2 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this Agreement or any other rule of construction which might otherwise apply. 10.3 Section Headings and Subheadings. The section headings and subheadings contained in this Agreement are included for convenience only and shall not limit or otherwise affect the terms of this Agreement. 10.4 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and such counterparts shall constitute one and the same instrument 10.5 Integrated Agreement. This Agreement including the exhibits hereto is the entire, complete, and exclusive expression of the understanding IEll of the parties. It is understood that there are no oral agreements between the parties hereto affecting this Agreement and this Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements, and understandings, if any, between the parties, and none shall be used to interpret this Agreement. This agreement includes the Contracting Party's standard documentation and disclosures, which includes: • Deposit Account Disclosure for Business Accounts (Attachment 1) • Contract for Deposit of Public Funds (Attachment 2) • Public Agency Signature Card (Attachment 3) • Treasury Management Agreement/Terms & Conditions (Attachment 4) 10.6 Amendment. No amendment to or modification of this Agreement shall be valid unless made in writing and approved by Contracting Party and by the City Council of City. The parties agree that this requirement for written modifications cannot be waived and that any attempted waiver shall be void. 10.7 Severability. In the event that any one or more of the articles, phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable, such invalidity or unenforceability shall not affect any of the remaining articles, phrases, sentences, clauses, paragraphs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder unless the invalid provision is so material that its invalidity deprives either party of the basic benefit of their bargain or renders this Agreement meaningless. 10.8 Unfair Business Practices Claims. If applicable, in entering into this Agreement, Contracting Party offers and agrees to assign to City all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. § 15) or under the Cartwright Act (Chapter 2, (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of goods, services, or materials related to this Agreement. This assignment shall be made and become effective at the time City renders final payment to Contracting Party without further acknowledgment of the parties. 10.9 No Third Party Beneficiaries. With the exception of the specific provisions set forth in this Agreement, there are no intended third -party beneficiaries under this Agreement and no such other third parties shall have any rights or obligations hereunder. 10.10Authority. The persons executing this Agreement on behalf of each of the parties hereto represent and warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver -15- this Agreement on behalf of said party, (iii) by so executing this Agreement, such party is formally bound to the provisions of this Agreement, and (iv) that entering into this Agreement does not violate any provision of any other Agreement to which said party is bound. This Agreement shall be binding upon the heirs, executors, administrators, successors, and assigns of the parties. [SIGNATURES ON FOLLOWING PAGE] -16- IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates stated below. CITY OF LA QUINTA, a California Municipal Corporation ❑n McMillen, City Manager City of La Quinta, California Dated: ATTEST: MONIKA RADfEVA, Clerk La Quinta, California APPROVED AS TO FORM: WILLIAM H. IHRKE, City Attorney City of La Quinta, California CONTRACTING PARTY: By: Name: Matthew Kirschenman Title: Senior Government Relationship Manager -17- Exhibit A Scope of Services 1. Services to be Provided: Contracting party shall provide the City banking and merchant services including but not limited to: • Online banking processes and information reporting, • Account reconciliation services, • Wire transfers, • Payroll tax processing, • State activity including Local Agency Investment Fund transfers, • Merchant services, and Is Purchasing card(s) Exhibit A Page 1 of 1 Exhibit B Schedule of Compensation With the exception of compensation for Additional Services, provided for in Section 2.3 of this Agreement, the Contracting Party shall be compensated in accordance with the attached "Exhibit B". Exhibit B Page 1of1 EXHIBIT B Item Per Unit Cost Estimated Monthly Unit Volume Total Monthly Cost Estimated Total Annual Cost Comments Balance & Compensation Information Services Deposit Insurance -Bank Assessment 0.10 3,289,16 $ 328,92 $ 3,946.99 General Account Services .Account Maintenance 7.00 3.00 $ 21.00 $ 252.00 .ZBA De osito + Master Maint 8.00 1.00 $ 8.00 $ 96.00 .ZBA Subsidiary Account Maint 8.00 1.00 $ 8.00 $ 96.00 Debits Posted -Other - 27.00 $ - $ - No Charae Credits Posted -Other - - $ $ No Charge Paper Deposit Statement Mailed - - $ - $ Depository Services Banking Center Deposit -CA 0.80 22.00 $ 17.60 $ 211.20 Vault Deposit -CA 1A0 44.00 $ 48.40 $ 580.80 Dep Conditionin -Surch -Vault - - $ $ Curr/Coin De /$100 Vault -CA 0.11 666.04 $ 73.26 $ 879.17 Vault Deposit -Extended Hours -CA N/A $ - $ CKS Dep Un Encoded Items 0.05 26.00 $ 1.30 $ 15.60 Returns-Chargeback 2.25 - $ - $ - 3rd Party Courier -Vault N/A - $ - $ - Courier bills direct to City Mail Notification -Receipt -Vault 2.00 - $ - $ - Deposit Correction -Cash 5.00 - $ - $ Deposit Correction -Non Cash 2.00 - $ - $ Paper Disbursement Services ARP PPay Maint-No Recon 35.00 1.00 $ 35.00 $ 420.00 ARP Full mo. Maint General Checks Paid Truncated 0.07 327.00 $ 22.89 $ 274.68 NSF Items Paid/Returned 2.25 $ - $ - Payee Positive Pay Maint 55,00 1.00 $ 55,00 $ 660.00 Payee Pos Pa w/o Reconcilement Payee Positive Pay -Issue Match - 327.00 $ - $ - No Charge Positive Pay Exceptions 0,75 - $ - $ - Stop Pay Automated-12 months 7.50 - $ - $ - ARP PPav No Recon Input Item 0.06 310.00 $ 18.60 $ 223.20 CD Rom Maintenance - $ - $ - No Char e Image Maintenance 40.00 $ - $ - Image Express Online Flat Rate; all accounts, all items; 7 yr hist. Image Retrieval CPO 0.055 1.00 $ 0.06 $ 0.66 image via Prev Dav R tq - 90 day hist On Line Image Retrieval CPO 0.055 7,00 $ 0.39 $ 4.62 Image via Prev Day Rptq - 90 day hist CD Rom Disk 12.00 1.00 $ 12.00 $ 144.00 CD Rom per Image 0.03 327.00 $ 9.81 $ 117.72 ARP Positive Pay Notif - - $ - $ - No Charge ARP Issue Posted Notif - - I $ - $ No Charge ARP Issue Recd Notif - - $ $ No Charge ARP PPay Input File Trans I - $ $ No Charge Paper Disb Recon Services ARP Void Cancel Items 0.06 - $ $ General ACH Services ACH Monthly Maintenance (w) 30.00 1.00 $ 30.00 $ 36000 ACH Corporate On Us Credits 0.05 - $ - $ - ACH Corporate Off Us Credits I 0,05 251.00 $ 12.55 $ 150.60 Consumer Credit On Us Credits (w) 0,05 16,00 $ 0.80 $ 9.60 Consumer Credit Off Us Credits (w) 0.05 - $ - $ - PC Tax Payment 3.00 - $ - $ - ACH Blocks Auth Instructions 5.00 - $ - $ Account Block ACH Blocks Auth Maintenance 0.75 - $ - $ Maintenance per Filter ACH Blocks Auth Add -Change 2.25 - $ - $ Add/Change per Filter ACH Debit Received Item w 0.08 - $ - $ - ACH Credit Received Item w 008 138.00 $ 11.04 $ 132.48 ACH Return Item w 200 I - $ - $ - ACH Input -Transmission w 750 - $ - $ via transmission: no charge online ACH Delete/Reversal w) 800 - $ - $ per file ACH Notif of Change (NOC) 200 - $ - $ ACH Optional Repo rts-E lectro n ic 0.35 - $ - $ ACH Optional Reports -Fax w N/A - $ - $ Online Only - 0.35 each ACH Optional Reports -Mail w N/A - $ $ Online Only - 0.35 each ACH Standard Reports -Mail (w) N./A - $ $ Online Only - 0.35 each ACH Standard Reports -Electronic 0.35 - $ $ ACH Standard Reports -Fax w N/A $ - I $ Online Only - 0.35 each Wire & Other Funds Transfer Svc GP Mthly Maint Basic 10.00 1.00 $ 10.00 1 $ 120.00 Online Wire Maint. Item Per Unit Cost Estimated Monthly Unit Volume Total Monthly Cost Estimated Total Annual Cost Comments Electronic Wire put -Domestic 8.00 2.00 $ 16.00 $ 192.00 Book Credit. 0.35 - $ - $ - Book transfer charae Outgoing Wire Confirm Notif - - $ $ No Charge Wire Payee Advising N/A - $ $ GPS Confirms - $ $ No Char e Pend Wire Approval Notif - - $ - $ - No Char e Incoming Wire Notif-Email - - $ - $ - No Char e GP Cust Mant Temp Storage - - $ - $ - No Charge Incoming Domestic Wire 8.00 2.00 $ 16.00 $ 192.00 Wire Advice -Phone 15.00 - $ - $ - On Line Information Services Previous Day Account Fee - - $ $ See WebDirect Info Rptg fees below Previous Day Standard Item - - $ $ See WebDirect Info Rptg fees below Previous Day Maintenance - - $ $ No Charge Email Notification Schedule - - $ - $ I No Charge Online Subscription - 1.00 $ - $ - I No Charge Per Image Access 0,055 - $ $ I Image via Prev Day R t - 90 day hist Service EnhancementslOther Remote Deposit Services 45.00 1.00 $ 45.00 $ 540.00 Monthly Maint. 1 st acct Ima a Cash Letter De osits 0,65 21.00 $ 13.65 $ 163.80 RDC per deposit Totals - Monthly and Annual Fees 815.26 6,783.12 Other Information Earnings Credit Rate for August 2018 1,50% - $ - $ - Uncollected Funds Rate (%)015 Prime +2.00% - $ - $ - Overdraft Rate % Prime +2.00% - $ - $ - Fixed Pricing Guarantee # of Years 5.00 - $ - $ - NSF/OD Charge 1-4 Occurrences 18.00 - $ - $ - NSFIOD Charge 5+ Occurrences 22.00 $ - $ - Addibonal RDC Location/DDA Fee 8.00 $ - $ - RDC Deposits Processed 0.65 $ - $ - RDC Checks .De osited 0.04 890.00 $ 35.60 $ 427.20 Non Customer Check Cashed - 2.00 $ - $ - Foreign Item Deposited 3.00 2.00 $ 6.00 $ 7200. Canadian Items (USD) WebDirect Information Reporting Online Setup & Trainina WAIVED $ - $ - No Charae Monthly Maintenance - Includes 5 accounts 40.00 1.00 $ 40.00 $ 480.00 Additional Mo. Maint. 6+ accounts 6.00 $ - $ - Prev Summary Balance Reported Items 1-500 Included 500.00 $ - $ - Prev Summary Balance Reported Items 501-1.000 0.08 $ - $ - Prev Summary Balance Reported Items 1.001 + 0.06 $ - $ - Prev Detail Items - 1-500 Included 500.00 $ - $ - Prev Detail Items - 500-1,000 0.08 13100 $ 10.64 $ 127.68 Prev Detail Items - 1,001+ 0.06 $ - $ - Curr Summary Balance Reported Items 1-500 Included 500.00 $ - $ - Curr Summary Balance Reported Items 501-1,000 0.08 $ - $ - Curr Summary Balance Reported Items 1,001 + 0.06 I $ - $ - Curr Detail Items - 1-500 Included 500.00 $ - I $ - Curr Detail Items - 500-1,000 0.08 $ 1 $ - Curr Detail Items - 1,001+ 0.06 $ $ Extended Storage - 180 Days(per account 22.00 $ $ Extended Storage - 1 Year(per account 50.00 $ $ - Special Reports - Analysis Statement 0.35 4.00 $ 1.40 $ 16.80 Special Reports - Deposit Statement 0.35 3.00 $ 1.05 $ 12.60 Special Reports - ACH Reports 0.35 $ - $ - Special Reports - Acct Recon Reports 0.35 $ $ - Check Imaaes viewed 0.06 $ - $ - Stop Payments 6 mo. 5.00 $ - $ Stop Payments 12 mo. T50 $ - $ Stop Payment Cancellation 2.75 $ - $ - ,Account Level Billing Report 35.00 $ - $ - Online Wire Transfer Book Wire 1.75 $ - $ - Transfer To LAIF International Wires 12.00 $ - $ - IncominQ Wire Transfers 8.00 $ - $ Incoming Wire Notification by Fax 8.00 $ - $ - Incoming Wire Notification by Phone 8.00 $ $ - Incoming Wire Notification by Mail 0.75 $ - $ - Online ACH Services No charge for file upload Monthly Maintenance 18.00 $ - $ - Item Per Unit Cost Estimated Monthly Unit Volume Total Monthly Cost Estimated Total Annual Cost Comments Per Transaction 1-1 000 0.08 $ S Per Transaction 1 001-1 000 0.06 $ S Returned Item 2.00 $ S - ACH Servlus Direct Input Transmission Setup Fee (One Time) WAIVED $ $ - No Charge Vendor Input Transmission Setup Fee One Time) WAIVED $ - S - No Charge Monthly Maintenance 30.00 $ - $ - Additional Company IDs 30.00 $ - $ - Input Per Transmission 7,50 $ - $ - Transactions Processed - Per Item 0.05 $ - $ - ACH Addenda Character 0.0050 $ - $ - Prenote per transaction 0.010 $ - $ - Returned Item 2,00 $ - $ - ACH Return File -per month 75,00 $ - $ - ACH Receipt File - per month 75.00 $ - S - Chan es /Reversals/Deletions per File 8.00 $ - $ - Chan es/Deletions per Batch 8.00 $ - $ - Batch Reversals 25.00 $ - S - Rejected Debits and Credits 0.35 $ - S - Branch Cash Services Currency Deposited per dollar, Branch 0.00140 S - $ - Coin Deposited - Loose, per $1 0,03 S - $ - Coin Deposited - Rolls 0.10 S - S - Coin Bags - FRB Standard 2.25 S - $ - Coin Ba s - Non -FRB Standard 4.00 $ - $ - Non -Standard Bags - Mixed Denomination 10,00 $ - $ - Cash Orders 2.50 S - S - Coin Supplied - Individual Roll 0,10 $ - $ - Coin Supplied - Standard Box 2.50 $ - $ - Currency Supplied. per $1 0.00140- Dual Control Dep. Processing, per dep. 0,60 $ S Deposit Adjustments 2,00 $ - $ - Cashiers Checks 4.00 $ $ - Copy of Paid Check 2.50 S - $ Foreign Item Deposited - Collection 50.00 S - S - Cash Vault Deposits 1.10 $ $ - Adjustments 5,00 $ - $ - Currency Deposited per dollar Standard 0,00110 $ $ - Non -Standard 0.00130 $ - $ - Cash Bag Deposit Processing Fee 0,25 $ - $ - Mixed Baa Deposit Processing Fee 0.50 $ - $ - Coin Deposited Standard Sorted 2.40 $ - $ - Standard Half 2,20 $ - $ - Non -Standard - Partial/Mixed 4.70 $ - $ - Subject to Count 8,50 $ - $ - Rolled Coin 0.85 $ - $ - Cash Orders Automated Touchtone 2.55 S - $ Non -Electronic 13.00 $ $ Late/EmergencyLate/Emergency 30.00 $ - $ Touchtone Standing Order 3.00 $ $ Standing 2.00 $ S Standing Order Change(per location 20.00 $ - $ Currency/Coin Su lied Currency - Standard 0.00090 $ - $ Currency - Non -Standard 0.00120 S $ Coin Full Box 3,40 S - $ Coin Half Box 2,25 S - $ Coin per Roll 0.085 S $ De osit Recei is and Adjustment -Notices Adjustment - Electronic 0.85 I S $ Receipt - Electronic 0.85 $ S - Adjustment - Mailed 2.75 $ $ Receipt - Mailed 2,55 $ $ - Adjustment - Faxed 2.00 $ $ Receipt - Faxed 2.00 $ S - Supplies/Vendor Billing Cost + 15% $ $ - Item Per Unit Cost Estimated Monthly Unit Volume Total Monthly Cost Estimated Total Annual Cost Comments Research(per hour 30.00 $ - $ Incorrect Packaging(per occurance 40.00 $ S TaxDirect l Enrollment - One Time 12.00 $ $ Account Maintenance - per change 3.00 $ $ Federal Tax Payment Fee 3.00 $ - S State Tax Payment Fee 3.00 $ - $ Mailed Receipt Fee 4.00 $ $ Fax Receipts 1.50 $ $ Quarterly Reports 9.00 $ - $ Image Express - CD Rom & Online Online Access 7 year archive) $ $ - Monthly Maintenance 40.00 $ - $ - Image Express Online Flat Rate; all accounts, all items; 7 yr hist. CD Rom 12.00 $ - $ Per Item 0.03 $ - $ - Additional Copies of CD Rom 5.00 $ $ Account Reconcilement Monthly Maintenance - per account 35.00 $ - $ Data Transmission per issue 0.06 $ - S - Void - Cancel.per Issue 0.06 $ - $ Output Transmssion per File 6.00 $ - $ - Monthl Max_ (Daily Output) 75.00 1.00 S 75.00 $ 900.00 Partial Reconcilement Monthly Maintenance 35.00 S - $ - Checks Paid 0.03 $ - $ - Deposit Reconcilement Monthly Maintenance 35.00 $ - $ - De osit Processed 0.05 $ - $ - Positive Pa Monthly Maintenance 2000 S - $ Exception Item 0.75 $ - $ Payee Positive Pa Monthly Maintenance 55.00 $ $ - Exception Item 0.75 $ $ - Check Return 3.00 $ $ - ACH Positive Pa - Debit Block / Filter Setup and trainin - onetime fee WAIVED $ $ - No Charge ACH Positive Pa - Monthly Maintenance 20.00 1.00 $ 20.00 $ 240.00 Exception Item 1.25 $ - $ - Block Monthly Maintenance per account 5.00 $ - $ - EPA Debit Filter(Setup/Modify) 2.25 $ - $ - Filter Monthly Maintenance 0.75 $ - $ - Investment Sweeps Repo Monthly Maintenance 55.00 $ - $ - Dreyfus CM Treasu Sweep 100.00 S - S - Home Bill Consolidation Monthly Maint(per PO Box or Address 5000 $ - $ Per Item 0.06 $ - $ - Returned Item 5.00 $ - $ - SubTotal $ 189.69 $ 2,276.28 Sub total from above $ 815.26 $ 9,783.12 i Grand Total $ 1,004.95 $ 12,059.40 Bank Information Name of Contact Bank Officer Matt Kirschenman Si nature of Authorized Bank Officer Bank Officer's Telephone Number 213 972-0646 Bank Officer's E-mail Address Matt Kirschenmanbotw com Exhibit C Schedule of Performance Contracting Party shall complete all services identified in the Scope of Services, Exhibit A of this Agreement, in accordance with the Project Schedule below. The implementation process relies on a structured but flexible project management methodology. The first step, to be completed no later than 30 days from the execution date of the contract, shall include an implementation planning meeting with the City and Contractor implementation staff to discuss and strategize the conversion process. The meeting shall include an outline of expectations, resource requirements, and task responsibility of both parties. From this initial meeting, within 15 calendar days, a formal Implementation Plan will be developed, provided to the City, and serve as a working document for both parties. The Implementation Plan shall include regularly scheduled update meetings via conference call in most cases unless otherwise agreed upon. Services shall be fully implemented no later than December 31, 2019. Exhibit C Page 1 of 1 Exhibit D Special Requirements None. Exhibit D Page 1of1 Exhibit E Insurance Requirements E.1 Insurance. Prior to the beginning of and throughout the duration of this Agreement, the following policies shall be maintained and kept in full force and effect providing insurance with minimum limits as indicated below and issued by insurers with A.M. Best ratings of no less than A -VI: Commercial General Liability (at least as broad as ISO CG 0001) $1,000,000 (per occurrence) $2,000,000 (general aggregate) Must include the following endorsements: General Liability Additional Insured General Liability Primary and Non-contributory Commercial Auto Liability (at least as broad as ISO CA 0001) $1,000,000 (per accident) Personal Auto Declaration Page if applicable Errors and Omissions Liability $1,000,000 (per claim and aggregate) Cyber Liability $1,000,000 (per accident) $2,000,000 (general aggregate) Workers' Compensation (per statutory requirements) Must include the following endorsements: Workers Compensation with Waiver of Subrogation Workers Compensation Declaration of Sole Proprietor if applicable Contracting Party shall procure and maintain, at its cost, and submit concurrently with its execution of this Agreement, Commercial General Liability insurance against all claims for injuries against persons or damages to property resulting from Contracting Party's acts or omissions rising out of or related to Contracting Party's performance under this Agreement. The insurance policy shall contain a severability of interest clause providing that the coverage shall be primary for losses arising out of Contracting Party's performance hereunder and neither City nor its insurers shall be required to contribute to any such loss. An endorsement evidencing the foregoing and naming the City and its officers and employees as additional insured (on the Commercial General Liability policy only) must be submitted concurrently with Exhibit E Page 1 of 7 the execution of this Agreement and approved by City prior to commencement of the services hereunder. Contracting Party shall carry automobile liability insurance of $1,000,000 per accident against all claims for injuries against persons or damages to property arising out of the use of any automobile by Contracting Party, its officers, any person directly or indirectly employed by Contracting Party, any subcontractor or agent, or anyone for whose acts any of them may be liable, arising directly or indirectly out of or related to Contracting Party's performance under this Agreement. If Contracting Party or Contracting Party's employees will use personal autos in any way on this project, Contracting Party shall provide evidence of personal auto liability coverage for each such person. The term "automobile" includes, but is not limited to, a land motor vehicle, trailer or semi -trailer designed for travel on public roads. The automobile insurance policy shall contain a severability of interest clause providing that coverage shall be primary for losses arising out of Contracting Party's performance hereunder and neither City nor its insurers shall be required to contribute to such loss. Professional Liability or Errors and Omissions Insurance as appropriate shall be written on a policy form coverage specifically designed to protect against acts, errors or omissions of the Contracting Party and "Covered Professional Services" as designated in the policy must specifically include work performed under this agreement. The policy limit shall be no less than $1,000,000 per claim and in the aggregate. The policy must "pay on behalf of" the insured and must include a provision establishing the insurer's duty to defend. The policy retroactive date shall be on or before the effective date of this agreement. Contracting Party shall carry Workers' Compensation Insurance in accordance with State Worker's Compensation laws with employer's liability limits no less than $1,000,000 per accident or disease. Contracting Party shall procure and maintain Cyber Liability insurance with limits of $1,000,000 per occurrence/loss which shall include the following coverage: a. Liability arising from the theft, dissemination and/or use of confidential or personally identifiable information; including credit monitoring and regulatory fines arising from such theft, dissemination or use of the confidential information. b. Network security liability arising from the unauthorized use of, access to, or tampering with computer systems. Exhibit E Page 2of7 c. Liability arising from the failure of technology products (software) required under the contract for Consultant to properly perform the services intended. d. Electronic Media Liability arising from personal injury, plagiarism or misappropriation of ideas, domain name infringement or improper deep -linking or framing, and infringement or violation of intellectual property rights. e. Liability arising from the failure to render professional services. If coverage is maintained on a claims -made basis, Contracting Party shall maintain such coverage for an additional period of three (3) years following termination of the contract. Contracting Party shall provide written notice to City within ten (10) working days if: (1) any of the required insurance policies is terminated; (2) the limits of any of the required polices are reduced; or (3) the deductible or self -insured retention is increased. In the event any of said policies of insurance are cancelled, Contracting Party shall, prior to the cancellation date, submit new evidence of insurance in conformance with this Exhibit to the Contract Officer. The procuring of such insurance or the delivery of policies or certificates evidencing the same shall not be construed as a limitation of Contracting Party's obligation to indemnify City, its officers, employees, contractors, subcontractors, or agents. E.2 Remedies. In addition to any other remedies City may have if Contracting Party fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, City may, at its sole option: a. Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under this Agreement. b. Order Contracting Party to stop work under this Agreement and/or withhold any payment(s) which become due to Contracting Party hereunder until Contracting Party demonstrates compliance with the requirements hereof. c. Terminate this Agreement. Exercise of any of the above remedies, however, is an alternative to any other remedies City may have. The above remedies are not the exclusive remedies for Contracting Party's failure to maintain or secure appropriate Exhibit E Page 3 of 7 policies or endorsements. Nothing herein contained shall be construed as limiting in any way the extent to which Contracting Party may be held responsible for payments of damages to persons or property resulting from Contracting Party's or its subcontractors' performance of work under this Agreement. E.3 General Conditions Pertaining to Provisions of Insurance Coverage by Contracting Party. Contracting Party and City agree to the following with respect to insurance provided by Contracting Party: 1. Contracting Party agrees to have its insurer endorse the third party general liability coverage required herein to include as additional insureds City, its officials, employees, and agents, using standard ISO endorsement No. CG 2010 with an edition prior to 1992. Contracting Party also agrees to require all contractors, and subcontractors to do likewise. 2. No liability insurance coverage provided to comply with this Agreement shall prohibit Contracting Party, or Contracting Party's employees, or agents, from waiving the right of subrogation prior to a loss. Contracting Party agrees to waive subrogation rights against City regardless of the applicability of any insurance proceeds, and to require all contractors and subcontractors to do likewise. 3. All insurance coverage and limits provided by Contracting Party and available or applicable to this Agreement are intended to apply to the full extent of the policies. Nothing contained in this Agreement or any other agreement relating to City or its operations limits the application of such insurance coverage. 4. None of the coverages required herein will be in compliance with these requirements if they include any limiting endorsement of any kind that has not been first submitted to City and approved of in writing. 5. No liability policy shall contain any provision or definition that would serve to eliminate so-called "third party action over" claims, including any exclusion for bodily injury to an employee of the insured or of any contractor or subcontractor. 6. All coverage types and limits required are subject to approval, modification and additional requirements by the City, as the need arises. Contracting Party shall not make any reductions in scope of coverage (e.g. elimination of contractual liability or reduction of discovery period) that may affect City's protection without City's prior written consent. Exhibit E Page 4of7 7. Proof of compliance with these insurance requirements, consisting of certificates of insurance evidencing all of the coverages required and an additional insured endorsement to Contracting Party's general liability policy, shall be delivered to City at or prior to the execution of this Agreement. In the event such proof of any insurance is not delivered as required, or in the event such insurance is canceled at any time and no replacement coverage is provided, City has the right, but not the duty, to obtain any insurance it deems necessary to protect its interests under this or any other agreement and to pay the premium. Any premium so paid by City shall be charged to and promptly paid by Contracting Party or deducted from sums due Contracting Party, at City option. 8. It is acknowledged by the parties of this agreement that all insurance coverage required to be provided by Contracting Party or any subcontractor, is intended to apply first and on a primary, non-contributing basis in relation to any other insurance or self-insurance available to City. 9. Contracting Party agrees to ensure that subcontractors, and any other party involved with the project that is brought onto or involved in the project by Contracting Party, provide the same minimum insurance coverage required of Contracting Party. Contracting Party agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. Contracting Party agrees that upon request, all agreements with subcontractors and others engaged in the project will be submitted to City for review. 10. Contracting Party agrees not to self -insure or to use any self - insured retentions or deductibles on any portion of the insurance required herein (with the exception of professional liability coverage, if required) and further agrees that it will not allow any contractor, subcontractor, or other entity or person in any way involved in the performance of work on the project contemplated by this agreement to self -insure its obligations to City. If Contracting Party's existing coverage includes a deductible or self -insured retention, the deductible or self -insured retention must be declared to the City. At that time the City shall review options with the Contracting Party, which may include reduction or elimination of the deductible or self -insured retention, substitution of other coverage, or other solutions. 11. The City reserves the right at any time during the term of this Agreement to change the amounts and types of insurance required by giving the Contracting Party ninety (90) days advance written notice of such change. If such change results in substantial additional cost to the Contracting Party, the City will negotiate additional compensation proportional to the increased benefit to City. Exhibit E Page 5 of 7 12. For purposes of applying insurance coverage only, this Agreement will be deemed to have been executed immediately upon any party hereto taking any steps that can be deemed to be in furtherance of or towards performance of this Agreement. 13. Contracting Party acknowledges and agrees that any actual or alleged failure on the part of City to inform Contracting Party of non- compliance with any insurance requirement in no way imposes any additional obligations on City nor does it waive any rights hereunder in this or any other regard. 14. Contracting Party will renew the required coverage annually as long as City, or its employees or agents face an exposure from operations of any type pursuant to this agreement. This obligation applies whether or not the agreement is canceled or terminated for any reason. Termination of this obligation is not effective until City executes a written statement to that effect. 15. Contracting Party shall provide proof that policies of insurance required herein expiring during the term of this Agreement have been renewed or replaced with other policies providing at least the same coverage. Proof that such coverage has been ordered shall be submitted prior to expiration. A coverage binder or letter from Contracting Party's insurance agent to this effect is acceptable. A certificate of insurance and/or additional insured endorsement as required in these specifications applicable to the renewing or new coverage must be provided to City within five (5) days of the expiration of coverages. 16. The provisions of any workers' compensation or similar act will not limit the obligations of Contracting Party under this agreement. Contracting Party expressly agrees not to use any statutory immunity defenses under such laws with respect to City, its employees, officials, and agents. 17. Requirements of specific coverage features or limits contained in this section are not intended as limitations on coverage, limits or other requirements nor as a waiver of any coverage normally provided by any given policy. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue, and is not intended by any party or insured to be limiting or all-inclusive. 18. These insurance requirements are intended to be separate and distinct from any other provision in this Agreement and are intended by the parties here to be interpreted as such. Exhibit E Page 6 of 7 19. The requirements in this Exhibit supersede all other sections and provisions of this Agreement to the extent that any other section or provision conflicts with or impairs the provisions of this Exhibit. 20. Contracting Party agrees to be responsible for ensuring that no contract used by any party involved in any way with the project reserves the right to charge City or Contracting Party for the cost of additional insurance coverage required by this agreement. Any such provisions are to be deleted with reference to City. It is not the intent of City to reimburse any third party for the cost of complying with these requirements. There shall be no recourse against City for payment of premiums or other amounts with respect thereto. 21. Contracting Party agrees to provide immediate notice to City of any claim or loss against Contracting Party arising out of the work performed under this agreement. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. Exhibit E Page 7of7 Exhibit F Indemnification F.1 Indemnity for the Benefit of City. a. Indemnification for Professional Liability. When the law establishes a professional standard of care for Contracting Party's Services, to the fullest extent permitted by law, Contracting Party shall indemnify, protect, defend (with counsel selected by City), and hold harmless City and any and all of its officials, employees, and agents ('Indemnified Parties") from and against any and all claims, losses, liabilities of every kind, nature, and description, damages, injury (including, without limitation, injury to or death of an employee of Contracting Party or of any subcontractor), costs and expenses of any kind, whether actual, alleged or threatened, including, without limitation, incidental and consequential damages, court costs, attorneys' fees, litigation expenses, and fees of expert consultants or expert witnesses incurred in connection therewith and costs of investigation, to the extent same are caused in whole or in part by any negligent or wrongful act, error or omission of Contracting Party, its officers, agents, employees or subcontractors (or any entity or individual that Contracting Party shall bear the legal liability thereof) in the performance of professional services under this agreement. b. Indemnification for Other Than Professional Liability. Other than in the performance of professional services and to the full extent permitted by law, Contracting Party shall indemnify, defend (with counsel selected by City), and hold harmless the Indemnified Parties from and against any liability (including liability for claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether actual, alleged or threatened, including, without limitation, incidental and consequential damages, court costs, attorneys' fees, litigation expenses, and fees of expert consultants or expert witnesses) incurred in connection therewith and costs of investigation, where the same arise out of, are a consequence of, or are in any way attributable to, in whole or in part, the performance of this Agreement by Contracting Party or by any individual or entity for which Contracting Party is legally liable, including but not limited to officers, agents, employees, or subcontractors of Contracting Party. Exhibit F Page 1 of 1 ATTACHMENT 1 Deposit Account Disclosure For Business Accounts BANK OF BNP PARIBAS Elfeclive December 2, 2017 TABLE OF CONTENTS YOUR ACCOUNT AGREEMENT WITH BANK OF THE WEST ...5 The Agreement ....... __... ---- __------------ .__....... .... ....--...5 Liability.........................................................................................5 Our Relationship..._....._,_. _.: ...... .............._.._-6 Reservation of Rights................................................................6 Governing Law............................................................................6 IMPORTANT DEFINITIONS .................. ... ......... :...... .............. ....6 WHEN YOU OPEN YOUR ACCOUNT.....................................8 Identification Requirements..... ............................................8 Account Opening Verification..... . . .................. .........................9 Business and Other Organizational Accounts ..... ........ ...... .... ----- 9 Use and Purpose of Business Accounts....................................9 Ownership Restrictions Applicable to Interest -Bearing Checking Accounts.......................................9 GENERAL INFORMATION ABOUT DEPOSIT ACCOUNTS ....... 9 Balances and Cut-off Times........................................................9 Identifying Your Account Number for Deposits ...... 10 Change in Signers .. . .. ........................10 Change in Address .......................... .... . .............. 10 Signature Requirements.......................................................... 10 Review of Drawer Signatures ............... ........................ ...11 Death or Incompetence..............................................................11 Dormant Accounts and Escheatment.---.--.. ..........................._.11 Notices...... ....................................... ._...-....-....... ...... ..... .... ... __ 12 Changes in Terms and Conditions, ............ . .. ......................12 Sub-Accounts......................................................... ...............12 Positive Pay Service . ............... ........... ... .................... .........13 Automated Clearing House Transactions .............................13 Unlawful Internet Gambling...................................................13 DEPOSITS TO YOUR ACCOUNT..............................................13 Accepting Deposits..........................._........._.....•.................-..13 Verification of Deposits ... ------------------------- _.14 Correction of Deposit Errors ................................................ .15 CHECKS_. .. ............ ....... _...... ............-.........-.........................15 Check Cashing...................................................... .. 15 Check Cashing Fee - Bank of the West Check.. ..................... . 15 Remotely Created Checks Deposited.......................................15 Requirements When Creating or Depositing a Remotely Created Check .............................. 16 Postdated and Void -Dated Checks..........................................16 Stale -Dated Checks...................................................................16 Checks Drawn in Non-U.S. Dollars and/or Drawn on Foreign Banks...........................................17 Endorsements or Notations on Items .................. ................. 17 "Mechanized" and Facsimile Check Signatures.......................17 Returned Deposited Items........................................................18 Advanced Notification of Returned Item -------------- _------------------ 18 StopPayments ....... .................. ........... __..... .............. ____ 19 Order of Paying Checks and Other Items.................................19 Check Printing...........................................................................20 Check Processing ............. _... `...... ..................... 20 Checks Accepted for Deposit ................ .................................... 21 Electron ification of Checks-, ............ ....................................... 21 Merchant Capture Program .__....... ____ ...... ............................ 22 Check Deposits by a Mobile Deposit Service ...........................22 FUNDS AVAILABILITY POLICY.........................................22 Your Ability to Withdraw Funds_; .............. ................ ............ _22 Determining the Availability of Your Deposits ...........................23 Longer Delays May Apply ...... ...................... ......... _:................ ..23 Special Rules for New Accounts .......... .................................. _...23 Deposits at Automated Teller Machines and Cut -Off Times..............................................................24 Holds on Other Funds (Check Cashing) _.............. ................... 24 Holds on Other Funds (Other Account).........._.........................24 Effect of Release of a Hold ... . ......... .. .. .....................24 WITHDRAWALS AND ACCOUNT CLOSURES ------24 Closure of the Account .................. .......24 Reporting of Account Closure ........ ......25 Right to Advance Notice of Withdrawal or for Cash Withdrawals.,_._ ...................... ..............25 Authority to Withdraw. ................................ .............................25 Other Withdrawal Limitations...................................................26 Availability of Funds .................. ........................... ............26 DEBIT CARD SERVICES FOR BUSINESS ACCOUNTS ........ .26 Bank of the West ATM Account Access ...... ..........................26 Designation of Primary Funding Account......................... ..27 Shared ATM Network Account Access...................................27 Frequency and Dollar Limitations at Bank of the West and Shared ATM Networks...................................................27 Types of Debit Card Point -of -Sale Transactions .......................27 Frequency and Dollar Limitations on Point -of -Sale Transactions ........ ......................................28 Currency Conversion and Foreign Transaction Fees ...............28 Advisory Against Illegal Use ..............................................28 Use of Your Debit Card ..................................... .........._ ............ 29 Information About Debit Card Purchase Transactions..............29 Information About Settlement of Debit Card Transactions ........ 30 Effect of Authorization Hold on Other Transactions.,... ............ 30 Stop Payment on Purchase Transactions ........ .......... ........ ....... 31 Chip Cards at Merchant Terminals..........................................31 Debit Card Security Measures ........... :........ _..,...... ...... ............. 31 Limitations on Frequency of Transfers from Savings and Money Market Accounts....................................31 RelatedFees................•.............................................._............31 Your Liability for Use of Debit Card...........................................32 Mastercard® Debit Card Zero Liability......................................32 Electronic Fund Transfers Initiated By Third Parties ........... :.._.,32 2 Errors or Questions Concerning Your Card and Certain Other Transactions..........................................33 Lost and Stolen Cards ... . . .. . ............................... 33 Termination of Business Debit Card Services ..........................33 Debit Card Usage Not Governed by Electronic Fund Transfer Act ............ ................. ............._.-33 Mastercard® Easy Savings'"' Program...........-.... ................... 34 FUNDS TRANSFERS ..................._........... ............. ......... .....34 Funds Transfers ............................................. ..... .... . .......34 Reservation of Rights on Funds Transfers ... 34 Notice of Receipt of Funds Transfer .. ..34 Funds Transfer's Reliance on Identification Numbers ..............34 Transmitting and Recording Information About You in the Funds Transfer Payment Process .......... .......... ............. _......... ..... Transfers Received Through the Automated Clearing House ..35 ACH AND INTERNATIONAL ACH TRANSACTIONS ...............35 INFORMATION ABOUT FDIC INSURANCE .............................35 FDIC Insurance- .... ................ •• ...... ........... .., . 35 IMPORTANT INFORMATION ABOUT YOUR BUSINESS CHECKING, SAVINGS AND MONEY MARKET ACCOUNTS...36 Rate Information ......,......,........... 36 Frequency of Rate Changes ....... ............................. 36 Tiered Rate Accounts ........ . .......... ................... .... .36 Compounding and Crediting Frequency . 36 Computation Method.. ...36 Annual Percentage Yield or APY.........................................37 Effect of Closing an Account ...................................... ........37 Accrual of Interest on Noncash Deposits.,-... ............ - ............ _37 Transaction Limitations on Savings and Money Market Accounts .......................................... ..37 Analyzed Business Checking Balance Related Terms ...........38 Analyzed Business Checking: Interest on Overdrafts and Uncollected Funds Used.................................................39 IMPORTANT INFORMATION ABOUT YOUR BUSINESS CERTIFICATE OF DEPOSIT ACCOUNTS .......... ....... . ........39 Rate and Term Information ......................................... .........39 Compounding Frequency—__ ...........39 Crediting Frequency ................................................ ...............39 Computation Method .......... .39 Annual Percentage Yield or APY ............................. .. ..39 Effect of Closing an Account.....................................................39 Accrual of Interest on Noncash Deposits .............................. . ..39 GracePeriod.. . . . ... ............................. ............................39 Additional Deposits................................................................40 Withdrawals of Interest Prior to Maturity ..........................A0 Withdrawals of Principal Prior to Maturity ................... ..........40 Early Withdrawal Penalties ............................... ......................40 Additional Withdrawals ......... ....._.......................... ........ .... .....40 Automatically Renewable Certificates of Deposit .................. ... 40 Renewal Notices ................. .......... 41 3 Non Automatically Renewable Certificate of Deposit................41 Returned Interest Disbursements.._ ................... .............. .41 OVERDRAWN ACCOUNTS AND PAYMENT OF OVERDRAFTS ......................... .......... ......... .. ....42 Overdrawn Accounts or Insufficient Funds _._..........................42 Standard Overdraft Practices ...... ....... .......... ............. ___ ....---- A2 Overdraft Program Alternatives ------------ ........ .................... ....... .43 Savings Overdraft Protection for Sole Proprietorships ............A3 BusinessLink Reserve Line......................................................44 ABOUT YOUR ACCOUNT STATEMENTS.. ........ Account Statements in General................................................45 Statements and Your Responsibility to Review ........................45 Combined Statements... ........................................................46 Check Safekeeping ... ............................................ . •.... 46 IRS REPORTING . ...... ........................................ ...... Tax Identification Number and Interest Reporting ...................46 Backup Withholding...._.. ........ ................................................. 47 Notice to All Non -Resident Aliens.... ........ ............................... A7 SAFE AND SELF -SECURED DEPOSIT BOXES ............ .........47 ACCOUNT SECURITY ...... ......... _48 Your Responsibility .............. ..48 Account Numbers _......_ . ............................................................48 Closing a Compromised Account............................................48 BlankChecks. - - ...... __ .. ..... .............. ..... . - ........ ._..48 Claimof Loss........................................................................48 Preventing Fraud and Other Losses .............. _....... .................49 RESOLUTION OF DISPUTES BY ARBITRATION ...................49 Agreement to Arbitrate Disputes...............,...............................49 Disputes Covered By Arbitration..... . ........... __ .......................... 49 Disputes Not Covered By Arbitration........................................50 Commencing an Arbitration ........... ................. _........ ___ ....... 50 Arbitration Procedure.............................................................50 No Class Action or Joinder of Parties......................................51 Applicable Law ............. ....... 51 Severability ..................... 51 ADDITIONAL TERMS AND CONDITIONS .... ............... . 52 Legal Processes ............ .52 Right of Set-off and Security Interest ................ ................. .52 Pledges and Security Interest to Others ................................. 53 Referrals to Reporting Agencies and Collection Actions .........53 Transfer of Ownership.. . 53 Agents and Powers of Attorney (Sole Proprietorships Only) .53 Conflicting Demands .......................... . .. .. . .54 Investigative Freezes..............................................................54 Enforcement.................................................. . ...............54 Instructions by Facsimile, Email or Voicemail ..........................54 Our Communications with You ........................................... ..55 Retaining Records ... ................... .............. ___ ...... ................55 YOUR ACCOUNT AGREEMENT WITH BANK OF THE WEST* The Agreement This Deposit Account Disclosure for Business Accounts ("Disclosure"), along with any other documents we give you pertaining to your Account(s), is a contract that establishes rules which control your Account(s) with us. Please read this carefully and retain it for future reference. If you sign the signature card or open or continue to use the Account(s), you agree to these rules. You will receive a separate signature card, schedule of rates ("Rate Sheet"), a Schedule of Fees and Charges for Business Deposit Accounts, and any addenda to this Disclosure (collectively, the "Agreement"). If you have any questions, please call us. As used in this Agreement the words "Bank," "we," "our," and "us" mean Bank of the West and the words "you" and "your" mean the Account holder(s) and anyone else with the authority to deposit, withdraw, or exercise control over the funds in the Account. However, this Agreement does not intend, and the terms "you" and "your" should not be interpreted, to expand an individual's responsibility for an organization's liability. The headings in this Agreement are for convenience or reference only and will not govern the interpretation of the provisions. Unless it would be inconsistent to do so, words and phrases used in this Agreement should be construed so the singular includes the plural and the plural includes the singular. The purpose of this document is to: • Summarize some laws that apply to common transactions; • Establish rules to cover transactions or events which the law does not regulate; • Establish rules for certain transactions or events which the law regulates but permits variation by agreement; and • Give you disclosures for some of our policies which may be applicable to you or in which you may be interested. If any provision of this document is found to be unenforceable according to its terms, all remaining provisions will continue in full force and effect. We may permit some variations from our standard Agreement, but we must agree to any variation in writing either on the signature card for your Account or in some other document Liability You agree, for yourself and the person or entity you represent if you sign as a representative of another, to the terms of your Account(s), including this Agreement. You authorize us to deduct fees and charges (as disclosed in our Schedule of Fees and Charges for Business Deposit Accounts) as accrued, without notice to you, directly from the Account balance as accrued. IF your Account's Available Balance is insufficient to pay for such fees and charges, you agree to pay us promptly for any deficiency. You will pay any additional charges for services you request which are not covered by this Agreement Each of you also agrees to be jointly and severally (individually) liable for any Account shortage resulting from charges or Overdrafts, whether caused by you or another with access to your Account. This liability is due immediately, and can be deducted directly from the Account's Available Balance. You have no right to defer payment of this liability, and you are liable regardless of whether you signed the Item or benefited from the charge or Overdraft. 4 5 You will be liable for our costs, to the extent permitted by law, whether incurred as a result of collection or in any other dispute involving your Account, This includes, but is not limited to, disputes between you and a signer on your Account or similar party; or a third party claiming an interest in your Account. All costs can be deducted from your Account when they are incurred, without notice to you. If your Account's Available Balance is insufficient to pay for such costs, you agree to pay us promptly for any deficiency. We shall not be liable for special, indirect, punitive or consequential damages which arise under this Agreement or by law with respect to your Account_ Any loss to you is reduced by your recovery of funds or services from any other source. Should a dispute arise between the parties, it is agreed that we will make every effort to resolve it amicably. However, should the dispute not be resolved, the procedures outlined in the RESOLUTION OF DISPUTES BY ARBITRATION section of this Agreement will apply Our Relationship Our relationship with you shall be one of debtor and creditor; no fiduciary, quasi -fiduciary, or other special relationship exists between us. Reservation of Rights We shall not be deemed to have waived any of the provisions contained in this Agreement by having waived the same or similar provisions at any other time. We reserve the right to close any Account at any time without prior notice, with or without cause. We reserve the right to refuse to open any Account, and also the right to add to or to change or discontinue terms of any Account or service after opening. Examples used in this Agreement are not intended to be the only applications of the rule being explained. Examples are illustrative and not limiting. Governing Law Except as otherwise expressly indicated herein, this Agreement is subject to applicable federal and state laws of your Branch of Account and other applicable rules such as the operating letters of the Federal Reserve Banks and payment processing system rules (except to the extent that this Agreement can and does vary such rules or laws). The body of state and federal law that governs our relationship with you, however, is too large and complex to be reproduced here. " Doing business in South Dakota as Bank of the West California. IMPORTANT DEFINITIONS Capitalized terms used herein but not otherwise defined herein shall have the definitions assigned to such terms in the Rate Sheet, the Schedule of Fees and Charges for Business Deposit Accounts or in other documents that make up part of this Agreement. Account. The term "account" means any business savings, money market, transactional (checking), or certificate of deposit account that you have with us. Agent. The term "agent" shall mean any person that you authorize to act on your behalf. Refer to "Agents and Powers of Attorney (Sole Proprietorships Only)" in the ADDITIONAL TERMS AND CONDITIONS section of this Agreement for additional details regarding appointment of Agents. Automated Clearing House (ACH). The ACH is a nationwide electronic fund transfer system that permits participating depository financial institutions to clear payments electronically. ACH transactions are governed by clearing house operating rules. Using the ACH, originating financial institutions may cause payments, such as payroll, Social Security or other government benefits, to be debited from one Account party and paid into the Account of a beneficiary. Similarly, originating financial institutions may cause direct payments, such as mortgages, loans, utility bills, or insurance premiums to be debited from a debtor's Account and paid into the Account of the creditor. Available Balance. The total amount of funds on deposit for your Account reduced by any deposit holds, authorization holds, pledges, restraints and pending transactions. Branch of Account. The banking branch where your Account is opened or to which your Account is assigned. Business Day. Our Business Days are Monday through Friday, excluding federal holidays Card. As used in this Agreement, "Card" includes the Debit Card Debit Card. The Debit Card issued by the Bank may be used at ATMs and POS Terminals inside and outside the United States that display any of the logos on the Debit Card Direct Deposits. Electronic deposits of periodic payments that are made into your Account through the ACH. Wire transfers, deposits you make, and transfers you make between your deposit Accounts with us are not considered Direct Deposits. Item. An "item" means any paper check or draft whether presented in paper form or electronic form. If indicated in the context, it may include an ACH debit or credit, or any form of electronic presentment. Overdraft. An Overdraft results from the Bank's payment of Items or Card transactions despite an insufficient Available Balance. The Bank may assess an Overdraft Fee for this service. Refer to the OVERDRAWN ACCOUNTS AND PAYMENT OF OVERDRAFTS section of this Agreement for further details. Point -of -Sale (POS). A purchase transaction conducted at any merchant or self-service Terminal where the Debit Card is accepted. Provisional Credit. Credit provided to you by the Bank on a temporary basis. Unless you are otherwise informed, you may access funds for which you have a Provisional Credit but recognize that a Provisional Credit may be reversed until it is legally deemed to be final, If reversed, you will be liable to the Bank to the extent Provisionally Credited funds were used. Remotely Created Check. Like any standard check or draft, a Remotely Created Check (sometimes called a telecheck, preauthorized draft or demand draft) is a check or draft that can be used to withdraw money from an Account. Unlike a typical check or draft, however, a Remotely Created Check is not issued by the paying bank or the drawer and does not contain the signature of the Account holder (or a signature purported to be the signature of the Account holder). In place of a signature, the Remotely Created Check usually has a statement that the Account holder authorized the check or has the Account holder's name typed or printed on the signature line For example, if a person provides an Account number in response to a telephone solicitation, the telephone solicitor can use the Account number to issue a Remotely Created Check to withdraw money from that Account. Please refer to "Remotely Created Checks" in the CHECKS section of this Agreement for further details. Returned Item. An Item that is presented against your Account for payment, but the Bank dishonors or rejects for payment due to an insufficient Available Balance, The Bank may assess a Returned Item Fee for this service. Right of Set-off. The Bank's debiting of any deposit Account(s) you hold with the Bank (assets we owe you) to apply to a debt that you owe the Bank. Refer to "Right of Set-off and Security Interest" in the ADDITIONAL TERMS AND CONDITIONS section of this Agreement for further details. Shared ATM Network. Any automated teller machine that displays any of the logos on your Card. Substitute Check. To make check processing faster, federal law (Check 21) 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 a 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 a Substitute Check as proof of payment just like the original check. Terminal. An ATM, self-service Terminal, or attended POS Terminal; used interchangeably with either the phrase ATM or POS Terminal - Tiered Rate Account. An Account that may have two (2) or more interest rates, determined by specified balance levels. WHEN YOU OPEN YOUR ACCOUNT Identification Requirements We require identification, including a Social Security Number, Taxpayer Identification Number, and/or certification of foreign status (non-resident alien), for each signer and beneficial owner on an Account prior to opening the Account_ We may refuse to open, and we may close, any Account for which you do not provide us with acceptable identification for any signer or beneficial owner and/or if you do not provide a Taxpayer Identification Number, Social Security Number, or certification of foreign status- "Beneficial owner" means any individual who has ultimate control of the funds in the Account In addition, we require appropriate business documentation identifying the business entity and a Tax Identification Number, foreign identification number and/or certification of foreign status, as applicable, for the business entity prior to opening the Account. Account Opening Verification We may make any inquiries that we consider appropriate to determine if we should open and maintain your Account This may include obtaining information from financial institutions or other third parties about your Account and/or any signer on the Account. You agree that we may verify credit and employment history on you, any manager or owner and on any other signer on the Account by any necessary means, including preparation of a credit report by a credit reporting agency If we decline to open an Account or provide any services based on information we receive, we will provide you with the name and address of the company that provided the information. When we open your Account, we are doing so on a provisional basis and, subsequently, may close your Account at any time at our discretion. Business and Other Organizational Accounts Accounts are available for and may be opened by a corporation, organization, or association, including an individual acting as a sole proprietor, a partnership, a limited partnership, a limited liability partnership, a limited liability company, a joint venture or a non-profit corporation The individuals authorized to open and take action on those Accounts (e_g., authorized signatories) may be required to provide the Bank with appropriate documentation (e.g, resolutions, agreements, etc.) to evidence the authority of those individuals to act on behalf of the entity. We will honor such an authorization until we receive written notice of change from the governing body of the entity. It is mutually agreed that the 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 or change Use and Purpose of Business Accounts Accounts for non -personal entities such as sole proprietorships, corporations, limited liability companies, partnerships, etc. are intended for business and commercial purposes, and may not be used for personal, family or household purposes. If any of these Accounts are being used for personal, family or household purposes, we reserve the right to either close the Account or request that you change the Account to an appropriate product type designated by us for personal ownerships Ownership Restrictions Applicable to Interest -Bearing Checking Accounts Federal law restricts ownership of certain types of interest -bearing checking Accounts by non -personal entities to unincorporated sole proprietorships, non-profit organizations, governmental units, and fiduciaries where all beneficiaries would be entitled to maintain an interest -bearing checking Account. If we find that you have an interest -bearing checking Account and we believe you are not entitled to one, we reserve the right to change your Account to a checking Account not subject to these ownership restrictions. We will notify you prior to any change. GENERAL INFORMATION ABOUT DEPOSIT ACCOUNTS Balances and Cut-off Times Balances shown on statements, receipts, and records may not reflect transactions and charges made but not yet posted. Unless otherwise posted, the daily cut-off time for each branch is the same as the branch lobby closing time. Most transactions made before each branch's cut-off time will be posted on the Business Day they are presented. Check with the branch for any exceptions. Availability of your deposits for ATM and night drop transactions may be found in "Deposits at Automated Teller Machines and Cut -Off Times" in the FUNDS AVAILABILITY POLICY section of this Agreement. Cut-off times for our Online and Mobile Service may be found in the separate Online and Mobile Service Agreement. Any knowledge, notice, or stop payment order received by the Bank, or any legal process served upon the Bank, arrives too late to affect our right or duty to pay an Item or charge your Account for the Item if the knowledge, notice, stop payment order, or legal process is received or served on the later of either 10 a.m. local time or one (1) hour after the opening of your Branch of Account the next Business Day after the Business Day on which we receive the Item If your Branch of Account opens after 9 a_m, local time, then, for purposes of this provision, your Branch of Account shall be deemed to be our Contact Center with the slop payment cut-off time of 10 a.m. (local time of your Branch of Account). The cut-off time for the Bank to exercise Right of Set-off will be the close of the next Business Day after the Business Day on which we receive the Item. Identifying Your Account Number for Deposits You are responsible for correctly identifying the Account to which you want funds deposited or payments made. We may credit a deposit to an Account based solely on the Account number listed on the deposit slip or other instruction to credit an Account, even if the name on the deposit slip or other instruction differs from the name on the Account. You are responsible for any cost, loss, or damage caused by your failure to identify correctly the Account to which a deposit is to be made. Change in Signers The Bank must be notified of any change to the signers on your Account. Any change will be effective within a reasonable time of the Bank's receipt and acceptance of the new signatures at the Branch of Account. You must stop payment on any Item(s) issued by any removed signer if you do not want any Item issued by a removed signer to be honored by us. Change in Address You are responsible for notifying us of any change in your address, name, telephone number or email address (if applicable). Unless we agree otherwise and except as provided in this Agreement or in any other agreement between us, such changes must be made in writing or online by at least one of the Account holders_ Informing us of such changes on a check reorder form or via email is not sufficient. We will attempt to communicate with you only by use of the most recent statement mailing address you have provided to us. We may change your address of record if we receive an address change notice from the U.S. Postal Service, or if we receive information from another person in the business of providing corrected address information that the address in our records no longer corresponds to your address. Change of address requests may be subject to verification. Signature Requirements If you indicate on your signature card or other Account opening documents that more than one (1) signature is required for Account opening, deposit, instructions, Account maintenance or for any form of withdrawal, that indication is for your own internal procedures. It is not binding on us. We may honor the request and instructions of any signer on the Account and pay out funds from your Account if the Item or other withdrawal instruction is signed or authorized by any one of the persons authorized to sign on the Account. You agree that we have no liability to you if we do this. Review of Drawer Signatures You agree that the Bank does not fail to exercise ordinary care in paying an Item solely because our procedures do not provide for sight -review, provide for sight -review only for Items above a threshold level, or provide for sight -review on a sample basis, at our discretion. The Bank reserves the right not to sight -review drawer signatures because we pay Items on an automated basis to reduce costs for all customers. To determine the authenticity of your signature, we may refer to your signature card or to an Item or other document upon which your signature appears. If we cannot accurately verify your signature on any Item by comparing it with your signature card, an Item that posted to your Account, or other document upon which your signature appears, you are responsible for any losses that may result from our inability to verify your signature. Death or Incompetence You agree to notify us promptly in writing if any sole proprietor or any signer with a right to withdraw funds from your Account(s) dies or becomes legally incompetent. We may continue to honor your Items and instructions until: (1) we know of your death or incompetence, and (2) we have had a reasonable opportunity to act on that knowledge. We also may, at our sole discretion, freeze, set-off, refuse, and/or reverse any transaction (including but not limited to, federal or retirement benefits to the deceased) if any sole proprietor or any signer with a right to withdraw funds from your Account dies or becomes legally incompetent You agree that we may pay or certify any Items drawn on or before the date of death or legal incompetence for up to 10 days after your death or legal incompetence unless ordered to stop payment by someone claiming an interest in the Account. You also agree that, at our sole discretion, we may continue to honor transactions by other signers on the Account and Account holders of the Account, if permitted by the Account type of ownership, until we receive written notice to the contrary. Dormant Accounts and Escheatment State laws generally require that any Account or other property be escheated or sent to the U.S. State indicated by your last known address if, after a certain amount of time, the owner has not conducted certain types of activity on the Account, including: • Increased or decreased the balance of the Account, or • Corresponded in writing with the Bank concerning the Account, or • Otherwise indicated an interest in the Account as evidenced by a memorandum or other record on file with the Bank. Note: Automatic transactions such as Direct Deposits or recurring transfers do not count as activity on the Account. If your Account has none of the types of activity detailed above (or as detailed in the applicable State law) for a period of time, your Account may be designated as "dormant." Dormant Accounts will not receive bank statements. While dormant, the Account will continue to be charged applicable service charges. Unless your Account has a balance of under $10, we will 10 11 attempt to notify you and to advise you how to reactivate your Account, If your Account becomes dormant, any attempted activity may be dishonored For example, credits and debits initiated through the Automated Clearing House may be rejected, and Items presented against the Account may be questioned and, if we believe appropriate, dishonored without any liability to you. Your property may be transferred to the appropriate U.S. State if no activity occurs in the Account within the time period specified by State law, The specific length of time between the last activity or contact and eschealment varies by State law, but is generally between three (3) and seven (7) years. The time period begins whenever you do any of the activities above or when a certificate of deposit matures Unless your Account balance is less than $10, we will attempt to notify you by sending a letter to your last known address before your deposit may have to be sent to the Stale. If no response to the letter is received from a legal owner of the Account, the funds will be sent to the State indicated by your last known address. Once this has occurred, you will have to file a claim for the return of the funds with the State. Further information may be obtained from the State. Once your funds are surrendered to the State, you agree that we no longer have any liability or responsibility with respect to the funds. The Bank may assess an Inactive Account Letter Fee for each communication sent to you regarding inactivity, dormancy, and eschealment. Notices Any written notice you give to the Bank is effective when it is actually received by the Bank, and after we have had a reasonable opportunity to act on it. Any written notice the Bank gives to you is effective when it is deposited in the U.S. mail, postage prepaid, and addressed to you at your statement mailing address. Changes in Terms and Conditions We may amend, add, or delete any provisions of the terms and conditions detailed in these pages at any time. To the extent and in the manrter and time frames required by law, we will notify you in advance of any changes that affect your rights and obligations. You indicate that you accept a change we make by continuing your Account relationship with us or, if the change affects your certificate of deposit, by allowing the certificate of deposit to renew after the change becomes effective. Sub -Accounts For our internal accounting purposes, your checking Account consists of two sub -Accounts. One of these is a transaction sub - Account (e g , a checking sub -Account). You will transact business on this sub -Account. The other is a nontransaction sub - Account (e.g., a savings sub -Account). The sub -Accounts will only occur on our books. You cannot directly access the nontransaction sub -Account, but you agree that we may automatically, and without a specific request from you, initiate individual transfers of funds between sub -Accounts from time to time at no cost to you. This Account organization will not change the amount of federal deposit insurance available to you, your Available Balance, the information on your periodic statements, your fees, your bank statement or the interest calculation on your Account, if this is an interest -bearing Account. 12 Positive Pay Service For business Accounts, you acknowledge that your failure to use our positive pay service could substantially increase the likelihood of undetected fraudulent activity on your business Account(s) and that it is not unreasonable under the circumstances for us to require you to use our positive pay service upon request. You agree that if you fail to implement the positive pay service, you will be precluded from asserting any claim against us for paying an unauthorized, altered, counterfeit or other fraudulent Item that the positive pay service was designed to detect or deter, and we will not be required to re -credit your Account or otherwise be liable to you for paying such Item, provided we used ordinary care in the payment of any such Item or transaction. Automated Clearing House Transactions We may accept on your behalf payments to your Account which have been transmitted through one or more Automated Clearing House, Credit for ACH transactions is provisional until we receive final settlement for the transaction through a Federal Reserve Bank. If we do not receive final settlement, you agree that we are entitled to a refund of the amount credited to your Account for the transaction, and the party making payment to you shall not be deemed to have paid you the amount of the transaction. We will notify you of the receipt of ACH Items through the periodic statements we provide to you. Although we will not provide next day notice via mail, you may verify ACH transactions by accessing the various business online banking services or by contacting our Contact Center at the address or phone number listed at the end of this Agreement. These transactions are not subject to the Electronic Fund Transfer Act. Your rights and obligations with respect to ACH transactions involving your Account are governed by the laws of the state of New York, as well as the operating rules of the National Automated Clearing House Association. Unlawful Internet Gambling Banking regulation prohibits banks from processing restricted transactions through a business account. Restricted transaction means any of the following transactions or transmittals involving any credit, funds, instrument, or proceeds that prohibits any person engaged in the business of gambling, belting or wagering (which does not include the activities of a financial transaction provider, or any interactive computer service or telecommunications service) from knowingly accepting, in connection with the participation of another person in unlawful Internet gambling: (1) credit, or the proceeds of credit, extended to or on behalf of such other person (including credit extended through the use of a credit card); (2) an electronic fund transfer, or funds transmitted by or through a money transmitting business, or the proceeds of an electronic fund transfer, or money transmitting service, from or on behalf of such other person; or (3) any check, draft, or similar instrument that is drawn by or on behalf of such other person and is drawn on or payable at or through any financial institution. DEPOSITS TO YOUR ACCOUNT Accepting Deposits At our sole discretion, we may accept or reject deposits to your Account from any source and need not question the authority of the depositor to make the deposit. In accepting Items for deposit, 13 we will give only Provisional Credit until collection is final for any Items, other than cash, we accept for deposit (including Items drawn "on us"). Before settlement of any Item becomes final, we act only as your Agent, regardless of the form of endorsement or lack of endorsement on the Item and even though we provide you Provisional Credit for the Item. The Bank may refuse to accept any Item. If the Bank accepts an Item, the risks in the check collection process shall be borne solely by you. You acknowledge that if an Item has "cleared" or has been "paid," the Item is still subject to reversal and chargeback to your Account whenever the Bank is unable to collect the funds from the drawee/issuer institution. If the institution upon which an Item is drawn does not honor the Item, if an Item you deposit is returned unpaid, or if an Item is lost in transit, the Bank is authorized to reverse the deposit to your Account (or debit your Account for checks cashed or paid), to reverse any related interest, and to pursue a collection action against you if necessary, all without regard to the timeliness of the return of the Item. We reserve the right either not to credit your Account or, if already credited, to charge your Account for any Items lost in transit. In the unlikely event that your deposit is lost in transit, you will be asked to recreate the check portion of your deposit. Therefore, you should maintain adequate records to permit identification of the drawer of any deposited Item that is reported lost in the payment process and to provide that drawer with adequate information to take whatever action is appropriate for cancellation and/or replacement of the Item which you deposited. You agree that Bank of the West is not responsible for Items lost while not in our possession. We may reverse any Provisional Credit for Items that are lost, stolen, or returned (or debit your Account for checks cashed). We may also reverse any related interest without regard to the timeliness of the return of the Item. If you give us cash that we later determine to be counterfeit, we will charge your Account for the amount we determine to be counterfeit. Actual credit for deposits of, or payable in, foreign currency will be at the exchange rate in effect on final collection in U.S. dollars. We are not responsible for transactions by mail or outside depository until we actually record them. We will treat and record all transactions received after our "daily cutoff time" on a Business Day we are open, or received on a day we are not open for business, as if initiated on the next Business Day that we are open At our option, we may take an Item for collection rather than for deposit. If we accept an Item for collection, the Item will be deposited to your Account when payment of the Item is received by the Bank. At our discretion, our Collection Fee may be netted from the proceeds of the collected Item. In addition, institutions that pay Items on collection typically remit the amount of the Item less any fee they assess. If we accept a third -party check for deposit, we may require any third party endorsers to verify or guarantee their endorsements, or present acceptable identification and endorse in our presence. We reserve the right to require that any check be made payable to, and be deposited into the Account of, a named payee. Any Items that the Bank is unable to collect may be returned to you by standard U.S, mail Verification of Deposits All transactions, including those for which the Bank has provided a receipt, are subject to the Bank's final verification Verification of a deposit does not occur at the teller window (or upon deposit into an ATM). ConsequenlIy, the receipt [hat you receive at the time of your deposit is not evidence that your deposit has been verified. If you give a written verification of deposit to a third party that requests us to release your Account -related information, we will assess a fee to the third party for this service Correction of Deposit Errors When we receive your deposits, we may provisionally credit your Account for the amount indicated on the deposit slip (or, as to ATM deposits without a deposit slip, the amount indicated on the ATM screen), subject to later verification by us. You must ensure that the amount indicated on the deposit slip (or ATM screen) is correct even if you did not prepare a deposit slip. If we later determine that the amount indicated on the deposit slip or reported on an ATM receipt is incorrect, we may make the appropriate debit or credit adjustment to your Account. The Bank may reverse or otherwise adjust any credit it determines was erroneously made to your Account at any time without prior notice to you. CHECKS Check Cashing We may require that you first deposit to your Account any Item you have requested be cashed At our diserelion, however, we may permit the negotiation of items payable to you for cash with or without your endorsement. if any cashed Item is returned to us for any reason, we may charge the Returned Item to any of your Accounts A Deposited Item Returned Fee may also be assessed on your Account. We may require that any Item drawn on your Account be presented for cashing at your Branch of Account. We may also require reasonable identification to cash such an Item. We will decide what identifical[on is reasonable under the circumstances and such identification may be documentary or physical and may include collecting a thumbprint or fingerprint. The inability or refusal to provide the fingerprint by any person presenting an Item for cashing is grounds for us to refuse to cash the Item. You agree that we shall have no liability, inciuding, without limitation, liability for wrongful dishonor, for our refusal to cash an Item under these conditions. Check Cashing Fee - Bank of the West Check We may charge a fee to anyone who does not have an eligible deposit Account with us who is cashing an Item drawn on your Account, with certain exceptions. Refer to our Schedule of Fees and Charges for Business Deposit Accounts for details. In many states, employers are obligated to provide payroll payments iG employees such that there are no bank fees for their employees to negotiate the payroll payment at the bank We offer services whereby employers can fulfill statutory obligations to employees. Check with your Branch of Account. Remotely Created Checks Deposited You warrant and agree to the following for every Remotely Created Check we receive from you for deposit or collection: (1) you have received express and verifiable authorization to create the Remotely Cfealed Check in the amount and to the payee [hat appears an the Remotely Created Check; (2) you will maintain proof of the authorization for at least three (3) years from the date of the authorization, and supply us the proof if we ask; and (3) if a Remotely Created Check is returned, you owe us the amount of the Remotely Created Check, without regard to when the Remotely Created Check is returned. At any time, should you deposit or wish to deposit Remotely Created Checks, we may require that you execute additional agreement(s) and that you establish a reserve Account, pledged to us, that would serve as a fund to accept chargebacks of Remotely Created Checks. Any reserve Account would be required to be maintained for the length of the applicable statute of limitation. We may take funds from any of your Accounts, including any reserve Account, to pay the amount you owe us. If there is an insufficient Available Balance in your Account to pay the amount of our loss, you still owe us and shall promptly pay the remaining balance. Requirements When Creating or Depositing a Remotely Created Check Any Remotely Created Check you seek to deposit must contain the following information for the account of the person for whom you have created the check: • The account owner's bank account number • The account owner's name printed or typewritten • Refer any questions on your creating a Remotely Created Check to your vendor who supports this service. You also must include an External Processing Code (EPC) of a '6" in position 44 of the MICR line to the immediate left of the Routing number and such other features including any size or check processing requirements as we may require from time to time. With respect to any Remotely Created Check you deposit, you represent that you are entitled to enforce each Remotely Created Check. We may immediately terminate or limit our acceptance of Remotely Created Checks at any time without prior notice. You agree to indemnify, defend and hold us harmless from and against any and all losses, damages, claims, judgments, liability, costs, and expenses that we may incur arising directly or indirectly from your deposit of Remotely Created Checks. Your indemnification obligations under this provision shall survive any termination of our Account relationship with you. Postdated and Void -Dated Checks A postdated check is one which bears a date later than the date on which the check is written. We may properly pay and charge your Account for a postdated check even though payment was made before the date of the check, unless we have received a stop payment order in time to have a reasonable opportunity to act. If you wish a postdated check to be honored on or after the date written on the check, you must release the stop payment order on the date you want the postdated check to be paid. Because we process checks mechanically, your stop payment order will not be effective and we will not be liable for failing to honor your slop payment order unless it precisely identifies the number, date, amount and payee of the Item. If you put a void - date on your check (a date or number of days after which the check is not good), we may pay the check and charge it to your Account even if it is presented for payment after the void -date. If you do not want us to pay a void -dated check, you must place a stop payment order on it on or after the void date. Refer to "Stop Payments" in this section of this Agreement. Stale -Dated Checks We are not obligated to, but may at our option, pay a check, other than a certified check, presented for payment more than six months after its date If you do not want us to pay a stale - dated check, you must place a stop payment order on the check. Refer to "Stop Payments" in this section of this Agreement. Checks Drawn in Non-U.S. Dollars and/or Drawn on Foreign Banks We may refuse to accept any Item(s) for deposit or collection if they are payable in a currency other than U.S. dollars. If we accept any Item for deposit, we may assume that any Item drawn on an institution outside the United States of America ("Foreign Bank") is payable in the currency of the country where the Foreign Bank is located. If we accept an Item drawn on a Foreign Bank, you assume all risk of loss associated with currency value fluctuations and late returns We may use our current buying or selling rate, as applicable, when processing foreign currency Items and may recover from your Account, or from you, any costs or loss incurred in connection with our processing of such Items. Refer to "Accepting Deposits" in the DEPOSITS TO YOUR ACCOUNT section of this Agreement. Endorsements or Notations on Items All Items presented for deposit should be properly endorsed. To ensure that your Item is processed without delay, you must endorse it (sign it on the back) in a specific area. Your entire endorsement (whether a signature or a stamp) along with any other endorsement information (e.g. additional endorsements, ID information, driver's license number, etc.) must fall within 1 1/2" of the "trailing edge" of an Item Endorsements must be made in blue or black ink, so that they are readable by automated check processing equipment. As you look at the front of a check, the "trailing edge" is the left edge When you flip the check over, be sure to keep all endorsement information within 1 112" of that edge, If an Item is not endorsed, the Bank is authorized to supply any missing endorsement or collect any Item without endorsement You warrant all endorsements are genuine. There may, however, be some instances in which the Bank may require your endorsement before accepting an Item for deposit or encashment. We may accept or pay Items bearing restrictive endorsements or other notations, whether on the front or the back of the Item. You agree that such restrictive endorsements and other notations shall have no effect on us. You agree to indemnify, defend, and hold us harmless from and against any and all losses, damages, claims, judgments, liability, costs, and expenses related to or arising out of our acceptance or payment of such Items. Your indemnification obligations under this provision shall survive any termination of our Account relationship with you. We reserve the right to refuse to cash or accept Items bearing qualified endorsements (e.g., an endorsement "without recourse" or "no protest"). If we agree to accept such Items, you agree that such qualified endorsements shall have no effect on us We reserve the right to refuse to cash or accept for deposit Items which bear more than one (1) endorsement or the endorsements of payees who are not known to us. If you wish to deposit or cash an Item that has been endorsed by a payee who is not known to us, we reserve the right to require that: (1) all endorsers be present and endorse in our presence before we accept an Item; or (2) all endorsements be guaranteed by a financial institution. "Mechanized" and Facsimile Check Signatures If you use a procedure or mechanism that causes Remotely Created Checks or any other type of check to be drawn on your Account with a typed signature, facsimile signature, notation, mark, or other form of mechanical symbol (collectively, the "Mark") that is not the signature that is on the signature card that you signed when you opened your Account, you are adopting the Mark as your signature and authorizing the Bank to pay checks on which the Mark appears or purports to appear. You should understand, however, that it is easier for someone to imitate, duplicate, or counterfeit a form of mechanical signature than it is for someone to imitate, duplicate, or counterfeit a unique and distinctive signature. For this reason, by adopting a form of Mark, you are assuming all risk of loss resulting from the unauthorized use and/or forgery of the Mark, and are explicitly authorizing the Bank to pay any and all checks presented against your Account which contain any mechanical signature which reasonably resembles the form you have adopted regardless of: • whether the Mark is actually that which you have adopted, • how or by whom the Mark was affixed, and • whether the check which bears or purports to bear the Mark was, in fact, authorized by you. If you adopt a facsimile check signature, you agree to Indemnify,. defend and hold us and our correspondent banks harmless from and against any and all losses, damages, claims, judgments, Ilability, costs, and expenses which we or they may suffer arising directly or indirectly out of the misuse, unlawful, or unauthorized use of a facsimile signature by any person, including but not limited to, the payment of all Items bearing, or purporting to bear, your authorized facsimile signature, even if the facs�lmile signature was affixed by copying or otherwise counterfeiting the facsimile signature. Unless you make advance arrangements with us, we have no obligation to honor facsimile signatures on your Items. You must notify us at once if you suspect that your facsimile signature is being or has been misused, Your indemnification obligations under this provision shall survive any termination of our Account relationship with you. Returned Deposited Items If an Item you deposit to or cash against your Account is returned to us for any reason, without regard to the timeliness of the return, the amount at the Item and a Deposited Item Returned Fee will be charged to your Account. If we receive an affldavlt, declaratlbrf under penalty of perjury, or another form of certification stating, as to any Item on which we make a warranty, (1) that an endorsement of the Item deposited to or cashed against your Account is forged, unauthorized, or missing, (2) that the Item contains an alteration, or (3) that the Item is otherwise unauthorized so that we may have breached a warranty we make as a depository bank, we may rely on the truthfulness of the affidavit, declaration, or certification. Without prior notice to you, the Bank reserves the right in its sole discretion to place a hold on the funds pending an investigation or to charge back to your Account the amount of any Item deposited to your Account or cashed for you and which is later returned to us due to an allegedly forged, unauthorized or missing endorsement, claim of alteration, encoding error, or other problem which, in our judgment, justifies reversal of credit. We reserve the right to deposit the funds at issue with an appropriate court. Once we have debited your Account for the amount of the Returned Item and the Deposited Item Returned Fee, the Item may be mailed back to you by standard U S mail at the address we have on our records for the Account in question. Advanced Notification of Returned Item If we receive advance notification that any Item which you deposlied or cashed is being returned by the drawee Inslitulion, we reserve the right to place a hold on your Account for the amount of those funds. We will mail you a notice advising you of this action. Upon our actual receipt of the Item, it may be charged to your Account and, unless an Overdraft is created, will be returned to you so you may take whatever action you deem appropriate. Stop Payments Before we pay a check or third -party transfer, you have the right to place a slop payment order ("Order") on the Item, provided that: • The Bank is authorized to deduct from your Account the Bank's applicable Stop Payment Fee. • Each Order applies ONLY to the Items that conform EXACTLY to the descriptions you provided on the Order. If any of the information concerning the Item is not given or is incorrect (including your failure to give the precise amount of the Item, to the penny), the Bank may not be able to honor the Order. • The Bank must receive each Order at a time and in a manner that allows the Bank a reasonable opportunity to act on the Order for the Order to be honored. Each Order shall not be effective if the Bank has already: (1) accepted or certified the Item; (2) paid the Item in cash; or (3) settled for the Item without having the legal right to revoke the settlement under statute, rule, or agreement. • Each Order will terminate at the earliest of the following: (1) 13 months from the date it is received by the Bank; (2) your closure of the Account; or (3) in the case of non -recurring ACH Orders, after the ACH Item is returned one (1) time. Unless the Order is renewed (and the fee applicable at the time charged), the Item may be paid if it is presented for payment after the Order terminates. If the Order terminated as a result of you closing the Account, a new Order must be placed at the fee applicable at that time if you later reopen the same Account. • If the Bank is able to and does stop payment on the Item, the payee or other holder of the Item may be able to recover from you the amount of the Item plus other appropriate fees and damages. • If more than one person is permitted to draw (make withdrawals) on your Account, any of those persons may stop payment on any Item. • You agree to indemnify, defend and hold the Bank harmless from and against any and all losses, damages, claims, judgments, liability, costs and expenses that the Bank may either incur or be assessed due to honoring the Order. You authorize the Bank to debit your Account for any such amount due the Bank_ Your indemnification obligations under this provision shall survive any termination of our Account relationship with you. • If the Bank re -credits your Account after paying the Item over a valid and timely Order, you agree to transfer to the Bank all of your rights against the payee or other holder of the Item and to assist the Bank in any later action taken against said payee or other holder. Order of Paying Checks and Other Items We post many transactions in "groups" at the end of each Business Day as follows: First, we credit your Account for Items and funds that have been accepted for deposit to your Account. Charges against your Account are then generally processed in the following sequence: (1) previously authorized transactions (e,g.. ATM wlthdrawals, POS Debit Card transactions, checks you cash at a branch, and checks drawn on the Bank that are negotiated at one of our branches); (2) wire transfers; (3) transfers of funds between Bank of the West Accounts; (4) Bank fees; (5) checks presented for payment against your Account; and (6) transactions presented through the ACH. Note: Online banking bill payments may be processed as either checks or ACH transactions. Within each group, we generally pay Items as follows: If Items have a machine readable date and/or time stamp, we pay the Items in the order of the date/time stamp. If we have no date/time stamp, we pay those Items after Items with a time stamp, sequenced from the lowest amount to the highest amount. If the Items are checks, we pay them in check number order (from low to high). When we cannot readily determine check numbers, we pay those checks after checks with identifiable check numbers in sequence from the lowest amount to the highest amount. The order in which transactions are paid can affect the total amount of Overdraft/Returned Item Fees On any given Business Day, we may have system issues that could cause us to change the order in which groups and transactions are processed. Our order of posting depends on a number of factors, including when a transaction occurs, whether it has already been approved by us or has become final, the order in which it is presented, the amount, system availability, risk to the Bank, and the type of transaction in question, among other variables. We will not give you prior notice of any change to the general posting order described above. We always reserve the right to post transactions that are payable to Bank of the West first, and we may post any transaction earlier or later in the process than is indicated above. As such, if you want to avoid an Overdraft or the possibility of a rejected transaction, you should take steps to ensure that your Account has a sufficient Available Balance to cover each of your transactions and fees, Note: We may provide you with balance, transaction and other information throughout the day via online banking, the Contact Center, or a branch employee Since many transactions are not ordered, posted or processed until the end of the Business Day, we cannot guarantee which Items or transactions (with a few exceptions, such as checks cashed at a branch) will be paid until processing has been completed. Check Printing If you do not purchase your check stock from us, you must be certain that we approve the check stock you purchase. We may refuse any withdrawals or transfer requests which you attempt on forms not approved by us or by any method we do not specifically permit. Even if we honor a nonconforming request, we are not required to do so later. On most Accounts, there will be a charge for check printing_ The printing charge will vary according to the check design, style and quantity you select. Check Processing We process Items mechanically by relying solely on the information encoded in magnetic ink along the bottom of the Items. This means that we do not individually examine all of your Items to determine if the Item is properly completed, signed and endorsed or to determine if it contains any information other than what is encoded in magnetic ink. You agree that we have not failed to exercise ordinary care solely because we use our automated system to process Items and do not inspect all Items processed in such a manner. Using an automated process helps us keep costs down for you and all Account holders. Checks Accepted for Deposit Checks accepted for deposit to, or to be cashed against, your Account may not be available for immediate withdrawal. Refer to the FUNDS AVAILABILITY POLICY section of this Agreement for information about when you can withdraw funds you deposit. Also, although we attempt to identify and prevent fraudulent transactions, we have no duty to you to determine whether any check you deposit or cash is forged, counterfeit, altered, improperly endorsed, or otherwise improper. Electron ification of Checks Many transactions which are initiated with a paper check may be converted into an electronic fund transfer through the Automated Clearing House (ACH) at some point in the payment process. This section describes four common ACH programs that may affect your Account and may be identified on your Account statement. • Point of Purchase Program (POP): Merchants participating in the "Point of Purchase" program are able to take one (1) of your checks and scan it at the point of purchase thereby converting it into an electronic payment through the ACH. Participating merchants are required to: (1) inform you of their participation in the program; (2) request your signature; (3) return your check to you marked "Void" or "Not Negotiable"; and (4) give you a receipt. This electronic transaction will be debited from the Account on which the check was drawn and will appear on your statement with the details of the transaction, including the check number. To participate in the Point of Purchase program, you must use a check with a preprinted check number on it. You may not use a check that you have previously used, whether or not it has been marked "Void" or "Not Negotiable." You may slop payment on these transactions before your Account is debited if you notify us that the check was converted to a Point of Purchase electronic payment. If you fail to notify us of the conversion of your check into an electronic payment, we will not be liable for our failure to stop payment on the electronic payment. • Accounts Receivable Truncated Checks Program (ARC): Some payees that you pay on a regular basis, such as utilities, credit card companies, and insurance companies participating in the ARC Program, may convert the check you mail to them into an ACH electronic debit from the Account upon which the check was written. The debit will appear on your Account statement with the check number, the payee's name and the indicator "Check Payment." The payee keeps the check and it will not be returned to you. When the payee participates in this program, the payee must notify you_ You should review all statement messages and materials accompanying your bill closely for this notification You may stop payment on these transactions as long as your stop payment request is received before the transaction is posted. • Back Office Conversion Program (BOC): Merchants or manned bill payment locations participating in the ACH "Back Office Conversion" program will accept your check for payment and later scan it in a back office environment converting it to an ACH electronic debit to your Account. Participating merchants and bill payment locations are required to inform you of their participation in the program with conspicuous signage as well as provide notification on your receipt to include a phone number for questions. This electronic transaction will be debited from the Account on which the check was drawn and will appear on your 20 21 statement with the details of the transaction, including the check number, payee information and date. You may stop payment on these transactions before your Account is debited. Represented Checks Program (RCK): Some payees may convert a returned unpaid check into an ACH electronic debit from the Account upon which the check was written. The debit will appear on your Account statement with the check number, the payee's name, and the indicator "Converted Paid Item." The payee keeps the check and it will not be returned to you. When the payee participates in this program, the payee must notify you. You should review all signage and postings at merchant locations for this notification when writing a check. You may stop payment on these transactions as long as your stop payment request is received before the transaction is posted. Merchant Capture Program Merchants may participate in a merchant capture program with their bank. This program allows merchants to electronically transmit checks to their bank for deposit to the merchant's account rather than physically deposit the checks at their bank. Merchants are not required to notify you when they are participating in a merchant capture program. When you write a check to a participating merchant, the merchant will retain and later destroy the check; the check will not be returned to you. The debit will appear on your Account statement along with your other payments. You may stop payment on these transactions as long as your stop payment request is received before the transaction is posted. You may or may not receive a substitute check or image of the check in your statement Check Deposits by a Mobile Deposit Service Both consumers and businesses to whom you make checks payable may participate in a mobile deposit service with their bank whereby they may make deposits of checks to their checking, savings, or money market account from their home or other remote locations by scanning eligible checks. The images of the checks and associated deposit account information will be delivered electronically to their bank rather than be physically deposited at their bank. Please be aware that a participant in a mobile deposit service is not required to notify you when they make such a deposit. If you write a check to a participant and the check is deposited using a mobile deposit service with their bank, the participant will retain the check, and the check will generally not be returned to you. The debit will appear on your Account statement along with your other payments. You may stop payment on these transactions as long as your stop payment request is received before the transaction is posted. You may or may not receive a Substitute Check or image of the check in your statement FUNDS AVAILABILITY POLICY Your Ability to Withdraw Funds Our policy is to make funds from your cash and check deposits available to you on the first Business Day after the Business Day we receive your deposit. Electronic Direct Deposits and wire transfers will be available on the Business Day we receive the deposit. Once the funds are available, you can withdraw them in cash and we will use the funds to pay Items presented against the Account, Determining the Availability of Your Deposits For determining the availability of your deposits, every day is a Business Day, except Saturdays, Sundays, and federal holidays, If you make a deposit at one of our branches on a Business Day that we are open, we will consider that day to be the day of your deposit. However, if you make a deposit at one of our branches on a non -Business Day, we will consider that the deposit was made on the next Business Day we are open. Deposits made at one of our night drop facilities are considered to be received and deposited when we remove them from the night drop. We will remove and process deposits once a day not later than the next Business Day following the day the deposit was placed in our night drop Longer Delays May Apply In some cases, we will not make all of the funds that you deposit by check available to you on the first Business Day after the day of your deposit. 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 $200 of your deposits, however, will be available on the first Business Day after the day of your deposit. If we are not going to make all of the funds from your deposit available on the first Business Day after the day of your deposit, 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, 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. In addition, some or all of the 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 $5,000 on any one day. • You redeposil 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 We are under no obligation to pay any Items you have authorized against funds that are not yet available. The Bank may pay such items at our discretion and overdraw your Account or they may be returned due to an insufficient Available Balance. Refer to the OVERDRAWN ACCOUNTS AND PAYMENT OF OVERDRAFTS section of this Agreement. Special Rules for New Accounts If you are a new customer, the following special rules will apply during the first 30 days your Account is open. When opening a business Account, you are generally considered a new customer even if you currently have a personal checking Account with the Bank, 23 Funds from electronic Direct Deposits and wire transfers to your Account will be available on the day we receive the deposit. Funds from deposits of cash and the first $5,000 of a day's total deposits of cashier's, certified, teller's, traveler's, 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. The excess amount over $5,000 will be available on the ninth 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 $5,000 will not be available until the second Business Day after the day of your deposit. Funds from all other check deposits will be available on the ninth Business Day after the day of your deposit. Deposits at Automated Teller Machines and Cut -Off Times If you make a deposit at one of our ATMs before 4:30 PM Pacific Time (PT) on a Business Day we are open, we will consider that day to be the day of your deposit. However, if you make the deposit after 4:30 PM PT, or on a non -Business Day, or on a day we are not open, we will consider our next Business Day we are open to be the day of your deposit The first $200 of funds from any deposit (cash or checks) made at ATMs we own or operate will be available on the first Business Day after the day of your deposit, unless a longer hold applies. Holds on Other Funds (Check Cashing) 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 Holds on Other Funds (Other Account) 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 subject to the time periods described in this section for the'type of check that you deposited. Effect of Release of a Hold Our voluntary release of a In on funds or the expiration of a hold, does not guarantee that the funds are "good" or that the check in question will not be returned. If any item you deposited is returned for any reason, your Account may be charged for such returned item(s). WITHDRAWALS AND ACCOUNT CLOSURES Closure of the Account We may close your Account at any time, with or without cause, upon reasonable notice to you and tender of the Account balance (including any accrued interest if applicable, subject to any agreement concerning maturity or the Bank's Right of Set- off) either in person or by mail. Items presented for payment after the Account is closed may be dishonored. Reasonable notice depends on the circumstances, and in some cases, such as when we cannot verify your identity or we suspect fraud, it might be reasonable for us to give you notice after the closure or when Account closure becomes effective. For instance, if we suspect fraudulent activity with respect to your Account, we might immediately freeze or close your Account and then give you notice. You agree to keep us informed of your current address at all times. If your checking, savings, or money market Account reaches a zero dollar balance ($0) and maintains that balance for 90 days or more, your Account may be closed without notice to you. In addition, your Account will be subject to closure as a result of inactivity and escheatment of the balance in accordance with applicable State law. Refer to "Dormant Accounts and Escheatment" in the GENERAL INFORMATION ABOUT DEPOSIT ACCOUNTS section of this Agreement. When you close your Account, you are responsible for leaving enough money in the Account to cover any outstanding Items to be paid from the Account. If you close your Account, any accrued interest that has not yet been credited to the Account will be forfeited. This includes Account closings caused by legal process. Reporting of Account Closure If you do not satisfactorily maintain your Account or if we close your Account for cause, information concerning your Account including, without limitation, insufficient funds activity, fraud or attempted fraud perpetrated by you, or criminal activity, may be reported to consumer reporting agencies. Information we report usually includes, as applicable, your name, business name, address, Taxpayer Identification Number or Social Security Number, driver's license number, and the date and reason the Account was closed. The consumer reporting agency may supply this information to others Adverse information provided to a consumer reporting agency may affect your ability to open another deposit account at other financial institutions. Right to Advance Notice of Withdrawal or for Cash Withdrawals We reserve the right to require not less than 7 days' notice in writing before each withdrawal from an interest -bearing checking Account (unless you are informed otherwise), savings Account or money market Account as defined by Regulation D. Additionally, if you require a withdrawal from your checking Account in the form of cash, we reserve the right to require indemnification from you and not less than 7 days' notice in writing before the withdrawal Authority to Withdraw Unless clearly indicated otherwise on the Account records, any signer on your Account, acting alone, who signs to open the Account or has authority to make withdrawals may withdraw or transfer all or any part of the Account balance at any time. Each of you (until we receive written notice to the contrary) authorizes each other person who signs or has authority to make withdrawals to endorse any Item payable to you or your order for deposit to this Account or any other transaction with us. The Bank may honor all transactions authorized by any signer on your Account, including third -party drafts, POS transactions, electronic transfers, and ATM transfers and withdrawals, as previously arranged, from any Account. For some Accounts, the Bank may require you to surrender any certificate or other writing evidencing the funds on deposit. 24 25 Other Withdrawal Limitations We reserve the right to require you to provide seven (7) days prior notice if you request and we agree to provide you with a large cash withdrawal. We reserve the right to obligate you to execute an indemnity for large cash withdrawals. We also, at our sole discretion, reserve the right to pay out any withdrawal from your checking Account in the form of a cashier's check We may refuse any withdrawal or transfer request which is greater in number than the frequency, permitled, or which is for an amount greater or less than any withdrawal limitations. We will use the date the transaction is completed by us (as opposed to the date you initiate it) to apply the frequency limitations. In addition, we may place limitations on the Account until your identity is verified,. Refer to the IMPORTANT INFORMATION ABOUT YOUR BUSINESS CHECKING, SAVINGS AND MONEY MARKET ACCOUNTS section of this Agreement for details related to frequency limitations on withdrawals from your savings and money market Accounts. Withdrawals from a certificate of deposit prior to maturity or prior to any notice period may be restricted and may be subject to a penalty. Refer to the IMPORTANT INFORMATION A80UT YouR BUSINESS CERTIFICATE OF DEPOSIT ACCOUNTS section of this Agreement for details related to any applicable withdrawal penalty_ Availability of Funds Refer to the FUNDS AVAILABILITY POLICY section of this Agreement for information about when you can withdraw funds you deposit. For those Accounts to which our Funds Avallability Policy does riot apply, you can ask us when you make a deposit when those funds will be available for withdrawal. We may determine the amount of available funds in your Account for the purpose of deciding whether to return an Item for insufficient funds at any time between the time when we receive the Item and when we return the Item or send a notice in lieu of return. DEBIT CARD SERVICES FOR BUSINESS ACCOUNTS Indicated in this section of the Agreement are types of transactions that you may conduct using your business Debit Card, Your business Debit Card permits you to access your Account via Bank of the West ATMs or Shared ATM Networks, to obtain cash at other financial institutions using the Mastercard® network, to conduct merchant and self-service POS purchases, and to conduct such other activities as we permit to holders of a Card, subject to certain transaction limitations as outlined below. In addition, you may arrange to have electronic funds transfers to or from your business Account that are authorized by you and initiated by third parties. Please read this .section of this Agreement carefully because it tells you your rights. liabilities and obligations for the transactions listed. Bank of the West ATM Account Access * A business Debit Card (available to all businesses), along with a PIN, allows you access to Bank of the West's ATMs Most of our offices have ATMs, and the ATMs are available virtually 24- hours a day. Consult a branch office for specific hours and locations. You may use your Card and PIN to perform any of the following transactions: • make deposits to your linked business checking, money market, or savings Account(s); • withdraw cash from your linked business checking, money market, or savings Account(s); • transfer funds between your linked checking, money market, or savings Account(s); • make payments from your linked business checking, money market, or savings Account(s), such as loan payments, accepted by Bank of the West; • obtain the Account balance of your linked business checking, money market, or savings Account(s); and • obtain a statement of the last ten (10) transactions (where available) on your Account(s). Some of these services may not be available at all Terminals. The types of ATM transactions you may perform depend on the types of Accounts you maintain with us and the type of Terminal. Designation of Primary Funding Account You may link all your checking, money market savings, and savings Accounts to your Card, but you must, however, designate one checking Account to be your primary funding Account. If you have more than one (1) checking Account linked to your Card, you may change your primary Account designated for use by contacting our Contact Center at the number listed at the end of this Agreement. Shared ATM Network Account Access * You may access your Account(s) at a Shared ATM Network using your Debit Card and PIN to: • withdraw cash from your primary business checking, savings, or money market Account(s); • transfer funds among your linked checking, money market and savings Account(s); and • determine the Available Balance in your linked primary business checking, savings, or money market Account(s). Some of these services may not be available at all ATMs. The types of ATM transactions you may perform depend on the types of Accounts you maintain with us. Frequency and Dollar Limitations at Bank of the West and Shared ATM Networks * Unless you are informed otherwise: • you may make an unlimited number of cash withdrawals from Bank of the West ATMs or Shared ATM Networks each calendar day; • you may withdraw up to $500 (or such other maximum amount as is agreed upon between you and the Bank) in cash each calendar day. For Shared ATM Networks, the dollar limitation includes the amount of any fee imposed by the owner of the ATM. We reserve the right to change these maximum daily limits on cash withdrawals, which we make based on periodic risk assessments. Types of Debit Card Point -of -Sale Transactions * You may access your primary checking Account to purchase goods (in person, online, or by phone), pay for services (in 26 27 person, online, or by phone), get cash from a merchant, if the merchant permits, or from a participating financial institution, and otherwise make any purchase with participating merchants who have agreed to accept the Debit Card. Frequency and Dollar Limitations on Point -of -Sale Transactions' Unless you are informed otherwise, using your Debit Card: • you may make up to 30 merchandise transactions per calendar day, per Debit Card. ,These transactions include PIN -based POS, signature -based POS, phone, electronic payments, and Internet purchases each calendar day; • you may purchase up to $3,000.00 (or such other maximum amount as is agreed upon between you and the Bank) worth of goods or services each day that you use your Debit Card; and • you may withdraw up to $500.00 in cash each day when you use your Debit Card to obtain cash from other financial institutions using the Mastercard® Network. Please note that the dollar limitation includes the amount of any fee imposed by the merchant Also, the dollar limitations on POS transactions may vary depending on the type of Account(s) you maintain with which the Debit Card is associated. We reserve the right to change these maximum daily limits on cash withdrawals and purchases, which we make based on periodic risk assessments. All transactions are subject to funds availability and applicable transaction limits. Currency Conversion and Foreign Transaction Fees For any transactions conducted in a currency other than U.S dollars, the merchant, network, or card association that processes the transaction may convert any related debit or credit into U.S. dollars in accordance with its then -current policies. Mastercard@ currently uses a conversion rate that is either (a) selected from a range of rates available in the wholesale currency markets (which rate may be different from the rate Mastercard@ itself receives), or (b) the government -mandated rate. The conversion rate may be different from the rate in effect on the date of your transaction and the date it is posted to your Account. Your foreign transaction will incur a Mastercard@ fee and a Bank of the West fee for each transaction that you conduct outside the United States in a foreign currency. These variable fees will be separately disclosed on your periodic statement. The applicable fees are set forth in our Schedule of Fees and Charges for Business Deposit Accounts Advisory Against Illegal Use It is your responsibility to use the Card only for valid and lawful purposes. If you use the Card for any other purpose or transaction, including, without limitation, unlawful gambling activity, you agree to assume all responsibility and liability for all losses, costs, and expenses you or we incur as a result of such use. We reserve the right to block and/or not approve any authorization request for use of the Card in any activity we believe is not lawful, including online gambling. If you breach any of the terms and conditions of this Agreement, unless otherwise limited by law, you agree to indemnify, defend and hold us harmless from and against any and all resulting losses, damages, claims, judgments, liability, costs, and expenses 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 the cardholder may be located. Your indemnification obligations under this provision shall survive any termination of our Account relationship with you. If you use your Card for any illegal transaction, this Agreement also applies to such transaction, and you agree to pay any and all amounts related to such transaction pursuant to the terms of this Agreement. We may, in our sole discretion, restrict the use of or terminate your Card. if we notice excessive use of your Card or other suspicious activities or if we reasonably believe the Card is, or has been used for one or more illegal transactions. Use of Your Debit Card Your Card is property of Bank of the West, and we may revoke your Card and privileges to access electronic services at any time without notice. You must follow the procedures used by the merchant, online merchant or financial institution for using your Card. Information About Debit Card Purchase Transactions When you use your Debit Card for a one time everyday POS purchase, you are making a withdrawal from your primary checking Account. You may be asked to use your PIN, sign a sales slip or other document, or only to provide your Debit Card number. Some merchants may assess a fee for this type of transaction. We are not liable if a merchant or financial institution refuses to accept your Debit Card or Debit Card number. (1) When you do a PIN -based transaction with your Debit Card, we deduct the amount of your transaction almost immediately, including any charge imposed by the merchant, from the Available Balance in the primary checking Account that you designate for this service. (2) When you do a signature -based transaction with your Debit Card, we give authorization to the merchant and place a hold ("Authorization Hold") on the Available Balance in your primary checking Account pending settlement from the merchant (refer to "Effect of Authorization Hold on Other Transactions" below). The Authorization Hold is placed for up to three (3) business days; however, for some types of purchases we may place an Authorization Hold for a longer period. The merchant is responsible for submitting and settling the transaction, and the Bank has no control over merchants to require that they do so in a timely manner NOTE: Merchants such as, but not limited to, car rental companies, and hotels may request approval from us for an estimated amount of your purchase (which may be more or less than the actual final amount of the purchase) since the merchant does not always know the exact amount of your purchase when it requests an authorization. (3) When you use your Debit Card number for an online purchase, some online merchants (through a participating network) request approval of the transaction but the amount is not deducted from your Available Balance until the merchant ships your purchase and submits settlement to the Bank. The Bank has no control over this arrangement with the online merchants or participating network. As is true with all your Debit Card transactions, you are responsible for ensuring you maintain a sufficient Available Balance in your Account to cover all transactions you conduct until they are debited from your Account. 29 Information About Settlement of Debit Card Transactions Stop Payment on Purchase Transactions Once we have given authorization to the merchant on a purchase transaction and any Authorization Hold has been placed on your Account, the merchant must settle the transaction by submitting the final transaction amount to the Bank for processing. (1) If the merchant settles within three business days, the transaction will be paid out of the Authorization Hold which will then expire immediately. • If the actual final amount is less than the Authorization Hold, the transaction will be paid, the Authorization Hold will expire, and the difference will be returned to the Available Balance in your Account. • If the actual final amount exceeds the Authorization Hold and you do not have a sufficient Available Balance in your Account to make up the difference, your Account will become overdrawn and you may be charged an Overdraft Fee. (2) If the merchant does NOT settle within three (3) business days, the Authorization Hold expires and the funds are returned to the Available Balance in your Account. When the merchant does settle: • If you have a sufficient Available Balance in your Account, the transaction will be paid. • If you do not have a sufficient Available Balance in your Account at the time the merchant settles (due to other transactions on your Account), your Account will become overdrawn and you maybe charged an Overdraft Fee. In all situations described above, the Bank is legally obligated to pay the actual finial amount of the transaction to the merchant. Effect of Authorization Hold on Other Transactions You are responsible for maintaining a sufficient Available Balance in your Account to equal the amount of your transaction (e.g., additional tip placed on a restaurant transaction) plus any other transactions you have conducted that may post to your Account during the Authorization Hold. The presence of an Authorization Hold (which may be for more than the actual amount of the purchase) on your Account could affect the Available Balance needed to cover other transactions. If another transaction (e g , check or ACH transaction) is presented for payment in an amount greater than the Available Balance in your Account after the Authorization Hold has been placed, and we decide to pay the transaction, your Account may become overdrawn and you may be subject to an Overdraft Fee. If we do not pay the presented transaction, the Item(s) may be returned and you may be subject to the Returned Item Fee. Refer to the OVERDRAWN ACCOUNTS AND PAYMENT OF OVERDRAFTS section of this Agreement for details. If you do not ultimately use your Debit Card to pay for your purchases or if the actual amount of purchases posted to your Account varies from the estimated amount authorized by us, it is the responsibility of the merchant, not the Bank, to cancel the prior authorization based on the estimated amount. The failure of the merchant to cancel a prior authorization may result in a temporary reduction of your Account balance If the authorization is for an amount higher or lower than the actual purchase amount, the hold may remain on your Account even after the actual purchase is paid from your Account. The actual purchase amount will be paid from your Account whenever the merchant sends it to us, even if that is after the hold has expired_ 30 You may not stop payment on a purchase transaction Instead, you must settle directly with the merchant any disputes you have about goods and services for which you pay with your Card or with the financial institution where you obtain cash with your Card. Merchants are independent from us, and we are not responsible for representations made by merchants from which you choose to purchase goods and services with your Card. Chip Cards at Merchant Terminals With the introduction of chip card technology, all ATM and Debit Cards are issued with an imbedded chip which provides increased security from fraudulent or counterfeit card usage. Chip cards used at merchant chip card terminals will typically require transactions to be processed as PIN -based, and signature -based processing of transactions may not be an available option at all terminals. Merchants who process purchase transactions are independent from us, and we are not responsible for the options they may offer for processing transactions using their chip card terminals Debit Card Security Measures We reserve the right to monitor Card transaction activity as a means to deter fraudulent transactions. If any unusual transaction activity is detected, we may attempt to contact you to confirm the authenticity of the activity. You owe us a duty to cooperate with us in any investigation of activity we believe is unusual and potentially. fraudulent. However, if we are unable to contact. you regarding any unusual or suspicious activity, we may, at our sate discretion, block your Card in an effort to prevent fraudulent transactions. In the event that you confirm the transaction activity as legitimate, we may, at our discretion, unblock your Card. We reserve the right to terminate all rights to use your Card if we have reason to believe that there has been an unauthorized use of your Card or PIN. We may, in our sole discretion, restrict the use of or terminate your Card if we notice excessive use of your Card or other suspicious activities. We reserve the right to decline transactions at the POS to deter possible fraud. It is your responsibility to update Bank of the West in a timely manner regarding any change in contact information, name, address, and phone number(s). Our right to monitor your Card transaction activity does not replace your responsibility to review your Account activity or change your liability regarding reporting unauthorized activity to us. You may not "opt out" of this process. Limitations on Frequency of Transfers from Savings and Money Market Accounts Additional limitations on withdrawals and transfers from savings and money market Accounts may apply. Refer to 'Transaction Limitations on Savings and Money Market Accounts" in the IMPORTANT INFORMATION ABOUT YOUR BUSINESS CHECKING, SAVINGS AND MONEY MARKET ACCOUNTS section of this Agreement. Related Fees Please refer to our Schedule of Fees and Charges for Business Deposit Accounts for additional information about fees. Also, refer to "Currency Conversion and Foreign Transaction Fees" above in this section. When you use an ATM or make a purchase at a Terminal not owned by us, you may be charged a fee by the ATM operator or any network used (and you may be charged a fee for a balance inquiry even if you do not complete a fund transfer). Your Liability for Use of Debit Card You are responsible for selecting individuals from your business who are authorized to hold Cards ("users"). You agree that the Bank will charge your Account for the amount of each authorized transaction in which the Card or the Card number is used- You agree to indemnity, defend and hold the Bank, its directors, officers, employees, and agents harmless from and against any and all losses, damages, claims, judgments, liability, costs, and expenses arising from or relating to the issuance of any Card and/or payment of any and all transactions and charges incurred with the Card. Your indemnification obligations under this provision shall survive any termination of our Account relationship with you. You will require users to comply with the provisions of this Agreement and all other applicable agreements You are fully responsible for the failure of any user to comply with this Agreement. You agree that you are responsible for obtaining the Card from any user who leaves your business or any user that you determine is no longer authorized to have a Card and canceling the Card immediately. You remain responsible for all transactions with any Card that occur before the Card is cancelled with Bank of the West. Mastercard@ Debit Card Zero Liability Mastercard@ imposes certain limits on cardholder liability for a Debit Card. You will not be liable for any unauthorized transactions using your Debit Card, if: (1) you can demonstrate that you have exercised reasonable care in safeguarding your Debit Card from the risk of loss or theft; and (2) upon becoming aware of a loss or theft, you promptly report the loss or theft to us. If you do not meet these conditions, you may be liable for the full amount of the unauthorized transaction(s). Electronic Fund Transfers Initiated By Third Parties In addition to transactions you may conduct with your Debit Card, you may authorize a third party to initiate electronic fund transfers between your business 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. For example, your authorization to convert a check to an electronic fund transfer or to pay electronically a returned check charge can occur when a merchant provides you with notice and you go forward with the transaction (typically, at the point of purchase, a merchant will post a sign and print the notice on a receipt). In all cases, these third party transfers will require you to provide the third party with your Account number and bank information. This information can be found on your check as well as on a deposit or withdrawal slip. Thus, you should only provide your bank and Account information (whether over the phone, the Internet, or via some other method) to trusted third parties whom you have authorized to initiate these transfers. Examples of these transfers include, but are not limited to: • Preauthorized credits: You may make arrangements for certain Direct Deposits to be accepted into your checking, money market, or savings Account(s). • Preauthorized payments: You may make arrangements to pay certain recurring bills from your checking, money market, 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 as discussed in " Electron ification of Checks" in the CHECKS section of this Agreement. 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. Errors or Questions Concerning Your Card and Certain Other Transactions Write or call us at the phone number and/or address listed at the end of this Agreement as soon as possible if you believe that your statement or any transaction receipt is incorrect or if you need more information about a Card transaction or electronic fund transfer listed on the statement or transaction receipt. We must hear from you no later than 30 days after we sent you the first statement on which the error or the problem appeared. You can call us, but doing so may not preserve your rights. When you call or write, specify your designated Account number, Card number, the dollar amount of the suspected error, a description of the error, and an explanation of why you believe there is an error. If you tell us orally, we may require that you send us your complaint or question in writing within 10 Business Days. If we decide no error was made, we will send you a written explanation after we finish our investigation. You can request, and we will provide, copies of the documents used in our investigation. We may assess a reasonable fee to cover our duplication costs. Lost and Stolen Cards If any user's Card is lost or stolen, you or any user or designee must notify us immediately either orally or in writing. You may call or write to us at the address or phone number listed at the end of this Agreement. Termination of Business Debit Card Services We may terminate your business Debit Card Services at any time without cause_ We specifically reserve the right to terminate these Services if: (1) you or any user of a business Debit Card should breach any of the terms and conditions set forth in this section of this Agreement; (2) you are in default of any other Agreement with the Bank (including but not limited to your failure to pay any indebtedness owed to us when due should your business close, or in the event of bankruptcy, insolvency, or liquidation). You may cancel the business Debit Card services by calling us or writing us on your business letterhead at the address listed at the end of this Agreement. In your letter, please identify the Debit Card number, your designated Account number, and the service and/or Debit Card(s) to be canceled. Debit Card Usage Not Governed by Electronic Fund Transfer Act Your Debit Card transactions as well as any electronic transfer of funds to or from your business Account are not governed by the Electronic Fund Transfer Act. You understand and agree that you are not a "consumer" within the meaning of the Federal Electronic Fund Transfer Act and the Bureau of Consumer Financial Protection Regulation E, and the Act/Regulation shall not apply to any dispute arising between you and the Bank. 32 33 Mastercard@ Easy SavingsT"' Program Mastercard@ Easy Savings Program Cardholder Terms & Conditions: Cardholder must be enrolled in the Mastercard@ Easy Savings Program. Payments must be made at participating merchant locations with only an eligible Mastercard(R) card issued by a US bank. PIN -based debit transactions are not eligible. Participating merchants and rebate offers subject to change. Restrictions apply. If you do not wish to receive these rebates, contact the financial institution that issued your Mastercard@ small business card to cancel your enrollment in the Mastercard@ Easy Savings Program. Go to http://www.easysavings,com for more details, FUNDS TRANSFERS Funds Transfers A funds transfer is the transaction or series of transactions that begins with the originator's payment order, made for the purpose of making payment to the beneficiary of the order A funds transfer is completed by the acceptance by the beneficiary's bank of a payment order for the benefit of the beneficiary of the originator's order. Funds transfers are commonly called wire transfers but may also be transfers through an Automated Clearing House, though other transactions may be covered in this "Funds Transfers" section. Refer to the separate WIRE TRANSFER REQUEST or any other wire transfer agreement that is required to be executed at the time of any funds transfer for terms and conditions that apply. Reservation of Rights on Funds Transfers At our sole discretion and without liability to you or any third party, we reserve the right, for any or no reason, to reject, impose conditions on, cancel, delay or suspend any instructions to initiate any funds transfer on your behalf (even if previously accepted); similarly, at our sole discretion and without liability to you and without prior notice, we reserve the right to refuse to receive any funds transfer on your behalf. If we take any such action described in the previous sentence, we will use reasonable efforts to notify you of such action by communicating with you in a method allowed by these policies or in some other commercially reasonable manner, including verbally notifying you or your designated representative, but we shall have no liability to you or any third party if we are unable to give such notice to you. In the event we take any such action as described above in this paragraph, you agree that you will indemnify us and hold us harmless from all loss, cost or expense arising from such action, including without limitation, with respect to claims by third parties. Notice of Receipt of Funds Transfer In the event we receive a funds transfer for your Account, we are not responsible for notifying you of our receipt of the funds transfer. The funds transfer will be reflected on your Account statement for the applicable period. You agree that we shall not be liable for any damages, claims, or losses including, without limitation, loss of any interest incurred by you for any failure on our part to notify you of receipt of a funds transfer. Funds Transfer's Reliance on Identification Numbers If a funds transfer order designates the beneficiary by both name and an identifying Account number, we, or any bank receiving the funds transfer order, may pay the funds transfer order based upon the number alone, even if the Account number does not belong to the named beneficiary. If a funds transfer order designates an intermediary bank or a beneficiary's bank by both name and an identifying number, we, or any bank receiving the funds transfer order, are entitled 10 rely on the identifying number alone, even if the number does not belong to the named bank Transmitting and Recording Information About You in the Funds Transfer Payment Process Any funds transfer (or payment order) executed by us is subject to rules and regulations applicable to funds transfers, including the Federal Bank Secrecy Act and its regulations. In order to comply with all applicable laws and regulations in executing any funds transfer, we may transmit information regarding you, such as your name, address, and Account number, as part of the payment process. In addition, when we receive any funds transfer or payment order, we may require and record your name and Account number and other information By sending or receiving funds transfers through us, you agree that you will assist us in complying with the applicable laws and regulations and hold us harmless from any liability in connection with our compliance with the laws or regulations. Transfers Received Through the Automated Clearing House If the Bank receives a credit entry on your behalf or for your Account where the credit entry was transmitted through the Automated Clearing House and if the Bank does not receive payment for the credit entry from the financial institution originating the payment, the credit to your Account may be reversed. ACH AND INTERNATIONAL ACH TRANSACTIONS Financial institutions are required by law to scrutinize or verify any international ACH transaction (IAT) that they receive against the Specially Designated Nationals (SDN) list of the Office of Foreign Assets Control (OFAC). This action may, from time to time, cause us to temporarily or permanently suspend processing of one or more IATs and may affect the settlement and/or availability of such payments, At our sole discretion and without liability to you or any third party, we reserve the right to refuse to initiate or receive ACH transactions for any or no reason, including, without limitation, any ACH transfer to or from any person or entity located in a country with which the Bank has determined not to engage. INFORMATION ABOUT FDIC INSURANCE FDIC Insurance Funds in your Account(s) with us are insured by the Federal Deposit Insurance Corporation (FDIC) and backed by the full faith and credit of the United States. The amount of insurance coverage you have depends on the number of Accounts you have with us that are of different "ownership." An individual Account is one unique form of "ownership" A joint Account, a pay -on -death Account, and a self -directed qualified retirement Account (e.g., an IRA) are examples of other forms of "ownership " Deposit insurance for a person's self -directed qualified retirement Account is provided at a maximum of $250,000, (An IRA is a self -directed qualified retirement Account as is any Account where the owner decides where and how to invest the balance.) Additionally, funds are insured up to $250,000 per depositor for the total amount of funds combined in all of your other insured Accounts with us. Deposits owned by corporations, partnerships, and unincorporated associations (including for -profit and not -for -profit organizations) are insured together under the same ownership category up to $250,000. Such deposits are insured separately from the personal deposits of an organization's owners, stockholders, partners or members To qualify for insurance coverage under this ownership category, a corporation, partnership or unincorporated association must be engaged in an "independent activity," meaning that the entity is operated primarily for some purpose other than to increase deposit insurance coverage. If you want a more detailed explanation or additional information, please contact the FDIC directly at 1-877-ASKFDIC (1-877-275- 3342). You can also visit the FDIC website at www.fdic.gov and click on the "Deposit Insurance" link. The link includes detailed contact information as well as a deposit insurance estimator, IMPORTANT INFORMATION ABOUT YOUR BUSINESS CHECKING, SAVINGS AND MONEY MARKET ACCOUNTS Rate Information Interest rates are determined by Bank policy, market conditions and the daily balance of the Account. Frequency of Rate Changes We may change the interest rate on your Account as frequently as daily. Rate change notices will not be sent; however, our current rates are available at www.bankofthewest.com or by telephoning any Bank of the West branch or our Contact Center at the number listed at the end of this Agreement. Tiered Rate Accounts For tiered rate Accounts, interest will be paid on the entire collected balance at the interest rate set for the tier into which the entire end -of -day collected balance falls. We reserve the right to pay the same interest rate on more than one balance tier. We also reserve the right to pay lower interest rates on the higher or highest balance tiers. Compounding and Crediting Frequency Interest will be credited monthly on interest -bearing business checking, savings, and money market Accounts. Refer to the Bank's current Rate Sheet to determine the compounding frequency for your checking, savings or money market Account, as applicable. Interest is available for withdrawal when it has been credited to your Account Computation Method We use the daily balance method to calculate the interest on your Account. This method applies a daily periodic rate to the principal in the Account each day. For all interest -earning 36 checking Accounts and money market Accounts, interest is accrued and calculated on the daily collected ending balance. On savings Accounts (other than money market savings Accounts), interest is accrued and calculated on the daily ending balance. Interest is calculated on an actual/365-day basis (actual/366 in leap years). Annual Percentage Yield or APY The annual percentage yield quoted for your Account assumes that interest earned remains in the Account, that all funds remain on deposit for one (1) year from the date of deposit, and that the interest rate does not change. Interest withdrawn will reduce the annual percentage yield earned Effect of Closing an Account If you or we close your Account before interest is credited or change your Account to a non -interest bearing Account within the statement period, you will not receive the accrued interest You will not forfeit interest if your Account closes because you are transferring it to another Bank of the West branch. Accrual of Interest on Noncash Deposits Interest begins to accrue no later than the Business Day we receive credit for the deposit of noncash Items (for example, checks). Items drawn on other financial institutions usually take one (1) to three (3) Business Days before we receive Provisional Credit for them. We may reverse interest that has been earned on any deposit that is reversed for any reason. Transaction Limitations on Savings and Money Market Accounts For savings and all money market Accounts you may make up to six (6) transfers or withdrawals by means of a preauthorized, automatic, or telephone transfer to another Account of yours or to a third party or by check, draft, Debit Card, or similar order to a third party or to another Account (includes online banking transfers) during either the statement cycle period (for money market Accounts) or the calendar month (for savings Accounts). A preauthorized transfer includes any arrangement with us to pay a third party from your Account at either: (1) a predetermined time; (2) on a fixed schedule; or (3) upon oral or written orders including orders received through the Automated Clearing House (ACH). If the transfer or withdrawal is initiated in person, by mail, messenger, or at an ATM, then there is no limit on the number of payments that may be made directly to you or directly to us for amounts you owe us, or transfers to other Accounts you have with us. Withdrawals by phone are also unlimited if you are requesting that a check be mailed to you. For each transaction in excess of the six (6) during the statement cycle period or calendar month (whichever applies), an Excess Withdrawal Fee will be charged regardless of the Account balance, other fees, or the type of withdrawal. Transfers from savings Accounts (excluding money market Accounts) through online banking or through our Contact Center will be prevented if the limit of six (6) transactions for the calendar month has already been reached. However, other countable transactions such as a pre -authorized payment from your savings Account to a third party, outgoing wire transfer request, etc, that occur during the same calendar month will not be prevented and could cause you to exceed the six (6) transactions Therefore, you are responsible for managing your savings or money market Account to stay within the transaction limitations IGN If you exceed six (6) transfers in the applicable period, the Bank will notify you and may close your Account or transfer the balance of your Account to a checking product type that does not have transaction limitations Transfers and payments are counted as of the end of the day the funds are actually withdrawn to determine whether any transfer threshold has been exceeded. Analyzed Business Checking Balance Related Terms Average Ledger Balance. The average daily ledger balance for the Account for the analysis cycle. This figure is equal to the aggregated daily ledger balance for the cycle, divided by the number of days in the cycle. Average Daily Float The average daily float is equal to the aggregated daily balances not collected for the cycle, divided by the number of days in the cycle. Float calculations are based on the time assigned for the collections of deposited Items which may be longer or shorter than the actual collection time. Average Daily Collected Balance. The average daily collected balance is equal to the average ledger balance less the average daily float. Negative Collected Balance. The average daily adjusted collected balance is the sum of the negative collected balances and the average daily collected balance_ This figure is used to calculate the reserve requirement. Average Daily Adjusted Collected Balance. The average daily adjusted collected balance is the sum of the negative collected balances and the average daily collected balance. This figure is used to calculate the reserve requirement. Legal Reserve Requirement. Reserves are funds which the Bank is required to maintain at a Federal Reserve Bank for depasits. Reserves are calculated by multiplying collected balances by a fl.xed factor of 10%, regardless of the actual reserve requirement for your funds. The Bank's actual reserve requirement may be lower based on sub -accounting and other factors. Balance to Support Services. The balance to support services is equal to the average collected balance less the reserve requirement. Average Daily Ledger Balance Overdraft. The average daily ledger balance Overdraft is the sum of the aggregated daily ledger Overdraft balances divided by the number of days in the month. This figure is used to calculate the interest charge for ledger balance Overdrafts. Earnings Credit. The earnings credit is a credit earned by the customer to apply toward the payment for services provided. This figure is calculated by multiplying the balance to support services by the earnings credit rate in effect, divided by the number of days In the year, multiplied by the number of days in the month The earnings credit rate is subject to change without prior notice. Current pricing information is available from your relationship manager. Prime Rate. The prime rate shall mean an index for a variable interest rate which is quoted, published, or announced by Bank of the West as its prime rate and as to which loans may be made by Bank of the West at, above, or below such rate. Analyzed Business Checking: Interest on Overdrafts and Uncollected Funds Used Interest on Overdrafts or uncollected funds may be charged at the Prime Rate plus four (4) percent. Interest on Overdrafts is applied to the average daily ledger balance Overdraft for the month. Interest on uncollected funds used is applied to the negative collected balance for the month_ Interest shall be adjusted concurrently with any change in the Prime Rate Interest on each advance shall be computed on a 365/365 day basis (366 for a leap year), and charged on the actual number of days elapsed. IMPORTANT INFORMATION ABOUT YOUR BUSINESS CERTIFICATE OF DEPOSIT ACCOUNTS Rate and Term Information You will be paid interest on your certificate of deposit (CD) at the disclosed rate until the first maturity of your Account. Your Account will mature as stated on your CD receipt. Compounding Frequency Interest will be compounded monthly. Crediting Frequency For CDs with terms of 32 days or longer, you may choose the frequency of interest payments. Interest can be paid as frequently as monthly, but must be paid at least once a year. On CDs, interest may be reinvested into the CD, credited to another checking, money market or savings Account, or paid to you by check. CDs with terms of 7 to 31 days will receive interest only at maturity. Interest may be reinvested into the CD or deposited to a checking, money market or savings Account. Computation Method We use the daily balance method to calculate the interest on your CD. This method applies a daily periodic rate to the principal in the CD each day. For all CDs, interest is accrued and calculated on the daily ending balance on an actual/365-day basis (actual/366-day basis in leap years). Annual Percentage Yield or APY The annual percentage yield quoted for your CD assumes that interest earned remains in the CD, that all funds remain on deposit for one (1) year from the date of deposit (even for shorter term deposits), and that the interest rate does not change. Effect of Closing an Account If you close your CD before interest is credited, you will receive the accrued interest. CDs closed during the grace period will forfeit any accrued interest. Accrual of Interest on Noncash Deposits Interest begins to accrue on noncash deposits on the Business Day you deposit them (for example, checks). Grace Period All automatically renewing CDs with terms of 32 days or longer have a 10 calendar day "grace period" following the maturity 38 39 date of the CD when you can withdraw funds or make changes to the CD without an earl] withdrawal penalty CDs with terms of 7 to 31 days have a 1-day grace period. Additional Deposits Unless otherwise indicated, additional deposits of $100 or more can be made only within the grace period on automatically renewable CDs. Interest on the additional funds, both cash and non -cash, will begin to accrue on the Business Day you make your deposit and will be at the same rate as the renewed CD The additional deposit(s) will mature at the same time as the renewed CD. Withdrawals of Interest Prior to Maturity Interest which has been credited to the CD during the term of the CD may be withdrawn without penally at any time. Interest which has been reinvested at maturity may be withdrawn without penalty at any time provided that the CD term and interest rate have not changed since the renewal. If either the term or interest rate of the CD changes upon renewal, any credited interest becomes part of the principal of the CD. A withdrawal of interest will reduce earnings Withdrawals of Principal Prior to Maturity You may make withdrawals of principal from your CD before maturity only if we agree at the time you request the withdrawal Your withdrawal prior to maturity may be subject to an early withdrawal penalty. Principal withdrawn before maturity is included in the amount subject to the early withdrawal penalty. Early Withdrawal Penalties Any early withdrawal penalties assessed may reduce the principal balance remaining in your CD after the withdrawal. For CDs with terms of 7 to 31 days or terms of 60 months and longer, the penalty is calculated at the interest rate in effect on the CD at the time of the withdrawal. The penalties on the amount withdrawn are as follows: TERM PENALTY 7 to 31 Days $25 + 31 days simple interest 32 Days to 11 Months $25 + 1 % of the amount withdrawn 12 to 59 Months $25 + 3% of the amount withdrawn 60 Months or Longer 730 days simple interest Additional Withdrawals Additional withdrawals without penalty are permitted upon a depositor's death or mental incapacity. Withdrawals at any other time may be permitted at the Bank's discretion but may be subject to early withdrawal penalties. CDs closed during the grace period will forfeit any interest that accrued during the grace period. Automatically Renewable Certificates of Deposit An automatically renewable CD will automatically renew at maturity for the same term. You may prevent automatic renewal if we receive written notice from you before maturity of your intention not to renew, if you withdraw the funds in the CD at maturity (or within the grace period mentioned above) or if we receive written notice from you within the grace period mentioned above. If you prevent renewal, interest will not accrue after final maturity. Each renewal term will be the same as the original term, beginning on the maturity dale (unless we tell you otherwise). The interest rate will be the same interest rate that we offer on new CDs on the maturity date for the same term, minimum balance (if any) and other features as the original time deposit (unless we tell you otherwise). Renewal Notices If your CD automatically renews, we will mail a renewal notice approximately fifteen (15) days prior to the maturity date (except for CDs with terms of 7 to 14 days). The renewal notice will include a phone number you can call on the maturity date (or shortly thereafter) to find out the interest rate and annual percentage yield on your renewed CD. Non -Automatically Renewable Certificate of Deposit Any non-renewable CD will not automatically renew at maturity. Interest will not accrue after the maturity date. We will mail a maturity notice approximately fifteen (15) days prior to the maturity date (except for 7-14-day terms). The maturity notice will include a phone number you can call if you would like to open another CD. Returned Interest Disbursements In the event an interest disbursement from your CD is returned to the Bank or cannot be disbursed, we will do the following: • By Check: If an interest distribution check is returned to the Bank for any reason, we will do two things: (1) cancel the distribution check and credit the funds to your CD, and (2) no longer mail interest distribution checks to you but rather credit any interest to the CD. If you provide us with a valid address, you may then request that we reinstate the mailing of interest distribution checks on the CD. Please note that in the event an interest check is credited back to a CD, and the CD subsequently renews, all interest credited will become part of the principal if either the CD term or interest rate change at renewal. As such, any withdrawals after the grace period may be subject to an early withdrawal penalty. • By ACH or Internal Transfer: If an interest payment in the form of an ACH debit or internal transfer from your CD cannot be disbursed for any reason, we will do two things: (1) issue a check payable to you in the amount of the payment and mail it to you at the last known address we have on our records for you; and (2) issue all future interest payments in the form of a check payable to you. We will continue to issue these payments in the form of a check until you notify us that the necessary corrections to the ACH or internal transfer information have been made and you request that we reinstate the ACH debit or internal transfer of the interest payments. 40 41 OVERDRAWN ACCOUNTS AND PAYMENT OF OVERDRAFTS Overdrawn Accounts or Insufficient Funds If your business Account is overdrawn I:)r any reason including.- (1) the Bank cannot collect the funds frOM a deposit you have made; (2) the Bank has intentionally or unintentionally paid Items for which you do not have a sufficient Available Balance; or (3) there was not a sufficient Available Balance to cover the amount of a service or other Bank charge, then you agree io reimburse the Bank for the amount of the Overdraft (including any Returned Item or Overdraft Fee) without regard to the signer on the Item(s) that created the Overdraft or who benefited from the charge or Overdraft. Payment of an overdrawn Account is due immediately or upon demand by the Bank. Absent an earlier demand and declaration of default or absent your request to declare an Account in default, if you fail to pay the amount of the overdraft on an Account within 60 calendar days, we will deem the Account to be in default and will take such actions as we deem appropriate for collecting an Account in default. Such actions include, without limit, closing an Account and sending the Account for collection You are responsible for managing your Account to ensure a sufficient Available Balance is maintained to cover your transactions. You can help avoid Returned Item and Overdraft Fees by maintaining a record of your deposits and withdrawals by check, recurring payments and Debit Card transactions. In the event your Account does not have a sufficient Available Balance to cover an electronic transaction conducted in any manner, including at the ATM or at a merchant either with or without a PIN, we reserve the right, in our sole discretion, to pay or dishonor the electronic transaction. If your Account is overdrawn by reason of an electronic transaction, an Overdraft or Returned Item Fee may be charged to your Account (as applicable). Should we choose to honor your electronic transaction, you will not be advised or warned that the transaction is causing your Account to become overdrawn and will not have the prior right to cancel the transaclion. Overdraft or Returned Item Fees are in addition to any applicable fees related to the transaction. It should be understood that the Bank is under no obligation to pay any checks, drafts, electronic or other Items you have authorized which may overdraw your Account Also, the fact that we may honor withdrawal requests when you have an insufficient Available Balance in your Account does not obligate us to do so later. So you can NOT rely on us to pay Overdrafts on your Account regardless of how frequently or under what circumstances we have paid Overdrafts on your Account in the past. We can change our practice of paying Overdrafts on your Account without notice to you. We may use subsequent deposits, including Direct Deposits of social security or other government benefits, to cover such Overdrafts and Overdraft Fees. Standard Overdraft Practices We may choose, at our discretion, to assist you with an unplanned or occasional Overdraft by paytrig checks, ATM withdrawals, ACH, recurring and nonrecurring Debit Card transactions and purchases, and other Items drawn on your Account and charging you an Overdraft Fee when your Account does not have a sufficient Available Balance to cover those Items. Whether we will pay a particular Item is decided by the Bank, at our sole discretion, by evaluating a number of factors relating to your Account. Opting_ Out - If you do not want us to pay checks, ATM withdrawals, ACH, or recurring or nonrecurring Debit Card transactions or purchases when doing so will overdraw your checking Account, please contact your local branch or call our Contact Center at the number listed at the end of this Agreement. Your opt out Choice will become effective within two (2) Business Days. Even if we do not pay an Item, you will incur a Returned Item Fee If we return an Item because your account has an insufficient Available Balance. ATM and Business Debit Card transactions will generally be declined. Even when you have opted out, there still may be times when an Item will be paid (or an ATM or Debit Card transaction will not be declined), an Overdraft occurs, and an Overdraft Fee is charged. The dishonoring of a check, ACH Item, recurring or nonrecurring Debit Card transaction, or other Items drawn on your Account could result in additional fees or other consequences imposed under your agreement with the payee or by law The Bank reserves the right to amend or terminate our standard Overdraft practices without notice at any time Additionally, there are certain instances where checking Accounts are not eligible for our Standard Overdraft Practices, Overdraft Program Alternatives We offer Overdraft programs, such as BusinessLink Reserve (line of credit; credit approval required) and Savings Overdraft Protection (for sole proprietorships), which may be less expensive than our Standard Overdraft Practices. Refer to the Schedule of Fees and Charges for Business Deposit Accounts for applicable fees for these Overdraft program alternatives. Savings Overdraft Protection for Sole Proprietorships A sole proprietorship is the only non -personal entity for which Savings Overdraft Protection may be set up. It is not available for any other type of business entity. Savings Overdraft Protection is available for sole proprietor Accounts only when an individual either does not want or does not qualify for our BusinessLink Reserve product. This service is available if you have a business savings or business money market Account and any business checking Account. The owner(s) of the business checking Account must be the same as the owner(s) of the business savings or business money market Account. If there is an insufficient Available Balance in your business checking Account to cover the amount of Items presented for payment, we will automatically transfer funds from the Available Balance in your linked business savings or business money market Account to your checking Account. We transfer funds in increments of $50 up to the amount of the Overdraft, including any Savings Overdraft Protection Transfer Fee ('Transfer Fee"), up to the amount of the Available Balance in your linked business savings or business money market Account. The total of all $50 increments is considered one transfer, and we charge a Transfer Fee per transfer each day that a transfer occurs If your business savings or business money market Account does not have a balance of $50, but there is a sufficient Available Balance to cover the Overdraft amount and the Transfer Fee, then the entire 42 43 business savings or business money market balance will be transferred into the business checking Account. If one (1) or more Items are presented against your business checking Account and there is a sufficient Available Balance in your linked business savings or business money market Account to cover one (1) or more of the Items plus the Transfer Fee, we will transfer enough to cover as many of the Items as possible plus the Transfer Fee, up to the remaining Available Balance in your savings or money market Account. If you have Savings Overdraft Protection and a transfer occurs to a linked checking Account that is overdrawn $5 or less, no Transfer Fee will be assessed. Each Savings Overdraft Protection transfer counts as one (1) of the six (6) limited transactions you are allowed each calendar month from your savings Account or each statement cycle from your money market Account. For savings Accounts, if you have already used the six (6) allotted transactions during any calendar month, the Overdraft transfer will not occur. For a money market Account, if you have already used the six (6) allotted transactions during any statement cycle, the Overdraft transfer may occur and you will be charged the Excess Withdrawal Fee in addition to the Transfer Fee. Funds you deposit into your savings or money market Account may not be available immediately for Savings Overdraft Protection. Savings Overdraft Protection does not cover ATM and everyday Debit Card transactions as they post to your Account throughout the day Savings Overdraft Protection only covers transactions that post during nightly batch processing. Accordingly, if you attempt to make an ATM or everyday Debit Card transaction against an insufficient Available Balance in the business checking account then the transaction may be declined even if you have Savings Overdraft Protection and there is a sufficient Available Balance to transfer from your savings or money market Account to cover the transaction. BusinessLink Reserve Line If you have a BusinessLink Reserve Line as Overdraft protection for your linked business checking Account and one (1) or more Items are presented against your business checking Account, we will transfer enough funds to the business checking Account to cover as many of the Items as possible plus the Loan Advance Fee, up to the available credit limit in your BusinessLink Reserve Line Transfers will be made in multiples of $100 or in the amount of credit available from your BusinessLink Reserve Line. However, if the available credit limit in your BusinessLink Reserve Line is insufficient to cover any one (1) of the Items plus the Loan Advance Fee, no transfer from your BusinessLink Reserve Line will occur. The BusinessLink Reserve Line as Overdraft protection for your linked business checking Account covers checks. ATM withdrawals, everyday Debit Card transactions, recurring Debit Card transactions, ACH debits, automatic electronic payments and other transactions from your business checking Account. You must apply for the BusinessLink Reserve Line. Total Overdraft coverage is determined by your available credit limit, and credit is subject to credit approval. Please refer to the BusinessLink Reserve Line Agreement and Addendum for full details ABOUT YOUR ACCOUNT STATEMENTS Account Statements in General Statements are a valuable tool to help prevent fraudulent or mistaken transfers Your statement will show the transactions that occurred in connection with your Account during the statement period. Statements on checking and money market Accounts are generated monthly based on the statement cycle date of the Account. Your first statement cycle on any Account may be less than 30 days, Statements on savings Accounts (excluding money market Accounts) are generated quarterly unless there has been electronic transaction activity on the Account in which case a statement will be generated for the month in which the electronic transaction activity occurred. Statements and Your Responsibility to Review Periodic statements include all Account activity for the statement period. It is important that you review each statement upon receipt and notify us in writing of: • Any error, omission, alteration, unauthorized transaction, unauthorized signature, or other irregularity in any deposit, withdrawal, transfer, or fee; and • Any loss, theft, improper or unauthorized use of any instrument evidencing funds on deposit, or any banking forms relating to an Account. You must examine your statement of Account or any checks that the Bank has mailed or delivered to you with "reasonable promptness " If you discover (or reasonably should have discovered) any errors, omissions, unauthorized transactions, unauthorized signatures, alterations, forgeries or other irregularities, you must promptly notify us of the relevant facts. As between you and us, if you fail to do either of these duties, you will have to either share the loss with us, or bear the loss entirely yourself (depending on whether we used ordinary care and, if not, whether we contributed to the loss). The loss could be not only with respect to Items on the statement but other Items with unauthorized signatures or alterations by the same wrongdoer. You agree that the time you have to examine your statement and report to us will depend on the circumstances, but will not, in any circumstance, exceed a total of 30 days from when the statement is first sent or made available to you. If you do not report unauthorized transactions within 30 days after the statement is mailed or made available, we will not be liable for payment of any forged or unauthorized Items shown on the statement. In the event that unauthorized or forged transactions are committed by the same person, the 30 days begins on the date the first statement in which the first unauthorized transaction appears is mailed or made available. Reports of unauthorized transactions or incorrect activity not involving electronic fund transfers must be made in writing to the branch where your Account is held. For claims of check forgery, you may initially contact your Branch of Account or call our Contact Center at the number listed at the end of this Agreement. You may be required to visit a branch to sign a claim of forgery in the presence of a Bank employee You agree that you will have at least two different people review your statements, notices and returned checks, or in the alternative, the person who reviews those will be someone who does not have authority to transact on the Account. 44 45 You agree to cooperate in any investigation we may undertake regarding your claim. We reserve the right to Investigate your claim fully and we reserve a reasonable length of time for our investigation. We reserve the right to exercise all of our legal defenses to your claim Please note that the Bank stops preparing and sending statements for dormant Accounts and Accounts for which the Bank has received returned mail from the address on file. To request copies of any paid checks, contact your Branch of Account or call our Contact Center at the number listed at the end of this Agreement. Combined Statements Multiple checking, savings, money market, and certificate of deposit Accounts may be automatically combined on one (1) statement if they have the same ownership and mailing address Check Safekeeping You agree that you will not receive your canceled checks With our Check Safekeeping service, we keep copies of your deposit slips and canceled checks in an electronic form for seven (7) years rather than return the originals to you in your statement. To request copies of deposit slips or paid checks, contact your Branch of Account or call our Contact Center at the number listed at the end of this Agreement. When requesting a copy of a deposit slip or check, please provide the following Information, as applicable, which is shown on your Account statement: Account name, Account number, check number, dollar amount of the deposit slip or check, and the date shown on the deposit slip or posting date of the check, In most instances, we will mail the copy to you within two (2) Business Days. If you prefer, you may pick up the copy at your Branch or Account. If you request copies of more than Iwo (2) Items per statement period, there will be a fee. IRS REPORTING Tax Identification Number and Interest Reporting Federal tax law requires us to report interest payments we make to you of S10 or more in a calendar year and to Include your Taxpayer Identification Number (TIN) on the report. Interest includes dividends, interest, incentives and bonus payments for purposes of this rule. Therefore, we require you to provide us with your TIN and to certify that it is correct. The TIN is either a Social Security Number (SSN), or an Employer Identification Number (EIN). For most organization or business Accounts other than sole proprietorships, the appropriate TIN is the EIN of the organization or business entity For sole proprietorships, either the SSN or the EIN is appropriate The appropriate TINs for various types of Accounts are: Type of Account TIN Sole Propdelorship SSN or EIN of the owner (as determined by IRS requirements) Corporation EIN of the corporation Partnership or LLP EIN of the partnership or LLP Limited Liability Company (LLC) EIN of the LLC or SSN of the single member (if applicable) 46 Backup Withholding In some circumstances, federal law requires us to withhold and pay to the IRS a percentage of the Interest that Is earned on funds in your Accounts This Is known as backup withholding The percentage withheld will be determined by the rate in effect under IRS regulalons at the time backup withholding begins. We will not have to backup withhold on interest payments when you open your Account if you certify your TIN and certify that (a) you are exempt from backup withholding, {b) you have not been notified toy the IRS that you are subject to backup withholding as a result of a failure to report all interest or dividends or (c) the IRS has notified you that you are no longer subject to backup withholding. We may subsequently be required to begin backup withholding if [tie IRS informs us that you supplied an incorrect TIN or that you underreported your Interest income. Withholding will occur at the time interest is paid. The amount of backup withholding will be reported to you and the IRS. If you are a foreign person (either an Indmidual who Is a nonresident alien or a foreign organization) you must certify your foreign status on the appropriate IRS Form VV-8 (Certificate of Foreign Status). Your foreign status must be re -certifiers on a new IRS Form W-B every three (3) years. If you do not recertify when required, your Account will be put on backup withholding at the expiration of the current Form W-6 on file with the Bank. Backup withholding may also occur at any lime upon any request served to the Bank by the IRS. The percentage withheld will be determined by the rate in effect under IRS regulations at the time backup withholding begins. If you are an exempt payee (receiver of interest payments), you need to supply us with your TIN, certify that your TIN is correct, and cenity your exempt status. Some examples of exempt payees include corporations, organizations exempt Irani tax under Section 501(a) of the Internal Revenue Code, and an individual retirement plan or a custodial Account under Section 403(b)(7) of the Internal Revenue Code. If you do not supply us with the appropriate TIN or Form W-8, we may refuse to open your Account. All Account holders agree 10 be jointly and severally responsible for amounts that the Bank is required to withhold. You also agree that the Bank is permitted to rernove funds from any Account In any of your names for the amount of the backup withholding if it cannot be obtained from the Account to which Interest has been credited. The Bank will inform you if the funds are removed from any Account other than the one to which interest was paid to pay the withholding. Any questions regarding tax withholdings should be directed to the IRS. Notice to All Non -Resident Aliens IRS regulations require that we report to the IRS all deposit interest of $10 or more paid to Accounts belonging to certain nor', resident aliens, even if you provided us with a signed Certification of Foreign Status (Form W-8). Interest includes dividends, interest, incentives and bonus payments_ SAFE AND SELF -SECURED DEPOSIT BOXES Refer to the separate Safe Deposit Box Rental Agreement or the Self -Secured Deposit Box Rental Agreement that Is required to be executed at the lime of rental of any safe deposit box or self - secured deposit box. 47 ACCOUNT SECURITY Your Responsibility It is your responsibility to protect the Account number(s), Card(s) and PIN(s) for your Account(s). Do not discuss, compare, or share information about your Account number(s), Card(s) or PIN(s) with anyone unless you are willing to give them full use of your money. Checks and electronic withdrawals are processed by automated methods, and anyone who obtains your Account number, Card or PIN could use it to withdraw money from your Account, with or without your permission. You agree that if we offer you services appropriate for your Account to help identify and limit fraud or other unauthorized transactions against your Account, such as positive pay or commercially reasonable security procedures, and you reject those services, you will be responsible for any fraudulent or unauthorized transactions which could have been prevented by the services we offered, provided we used ordinary care in the payment of any Item or transaction. Account Numbers Thieves can encode your Account number on a check, which looks and functions like an authorized check and can be used to withdraw money from your Account. Yow Account number can also be used to issue a "Remotely Created Check." If you have truly authorized the Remotely Created Check (to purchase a service or merchandise, for example), it is properly payable But it can be risky to authorize a Remotely Created Check, A swindler could issue a Remotely Created Check in an amount greater than you authorized, or issue additional Remotely Created Checks that you have not authorized. We will not know if the withdrawal is unauthorized or in an amount greater than the amount you have authorized. Payment can be made from your Account even though you did not contact us directly and order the payment. Closing a Compromised Account If you or we suspect that your Account is or may be compromised (this means, for example, third parties may have access to your Account number or there may have been or there is reason to suspect that there may be unauthorized transactions on the Account), we may recommend that you close your Account and open a new Account. If we recommend that you close your Account and you do not do so, we are not liable to you for subsequent losses or damages on the Account due to unauthorized transactions; provided we used ordinary care in the payment of any Item or transaction When you open a new Account, you are responsible for notifying any third parties that need to know your new Account number. Blank Checks You must also take precaution in safeguarding your blank checks. Notify us at once if you think your blank 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 if we failed to use ordinary care which substantially contributes to the loss. Claim of Loss If you claim a credit or refund because of a forgery, alteration, or any other unauthorized withdrawal, you agree to cooperate with us in the investigation of the loss, including giving us an affidavit containing whatever reasonable information we require concerning your Account, the transaction, and the circumstances surrounding the loss. You must notify law enforcement authorities of any criminal act related to the claim of lost, missing, or stolen checks or unauthorized withdrawals. We will have a reasonable period of time to investigate the facts and circumstances surrounding any claim of loss. We will not be liable for special or consequential damages, including loss of profits or opportunity, or for attorneys' fees incurred by you. You agree that you will not waive any rights you have to recover your loss against anyone who is obligated to repay, insure, or otherwise reimburse you for your loss, You will pursue your rights or, at our option, assign them to us so that we may pursue them Our liability will be reduced by the amount you recover or are entitled to recover from these other sources Preventing Fraud and Other Losses You have a duty to protect your Account against abuse: • Watch for out -of -sequence checks and checks made payable to cash or to a bank. Review your transaction activity often for unexpected fluctuations. • Do not keep your PIN with or written on your Debit Card. • Do a thorough background check on Agents, bookkeepers, accountants, or other employees who may be handling any part of your banking and/or who have access to your confidential records. • Assign different individuals the responsibility for opening mail, reconciling bank statements and issuing checks • Require that the owner or principal of the business open bank statements, • Do not assume missing checks are not a problem. Destroy any checks that you do not intend to use. • Notify us immediately if an employee who has been authorized to transact business with the Bank leaves your company. Please note that we reserve the right to a reasonable amount of time to act on your instructions. Refer to "Statements and Your Responsibility to Review" in the ABOUT YOUR ACCOUNT STATEMENTS section of this Agreement for details related to your obligation to review your Account statements. RESOLUTION OF DISPUTES BY ARBITRATION PLEASE READ THIS PROVISION CAREFULLY UNDER THIS PROVISION, YOU WAIVE YOUR RIGHTS TO TRY ANY CLAIM IN COURT BEFORE A JUDGE OR JURY AND TO BRING OR PARTICIPATE IN ANY CLASS OR OTHER REPRESENTATIVE ACTION. Agreement to Arbitrate Disputes If you have a dispute with the Bank, and you are not able to resolve the dispute informally, you and we agree that upon demand by either you or us the dispute will be resolved through the binding arbitration process set forth in this section. Disputes Covered By Arbitration Any dispute relating to or arising out of your Account or this Agreement, including any aspect of any agreement that is governed by this Agreement, will be subject to arbitration. All 48 49 disputes are subject to arbitration, no matter what legal theory they are based on or what remedy (damages, or injunctive or declaratory relief) they seek. Disputes include any unresolved claims concerning any services relating to such Account, including, without limitation, safe deposit box services, wire transfer services, your use of any of the Bank's banking locations or facilities, or to any means you use to access your Account(s). Disputes include not only claims made directly by you, but also made by anyone connected with you or claiming through you, such as a joint Account owner, Account beneficiary, employee, representative, Agent, predecessor or successor, heir, assignee, or trustee in bankruptcy. Disputes include not only claims that relate directly to the Bank, but also its parent, affiliates, successors, assignees, employees, and agents and claims for which we may be directly or indirectly liable, even if we are not properly named at the time the claim is made. Disputes include claims based on any theory of law, contract, statute, regulation, tort (including fraud or any intentional tort), or any other legal or equitable ground, and include claims made as counterclaims, cross -claims, third party claims, interpleaders or otherwise. Disputes include claims made as part of a class action or other representative action, it being expressly understood and agreed to that the arbitration of such claims must proceed on an individual (non -class, non- representative) basis. Disputes also include claims relating to the enforceability or interpretation of this arbitration provision. A party who initiates a proceeding in court may elect arbitration with respect to any dispute advanced in that proceeding by any other party. This arbitration provision shall survive any termination of your Account(s) or relationship with us, Disputes Not Covered By Arbitration Disputes filed by you or by us individually in a small claims court are not subject to arbitration, so long as the disputes remain in such court and advance only an individual claim for relief. Commencing an Arbitration The party initiating arbitration must choose one of the following arbitration forums to administer the arbitration: • The American Arbitration Association ("AAA") under AAA's Commercial Arbitration Rules and Mediation Procedures (Including Procedures for Large, Complex Commercial Disputes), except as modified by this Agreement. AAA's Rules may be obtained from www.adr.org or 1-800-778-7879 (toll - free). • JAMS/Endispute ("JAMS") under JAMS' Comprehensive Arbitration Rules & Procedures or Streamlined Arbitration Rules & Procedures except as modified by this Agreement JAMS' Class Action Procedures shall not apply. JAMS' rules may be obtained from www.jamsadr.com or 1-800-352-5267 (toll free). Arbitration Procedure The arbitration shall be decided by a single neutral arbitrator selected in accordance with AAA's or JAMS' rules, as applicable. The arbitrator will decide the dispute in accordance with the terms of our agreements 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 to you or us under applicable law 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. An award in arbitration shall determine the rights and obligations between the named parties only, and only in respect to the dispute in arbitration and shall not have any bearing on the rights and obligations of any other persons, or on the resolution of any other dispute. 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 same city as the U.S. District Court that is closest to your home address, unless the parties agree in writing to a different location or the arbitrator so orders. 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 Arbltratlon 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 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) Applicable Law You and we agree that you and we are participating in transactions that involve interstate commerce and that this agreement 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, that part will be severed from the remainder of this provision and the remainder of this provision will be enforced. If any of the provisions of this agreement to arbitrate disputes regarding joinder, consolidation, class actions, class arbitrations, general public or private attorney general actions is found to be illegal or unenforceable, that invalid provision shall not be severable and this entire agreement to arbitrate disputes shall be unenforceable. 50 51 ADDITIONAL TERMS AND CONDITIONS Legal Processes If we are served with any legal process (subpoena, restraining order, levy, search warrant, writ of attachment or execution, or similar order) which we believe to be valid and which we believe applies to your Account or relationship with us, even if we are not a party, we may comply with such legal process. We may comply with any legal process without regard to the location served or the manner of service The result is that we may accept legal processes in person, by mail, electronically, or by facsimile transmission at any branch or office, including locations other than the branch or office at which funds, property, or records are held. This means that, unless otherwise expressly prohibited by law, a legal process issued and served in one state may affect an Account held at any of our branches in any other state. Unless prohibited by law, we may charge you a fee for each legal process_ Any fees or expenses we incur in responding to any legal action (including, without limitation, our internal expenses) may be charged to your Account. On subpoenas or other requests for information, unless prohibited by law, if we are not fully reimbursed for research and other handling costs by the party who served the process, we may charge those costs to your Account. If there is an insufficient Available Balance in your Account, you agree to promptly pay us any deficiency You agree to indemnify, defend, and hold us harmless from and against any and all losses, damages, claims, judgments, liability, costs and expenses associated with our compliance with any legal process that we believe to be valid. Accounts opened with trust or fiduciary designations, in particular, may be subject to legal process. Your indemnification obligations under this provision shall survive any termination of our Account relationship with you. Legal processes must be served before our cut-off hour of 10 a-m. local time where the applicable branch is located to be effective against checks posted but not yet finally paid. Right of Set-off and Security Interest We may (without prior notice and when permitted by law) set off the funds in your Account against any due and payable debt you owe us now or in the future, by any of you having the right of withdrawal, to the extent of such person's or legal entity's right to withdraw. The amount of the set-off may be further limited by applicable law If the debt arises from a note, "any due and payable debt" includes the total amount of which we are entitled to demand payment under the terms of the note at the time we set off, including any balance the due date for which we properly accelerate under the note. If the Bank debits funds from a certificate of deposit Account, the funds withdrawn may be subject to an early withdrawal penalty. If the debt is owed to us by a sole proprietor, the Bank may also debit any personal Accounts of the sole proprietor. If the debt is owed to us by a partnership, the Bank may debit any personal Account of any general partner This Right of Set-off does not apply to your Account if prohibited by law. For example, the Right of Set-off does not apply to an Account if: (1) it is an Individual Retirement Account or similar tax - deferred Account, or (2) the debt 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) the debtor's right of withdrawal only arises in a representative capacity. s2 We will not be liable for the dishonor of any Item when the dishonor occurs because we set off a debt against your Account You agree to indemnify, defend and hold us harmless from and against any and all losses, damages, claims, judgments, liability, costs, and expenses arising as a result of our exercise of our Right of Set-off. Your indemnification obligations under this provision shall survive any termination of our Account relationship with you. In addition, you grant the Bank a security interest in all of your deposit Accounts to secure any obligation you owe to the Bank. Pledges and Security Interest to Others You cannot give a security interest or pledge your Account to someone else without first getting the Bank's written consent We are not required to give consent to a security interest or pledge. Referrals to Reporting Agencies and Collection Actions Negative information reflecting on your credit may be submitted to credit reporting agencies if: • We initiate a collection activity against you for indebtedness arising out of a default in your Account relationship. Further, you shall be liable to us for interest, at the legal rate, for any and all indebtedness you incur based on your Account activity from the date the indebtedness is incurred; • You fail to fulfill the terms of your obligations with regard to your deposit Account(s) with the Bank; or • In the Bank's judgment, you misuse your Account Depending on the situation, a negative report may occur even if the Bank does not incur a loss in connection with your Account. Transfer of Ownership Accounts are NOT TRANSFERABLE. Federal regulations exclude from the definition of transfer an Account pledged as collateral for a loan or the passing of title upon death, divorce, marriage, incompetency, or by operation of law. Neither transfer between natural persons when made on the books at Bank of the West nor the addition or subtraction of names of other natural persons is regarded as a transfer. Agents and Powers of Attorney (Sole Proprietorships Only) You may wish to appoint an Agent to conduct transactions on your behalf. (We, however, have no duty or agreement whatsoever to monitor or insure that the acts of the Agent are for your benefit) If you want to give another person access to your Account, please talk to your Branch of Account well in advance of the date by which you wish to allow this access. As a sole proprietor, you may name additional signers to your Account. Those signers are your Agents, The Bank makes available a durable power of attorney form that is limited to a specific deposit Account as identified on the power of attorney form and which will remain valid notwithstanding the incapacity of the principal. If you name an Agent or an attorney -in -fact on a non -Bank form, we may require that the form naming the Agent or attorney -in -fact be reviewed and approved according to our procedures If you have more than one power of attorney or agency appointment on file with the Bank, we will honor each one independently unless you tell us to do otherwise or one power of attorney clearly revokes all prior appointments, For example, unless there is a clear revocation of other powers of attorney, if you have named two (2) different persons as attorneys -in -fact on separate powers of attorney, we will permit each to act in accordance with the information on the power of attorney on which they are named. tf the power of attorney is not "durable," it is revoked when you become incompetent. We may continue to honor the transactions of the Agent until: (1) we have received written notice or have actual knowledge of the termination of the authority or the death of the grantor of the power of attorney, and (2) we have had a reasonable opportunity to act on that notice or knowledge. You agree not to hold us responsible for any loss or damage you may incur as a result of our following instructions given by an Agent acting under a valid power of attorney. We reserve the right to refuse attorneys -in -fact access to certain banking services which you may have, such as the Online and Mobile Service. You agree that we will not be liable to you for any loss or damage you incur as a result of actions by any Agent/attorney-in-fact. Conflicting Demands In case of conflicting certifications or demands, a dispute about ownership of the Account, ownership of any funds in the Account, or any Account holder's authority or capacity to act on the Account, we may refuse to honor any request or order concerning your Account or any check drawn on your Account until we receive: (1) joint instructions regarding the Account, or (2) a court order. At our sole discretion, we may require the signatures of all Account holders and/or all signers on your Account to comply with a specific request or for the withdrawal of funds and/or closing of an Account, In such event, we may also refuse to honor any further transactions and may return checks and other Items. We reserve the right to interplead or deposit with the courts any disputed funds. We will not be liable for any losses incurred or any Items that are dishonored as a consequence of placing a hold on funds in your Account for these reasons. Investigative Freezes As part of our loss prevention program, when we suspect that irregular, unauthorized, or unlawful activities may be involved with your Account, we may "freeze" (or place a hold on) the balance in your Account (and in other Accounts you maintain with us) pending an investigation of such suspected activities- You witl be notified of any Investigative freeze- White your Account is frozen, all withdrawals from the Account are generally blocked- We will not be liable for any losses incurred or any Items that are dishonored as a consequence of placing a hold on funds in your Account for these reasons. Enforcement You agree to be liable to the Bank for any liability, loss or expense that the Bank incurs as a result of any dispute involving your Account or services. You authorize the Bank to deduct any such liability, loss or expense from any of your Accounts without prior notice to you. You agree to indemnify, defend, and hold us harmless from and against any and all losses, damages, claims, judgments, liability, costs, and expenses in connection with or arising out of this Agreement. Your obligations under this provision shall survive any termination of our Account relationship with you Instructions by Facsimile, Emall or Voicemail Unless required by law or we have agreed otherwise in writing, we are not required to act upon instructions you give us via facsimile transmission or leave by voice mail or on a telephone answering machine or make by email. 54 Our Communications with You You agree that we, any of our affiliates, agents, independent contractors or service providers may monitor and record telephone calls regarding your banking services to assure the quality of our service or for other reasons. You also expressly consent that we, any of our affiliates, agents, independent contractors or service providers may use written, electronic or verbal means to contact you. Your consent includes, but is not limited to, contact by manual calling methods, prerecorded or artificial voice messages, text messages, emails and/or automatic telephone dialing systems. You agree that we, any of our affiliates, agents, independent contractors or service providers may contact you by using any email address or any telephone number you provide, including a telephone number for a cellular phone or other wireless device, regardless of whether you incur any charges as a result. Retaining Records We may retain records related to your Account in any form including (but not limited to) paper, film, fiche, and electronic medium If we are not able to produce the original or a copy of your signature card or any other document relating to your Account or service, our records (in whatever form we retain such records) will be deemed conclusive. If there is a discrepancy between your records and our records, our records will be deemed conclusive. CONTACT CENTER Call our Contact Center at: Phone: 1-800-488-2265 1-800-659-5495 (TTY users only) [Exit Code] + 1 + 925-975-3202 (Calling from Outside US) 6:00 AM - Midnight (Central Time) Monday - Friday 7:00 AM - Midnight (Central Time) Saturday, Sunday, and federal holidays Calls may be randomly monitored or recorded to ensure quality service. Write to our Contact Center at: Bank of the West Branch Service Center 13505 California Street N E-BBP-03-GA Omaha, NE 68154 LENDER Member FDIC Form # 030-06511 (Rev 06117) 209575625-020 © 1992, 1993, 1995 Wolters Kluwer Financial Services — Bankers Systems" Form 50W-AIB-13 10!15/2016 Custom TCM-560o.4m,5 BANKTHEWEST BNP PARIBAS AUTHORIZATION AND AGREEMENT FOR CASH MANAGEMENT SERVICES This Authorization and Agreement for Cash Management Services (this "Agreement") applies to Cash Management Services (collectively, the "Services") provided by Bank of the West ("Bank"). This Agreement may be agreed to by one or more business organizations from time to time and references herein to "you" and "your" refer to the undersigned entity and any and all other business organizations added to this Agreement, now or in the future, with the approval of the Bank and the undersigned (each a "Related Entity"). You agree to this Agreement by signing it or an Addendum hereto either in writing or, by prior agreement with Bank, electronically. You may also agree to this Agreement by requesting, accepting or using any of the Services. By agreeing to this Agreement, each of you agrees that all Services are subject to this Agreement and Bank's Cash Management Terms and Conditions, including any separate disclosures, schedules and other documents and materials referenced therein or provided to you in connection with the Services (collectively, "Terms and Conditions"). References to this Agreement and the Terms and Conditions include all additions, deletions and other amendments ("Amendments") thereto from time to time. Amendments may be made as set forth in the Terms and Conditions. You acknowledge receipt of the Terms and Conditions. Bank will maintain records of the Services you have requested either orally or in writing from time to time. Bank's records shall be final and conclusive as to the Services that you have requested and the Bank has agreed to provide to you. Bank's obligation to provide any Service is subject to: (1) Bank's receipt of any required information and documentation from you; (2) Bank's approval of your request for the Service; and (3) completion of any testing or training requirements established by Bank. By agreeing to this Agreement, you represent that the individual who signs this Agreement or an Addendum hereto on your behalf (your "Designee") is an authorized signer on your behalf. You further agree that: (1) your Designee and the Designee of any Related Entity is authorized to access electronically any of your accounts or the accounts of any Related Entity; (2) each such Designee shall be entitled to access and control all such accounts singly without regard to any multiple signer designations or other requirements or restrictions that might otherwise be applicable to a specific account. Such access and control includes but is not limited to, the ability to: (1) control accounts electronically; (2) view or initiate transactions including, without limitation, withdrawals; (3) deposit and transfer money; (4) perform all types of electronic transactions to and from any such accounts; and (5) authorize other users to access such accounts to perform similar functions. You authorize the linking of your accounts to the Services that are provided to any Related Entity. Bank may treat you and all Related Entities as one entity for purposes of the Services. This includes, but is not limited to, authority to link, without restriction, any or all of your deposit or other accounts with the accounts of a Related Entity for Account Analysis, Deposit Concentration, Zero Balance Accounting, and Online Banking Services (and regardless of whether provided by Bank or any of its affiliates). Linked accounts may include, but are not limited to, deposit accounts of any type, credit accounts of any type, investment and brokerage accounts of any type and any and all other accounts that Bank may now or in the future hold for you or on your behalf. Linking of your accounts could subject you to claims involving or arising out of the commingling of funds and you assume all such risks. You acknowledge and agree that, for purposes of Online Banking and other electronic access, the granting of access to accounts by way of a single identification number, log -on and/or password will be considered done at your request and for your convenience. You agree to indemnify, protect, hold harmless and defend Bank from and against any and all claims, demands, damages, expenses, liabilities or costs (including attorneys' fees, professional fees and court costs) of whatever kind or nature whatsoever, in connection with or arising from the linking of accounts contemplated hereby. Bank is not required to obtain consent from any Related Entity for actions Page 1 of 2 Revision Date 07/20/2018 Member FDIC. Equal Housing Lender. Q cel 2018 Bank of the West. Doing busi(ms in South Dakota as Bank of the West California. AUTHORIZATION AND AGREEMENT BANK NEWEST BNP PARIBAS FOR CASH MANAGEMENT SERVICES by you or for any linking of accounts. Bank is not required to give you notice of the acts or omissions of the others. You and each Designee signing this Agreement on your behalf represent and warrant that: (1) your Designee is your officer, owner, or principal or is otherwise authorized to act on your behalf; and (2) you have taken all action required by your organizational or constituent documents to authorize the Designee to execute and deliver this Agreement and any other documents Bank may require with respect to a Service, to provide instructions to Bank, and to designate employees and agents to act in your name and on your behalf regarding the Services and any and all of your accounts. Effective Date: 07/29/2019 AGREED: Tax Identification Number 95-3740431 Business Entity Name City of La Quinta Authorized Signature For Bank Use Only Bank of the West [Office/Unit] Printed Signer's Name Jon McMillen Title City Manager Rank of the 1A/act fr nrh NAnnnammcnt Cnlocl Name: Name: Title: Title: Office/Unit: Date: Date: Signature Signature Page 2 of 2 Revision Date 07/20/2018 Member FDIC Equal Housing Lander. 11�r C, 2018 Bank of the West. Doing business in South Dakota as Bank of the West California. 0 [TANK OUEMEST BNP PARIBAS PUBLIC AGENCY' DEPOSIT ACCOUNT SIGNATURE CARD Date Card Received by Bank: Bank Use Only - Previous Card Date: Select One: Q New Signature Card (New Account) ❑ Superseding Signature Card Agency Information Legal Name: City of La Quinta Name Line 2: Phone Number: 760-777-7000 Website: ww'w•laquintaca.gov Account Information. Account Number: Account Title: Designated Signers Physical Address: 78495 Calle Tampico City, State, Zip: La Quinta, CA 92253 Fax: 760-777-7105 M ai I i ne Address if different Address: Same as Physical City, State, Zip: SIGNATURE NAME (As it appears on Drivers License) TITLE GOVERNMENT ID NUMBER �,.. Jon McMillen City Manager Karla Romero Finance Director q , Linda Evans Steve Sanchez Mayor Mayor Pro-Tem TAX CERTIFICATION: By signing below, 1 authorize the following Taxpayer Identification Number (TIN) to be used for tax reporting purposes. Public Agency Name Tax Identification Number City of La Quinta 95-3740431 Under penalties of perjury, I certify that (1) The number shown on this form is the correct Taxpayer Identification Number for the Public Agency, and (2) The Public Agency is not subject to backup withholding either because: (a) The Public Agency is exempt from backup withholding, or (b) The Public Agency has not been notified by the Internal Revenue Service (IRS) that it is subject to backup withholding as a result of a failure to report all interest or dividends; or (c) the IRS has notified the Public Agency that it is no longer subject to backup withholding; and (3) The Public Agency is a U.S. person (including a U.S. resident alien). Certification Instructions: You must cross out item two C2) above if the Public Agency has been notified by the IRS that it is currently subject to backup withholding because it has failed to report all interest and dividends on its tax return. Name Title sip Date Karla Romero Finance Director 07/29/2019 Public Agency Signature Card Revised 1Public Agency includes Public Agency Associations 12/17/2018 Page 1 ihBANKTHEWEST 13NP PAR113ASr PUBLIC AGENCY' DEPOSIT ACCOUNT SIGNATURE CARD USA -Patriot Act Disclosure To help the government fight the funding of terrorism and money laundering activities, Section 326 of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 requires that all financial institutions obtain, verify and record information that identifies the identity of any person seeking to open an account with the institution. The undersigned acknowledges that Bank of the West's ("Bank's") identity verification procedures require the Bank to request certain information from Public Agency or third parties regarding the Public Agency and, in some situations, on any Designated Signer to the account; and Public Agency agrees to provide Bank with any requested information and consents to Bank making such inquiries of third parties as Bank deems necessary or appropriate as a condition of opening an account with or using any service provided by Bank. AGREEMENT By signing this Signature Card on behalf of the Public Agency, the undersigned Authorized Representative(s): (a) agrees to open one or more deposit accounts with; (b) agrees that all deposit accounts opened pursuant to this Signature Card and any addendum to this Signature Card shall be governed by the Signature Card, as amended by addenda from time to time, any agreement regarding the deposit of public funds (if required by State regulation), Bank's Deposit Account Disclosure, Schedule of Fees and Charges for Business Accounts, any addenda thereto; and any other applicable agreements pertaining to this Public Agency's deposit accounts all of which together shall be called the Terms and Conditions; (c) agrees that Bank may add to, delete from and otherwise amend the Terms and Conditions from time to time, and Public Agency agrees to be bound by any and all such future additions, deletions and amendments to the Terms and conditions; (d) authorizes Bank to verify any of the information given in connection with opening and maintaining the deposit accounts, to obtain credit reports or to make any other inquiries of third parties about the Public Agency. ; (e) represents and warrants as to each Designated Signer (i) the signatures appearing above are genuine or facsimile signatures of the Designated Signers; (ii) each Designated Signer is authorized to conduct transactions on all current and future accounts opened under this Signature Card; (iii) the authority granted to each Designated Signer includes authority to sign checks and other items; to give Bank other instructions to withdraw or transfer funds; to endorse and deposit checks and other items that are payable to or that belong to the Public Agency; and to transact any other business relating to each of this Public Agency's accounts; and (f) agrees that Bank may rely on this authorization for each account opened pursuant to this Signature Card until Bank receives written notice revoking the authorization in a form and at an agreed upon location, and Bank has a reasonable time to act upon it; and (g) represents and warrants that all necessary and appropriate actions or formalities, have been taken to authorize the undersigned Authorized Representatives and the Designated Signers to so act. As a designated depository of this Public Agency, Bank is hereby requested, authorized and directed to honor checks, drafts or other orders for the payment of money drawn in the Public Agency's name, including those payable to the individual order of any Designated Signer, or when bearing or purporting to bear the facsimile signature(s) of any Designated Signer pursuant to the Public Agency's banking resolutions on file with the Bank, and the Bank shall be entitled to honor and to charge the Public Agency for such checks, drafts or other orders, regardless of by whom or by what means the actual or purported facsimile signatures thereon may have been affixed thereto, if such signature or signatures resemble the facsimile specimens duly certified to or filed with the Bank by the Secretary or other official of the Public Agency. This Public Agency adopts the authorization above and certifies that all information on this document is true and correct. The undersigned certifies: • That the persons who signed below are Authorized Representatives and are authorized to enter into this agreement on behalf of the Public Agency. • That any of the undersigned Authorized Representatives, acting alone, may (a) agree to establish additional accounts for the Public Agency under the same signature requirements; and (b) provide changes to this Signature Card. I certify as an Authorized Representative of Public Agency that the foregoing information is complete and accurate. Name Title Signature Date Jon McMillen City Manager e•. 07/29/2019 Karla Romero Finance Director 07/29/2019 Public Agency Signature Card Revised 1Public Agency includes Public Agency Associations 12/17/2018 Page 2 BUSINESS SESSION ITEM NO. 2 City of La Quinta CITY COUNCIL MEETING: June 4, 2019 STAFF REPORT AGENDA TITLE. APPROVE CONTRACT SERVICES AGREEMENT WITH BANK OF THE WEST FOR BANKING AND MERCHANT SERVICES RECOMMENDATII Approve Contract Services Agreement with Bank of the West for Banking and Merchant Services; and authorize the City Manger to execute the Agreement. EXECUTIVE SUMMAR • Cities periodically solicit proposals for banking services to ensure they are receiving cost effective services. Wells Fargo has provided the City with banking services since 1995 and the last time the City solicited banking services proposals was in 2004. • A Request for Proposals (RFP) for Banking and Merchant Services was issued on August 30, 2018 and reissued on December 7, 2018. • A selection committee was established that included two Financial Advisory Commissioners (FAC) and three Finance Staff. • Six banks responded and two banks were selected for second interviews attended by the selection committee and staff that frequently use banking services as part of their daily operations. • The selection committee recommend Bank of the West (Bank) and the FAC unanimously supported this recommendation. FISCAL IMPACT Based on current service levels, the monthly banking fees are estimated to be $1,005 per month and are are anticipated to be covered by a deposit balance earning credit rate of 1.50%. Prices are based on a per unit charges and are set for the five-year term of the contract (Exhibit B of Attachment 2). In addition, the Bank is waiving three months on account analysis fees and the cost of the new account supplies required for implementation. BACKGROUND/ANALYSIS Since 1995 the City has banked with Wells Fargo. The last RFP for banking services was issued in 2004 and Wells Fargo was selected. Since 2007, three contract extensions have been issued. Since December 2016, the City has been on a month to month contract with Wells Fargo. As a matter of best practices 315 and financial due diligence to ensure cost effective and up-to-date services, the City commenced a full review of current banking services. The City initially issued the RFP for Banking and Merchant Services on August 30, 2018 and subsequently reissued the RFP on December 7, 2018. The initial RFP included four responses, which all continued to participate on the reissued RFP. An additional two banks responded to the subsequent RFP for a total of six respondents. • Bank of the West - recommendation • Bank of America • East West Bank • Opus Bank • U.S. Bank - second finalist • Wells Fargo A selection committee was formed that included two Financial Advisory Commission members (Commissioners Batavick and Mills) and three finance staff members (Finance Director, Finance Analyst, and Accountant). The committee interviewed all six banks. Over the years, banking institutions have consolidated, leaving only marginal service level differences. At the same time, City services have expanded and technology and cyber security continue to revolutionize how we conduct business transactions. Given these circumstances, the committee evaluated current services, future needs, and banking trends. In addition, the banks were evaluated on the following criteria: Qualifications and Experience: The organization, affiliations, branch locations, financial experience, qualifications of the relationship management team, independent bank rating agency reports, and compliance and good standing reports. Fees: One-time and recurring fees for all services including management, administrative, and transactional. Including guaranteed pricing for the contract period. Structure: The different parties to the agreement, such as custodian of collateral and merchant service processor, as well as the legal structure of the bank. Start-up cost and effort: Level of staff, legal, and other efforts to establish the banking relationship. Ongoing administration: Level of effort to maintain the trust, ensure that the program is properly functioning, and monitoring performance; in addition to reporting and support provided by the bank. Accessibility and Services: Accessibility to branch locations and services offered by the banking institution. 316 Other considerations: Integration with current financial software, credit card services, online reporting and accessibility, fraud prevention and detection and data security. Based on the RFP response and first interviews, Bank of the West and U.S. Bank were invited for a second interview. The second interview was focused on internal processes, implementation of banking services, merchant credit card services, and the proposed pricing structure. Because banking services affect multiple internal processes, staff from Community Resources, Design and Development, City Manager's office and the City Clerk joined the selection committee for second interviews. Both banks have a robust online platform, provide the services the City is seeking, are qualified to provide government banking services, have competitive start-up costs, would require equal implementation effort, utilize the same merchant services for credit card processing (Elevon), and have appropriate staff for the ongoing administration of services. However, Bank of the West demonstrated a superior implementation team within one time zone (Pacific Standard Time), offered a lower pricing model, and offered a set earnings credit rate of 1.5% for the term of the contract without a collateralization limit on deposits. A Bank of the West branch is in Indian Wells at 74-989 Highway 111. The Bank is headquartered and chartered in San Francisco and is the third-largest commercial bank based in California. On May 15, the FAC unanimously supported the selection and review committee's recommendation to contract for banking and merchant services with Bank of the West. Questions asked during the first and second interviews are provided in Attachment 1. ALILKIVA11VL. The Council may not approve the recommendation and renew the Wells Fargo contract. Prepared by: Karla Romero, Finance Director Approved by: Frank J. Spevacek, City Manager Attachments: 1. Banking and Merchant Service Interview Questions 2. Agreement for Contract Services 317