HomeMy WebLinkAboutTB Minutes 2004-06-24 ' --ATTACHMENT # 8
June 24 , 2004 Town Board Meeting � -� ,
FUNDS TRANSFER AGREEMENT E >
If
t P EMENT made this 17tH day of May 2004 , between TOMPKINS TRUST
ANY, The Commons, P . O . Box 460, Ithaca, New York 14851 (hereinafter the "Bank '.') and Town of Ithaca having a
place of business at 215 N Tioa St Ithaca NY 14850 (hereinafter .the Company" ) . ,
RECITALS
1 . Company has requested that the Bank make available to the Company the service of transferring available funds
from deposit accounts maintained by the Company at the Bank to other accounts maintained at the Bank or elsewhere .
2 . Bank is willing to provide that service on the terms and conditions of this Agreement .
NOW, THEREFORE, in consideration of the mutual terms and covenants hereinafter contained, it is agreed as follows:
1 . DEFINITIONS
"Authorized Representative" means an individual identified on Exhibit A attached hereto and made apart hereof
who has been authorized by resolution of the Company to issue Payment Orders to the Bank . The Company may designate
different or additional individuals as Authorized Representatives, by written notice to the Bank accompanied by a specimen
signature of such individuals and a copy of the Resolution of the Company naming such individuals as Authorized
Representatives . The specimen signature and the Resolution must be certified by the Secretary or other authorized officer
of the Company. The Company represents and warrants to the Bank that the individual(s) named on Exhibit A as an
Authorized Representative is authorized by the Company to give instructions to the Bank for transfers of funds, and matters
ed to transfers of funds with respect to the accounts listed on Exhibit A .
"Beneficiary" means the person or entity designated by the Company to be the ultimate recipient of the transferred
s
"Funds Transfer Business Day" means the part of a day during which the Bank is open for the receipt, processing
and transmittal of Payment Orders and cancellations and amendments of Payment Orders .
"Payment Order" means an instruction to the Bank, transmitted orally; electronically of in writing, to pay, or to
cause another bank to pay, a fixed amount of money to a Beneficiary by transferring funds from one of the Company's
designated accounts at the Bank to the Beneficiary either by paying the Beneficiary directly or by crediting the Beneficiary's
account at the Bank or, at another bank .
"Recurring Number" means the unique Recurring Number assigned by the Bank for use in connection with
Recurring Payment Orders .
"Recurring Payment Order" means a PaNpent Order made on a recurring basis with the instructions as set forth in
Section 11 (A) ( 3 ) remaining constant except for the date and dollar amount .
" Security Procedure" means the procedure designated and agreed to by the Company, and as described in Exhibit B
attached hereto and made a part hereof pursuant to which the Bank shall detennine, for purposes of this Agreement,
whether a Payment Order was sent by an Authorized Representative .
II . EXECUTION OF PAYMENT. ORDERS
onditions Precedent to Execution -- Subject to the provisions of Section III hereof. the Bank. in accordance with . the
S and conditions of this Agreement, will execute a Payment Order if
1 . The Payment Order is sent by a» individual whom the Bank, . based on and in compliance with the Security
Procedure. in good faith deternines to be an Authorized Representative:
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2 . The Pay►nent Order is sent to the Bank at the location and by the method(s) designated by the Bank. from time to
time;
3 . The Payment Order includes the following .information, in addition to any information required by the' Bank fo
Authorized Representative identification and security purposes :
a . the account number of the Company's account from which funds are to be withdrawn
Ib . the amount to be transferred;
c. the name of the bank to which the Bank is to make the transfer and, if different, the name of the bank at
which the Beneficiary's account is located;
d . the name and the account nuinber of the Beneficiary . If the Payment Order describes the Beneficiary
inconsistently by name and account number; payment of the Payment Order transmitted by the Bank to the
Beneficiarv's bank might be made by that bank on the basis of the account number, even if it identifies a.
person different from the named Beneficiary . If that happens, the Company's obligation to pay the amount
of the Payment Order to the Bank is not excused . .
4. The Security Procedure has been complied with and completed .
5 . The Company also acknowledges that all funds transfers it initiates are subject to the law of the United States,
including the United States Treasury Department ' s Office of Foreign Assets Control ("OFAC ') . The Company
represents and warrants throughout the existence of this Agreement that it is not on . the OFAC ' s list of Specially
Designated Nationals and Blocked persons ("SDN List") . The Company further represents and warrants that it
shall not engage in transfers to. from; or on behalf of a party on the SDN List .
6 . The Company is otherwise in full compliance with all other obligations under this Agreement .
7 . With respect to Recurring Pay�inent Orders, the Bank will assign a unique Recurring Number to each Recurri
Payment Or Instructions for a recurring payment order must be specified on the Recurring Trans
j Authorization form signed by two Authorized Representatives . To initiate a Recurring Payment Order, the
Company ' s Authorized Representative must provide the following infonmation in addition to any information
required by the Bank for Authorized Representative identification : ( 1 ) A Recurring Number, (2) the amount to be .
transferred, ( 3 ) valid Test Code as described in Exhibit B . The Bank may also request the name of the receiving
bank : If a payment order does not contain a Recurring Number, the Bank is not obligated to execute the Payment
Order, but if the Bank executes such a Payment Order; the Company shall be obligated to pay the amount of the
order: Except as provided un this Section 11 (A) (6), all other terns and conditions with respect to Paynnent Orders
shall apply to Recurring Payment Orders .
B. i ime of Execution
1 . If none of the exceptions set forth in Section Ill applies, unless the Payment Order specifies a later date, the
Bank shall use its best efforts to execute a Payment Order on the date the Bank receives the Payment Order;
provided. however, that, if the Payment Order is received on a day other than a Funds Transfer Business Day, or if
the Payment Order is received after the Bank's funds transfer cut-off hour , the Bank will make its, best efforts to
execute the Payment Order on the next Funds Transfer Business Day . If the Payment Order specifies a later date
which is a Funds Transfer Business Day. the Bank will use its best .efforts to execute the transfer on such later date,
subject to the provisions of Section III(A)( 1 ) hereof
2 . A Payment Order shall not be deemed to be received by the Bank unless and until the transmission to the Bank is
completed and all the conditions set forth in Section 11 (A) have been fulfilled .
III . REJECTION OF PAYMENT ORDERS
A . The Bank is not obligated to execute, and .shall reject. any Payment Order:
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1 . That specifies a date for transfer more than thirty (30) calendar days after the Bank receives the
Pavnient Order;
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1 That is in aft amount which exceeds the amount of available funds on deposit with the Bank in the
account designated in the Payment Order to be debited;
3 . That does not meet all of the .requirements of Section I1 (A); or
4 . That does not comply with any other term :or condition of this Agreement .
B . The foregoing notwithstanding, the Bank may, in its sole discretion, execute a Payment Order in an amount in excess of
the amount of available fiords on deposit in the designated account . If it does so, the Company shall repay the Bank on
demand the amount of any resulting overdraft in the applicable account and the overdraft fee specified by the Bank .
C . The Bank will notify the Company of any rejection of a Payment Order as soon as practicable. Such notice may be
given telephonically, by facsimile machine transmission, or by such other method as the Bank may reasonably select .
IV. CANCELLATION AND AMENDMENT OF PAYMENT ORDERS
A . The Bank will attempt to cancel or amend a Payment Order previously received from the Company if the cancellation or
amendment request is .made by an individual whom the Bank, based on and in compliance with the Security Procedure, in
good faith, detennines to be an Authorized Representative, and the Security Procedure `has been complied with and
completed .
B . The Bank shall use its best efforts to act on a request for cancellation or amendment it receives prior to execution of the
related Pavinent Order by the Bank . The Bank, however, will not be liable for failure of it, of any intermediary bank (s) or
t eBeneficiarv's bank to act on or to effect such cancellation or amendment.
e Company shall indemnify, defend and hold the Bank harmless from any loss, damages, liability, claims , expenses
sts, including court costs and attorneys' fees, resulting directly or indirectly. from the transmittal of the Company's
lation or amendment request by the Bank, including any court costs and attorneys ' fees arising out of efforts to
enforce this indemnification obligation .
V. FEES AND PAYMENTS
A . The Company shall pay the Bank the fees as published from -time to time by the Bank . Fees may be amended by the
Bank from time to time on prior notice to the Company.
B . The Company Nwill pay to the Bank the amount of each ftmds transfer made by the Bank pursuant to a Payment Order
sent by either an Authorized Representative or by a person determined by the Bank to be an Authorized Representative
based on and in compliance with the Security Procedure . Such payment shall be made on the day the Bank executes the
Pavment Order and at such time as the Bank. at its discretion_ may detennine .
C . The Company authorizes the Bank, without prior notice to or demand on the Company; to debit the Company's
account(s) to make payments as specified in Sections V(A ) and ( B) . If there are insufficient funds in the account designated
in the Payment Order as the account to be debited to repay the amount of the funds transfer, the Bank may, at its option and
without prior notice to the Company, debit another of the Company's accounts . If there are insufficient fiords . in the
Company's account(s) to make such payments, the Company will make the payment to the Bank on demand .
D . In the event a Payment Order is returned, canceled. or amended after it is executed by the Bank and after the Company's
account is debited or the Company otherwise makes the required, payment, the Bank shall credit the Company's designated
Int for any funds received by the Bank as a result of such return, cancellation or amendment . The credit shall be made
the day the Bank receives such funds .
ompany agrees that if it requests a payment order in a currency other than United States dollars , Bank will convert the
cy at the Bank ' s current exchange rate for the specified foreign currency . If any funds are returned to Company in a
currency other than United States dollars , Bank will convert the returned foreign currency into United States dollars at its
current exchange rate for such currency at the time of return . If Bank does not have current exchange rates for the
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particular foreign currency involved, Bank: will use its best efforts to convert the currency. promptly through reasonable ,
commercial and/or banking charu�els, and Company shall pay Bank a reasonable fee for such services . In no event sh
Bank be liable to Company for any losses arising from, currency conversions effected by Bank in good faith wit
reasonable time after receiving funds for conversion .
VI . NOTIFICATION OF ERRORS AND DISCLAIMER OF LIABILITY FOR " SWITCH " ERRORS
A .1 The Bank shall provide the Company with written confirmation of execution of each of the Company's Payment Orders .
That notice is called the " Confirmation Notice" .
B . The Company shall promptly and carefully examine each Confinnation Notice and immediately advise the Bank of any
discrepancy or errors concerning the transactions therein documented . In the event that the Company, fails to advise the
Bank of any discrepancy or error within thirty (30) days following the date of the Confinnation Notice, the Bank shall not
be liable for any loss sustained by the Company by reason of the Company's failure 'to give such . notice or which could have
been averted if the Compan} had given such notice .
C . i IN NO EVENT SHALL THE BANK BE LIABLE FOR DAMAGES TO THE COMPANY CAUSED BY THE
NEGLIGENCE OR MALFUNCTIONS OF THE TELECOMMUNICATIONS COMMON CARRIER OR THE FUNDS
TRANSFER SYSTEM .
VI1I . LIABILITY AND INDEMNIFICATION
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A . If the Company. suffers any loss of interest resulting from the Bank's negligence or tack of good faith in performing the
services under this Agreement, the Bank will reimburse the Company for such loss to the extent provided herein, provided
that the Company has complied with the terns and conditions of this Agreement . Such compensation will be limited to the
interest lost for a period not exceeding thirty (30) days from the date of the Confirmation Notice . Interest shall be
calculated by using a rate equal to the effective federal fiinds rate at the Federal Reserve Bank of New York. for the period
involved . The Bank shall not be liable to the Company under this section if the Payment Order was executed by the Bank
good faith and in compliance with the Security Procedures referred to in Exhibit H. annexed hereto, even if the Payment
Order was not authorized by the Company .
B . The Bank is responsible only for .. erformin the services as expressly provided in this Agreement and shall be liable to
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the! Company only for the Bank's negligence or lack of good faith in performing the services .
C . The Bank shall not be responsible for the Company's acts or omissions or those of any other person and no other person
shall be deemed the Bank's agent .
D . In addition to; and not in limitation of the foregoing, the Bank will be excused from failing to act or from a delay in
acting if the failure or delay is caused by legal constraint, interruption of transmission or communication facilities . including
failure, war. emergency conditions or other circumstances beyond the Bank's reasonable control. In addition , the Bank will
be excused from failing to execute or delay in executing a Payment Order if the execution would result in the Bank
exceeding any limitation upon its intra-day net finds position established pursuant to the guidelines of the.. Federal Reserve
or any agreement between the Bank and other banks or in the Bank's otherwise violating any provision of the applicable
statl or federal regulations .
E . IN NO EVENT SHALL THE BANK BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL OR INDIRECT LOSS
ORI DAMAGE WHICH THE COMPANY MAY INCUR OR SUFFER IN CONNECTION WITH THIS AGREEMENT
ORIHE SERVICE PROVIDED HEREUNDER. INCLUDING WITHOUT LIMITATION LOSS OR DAMAGE FROM
SUBSEQUENT AND WRONGFUL DISHONOR RESULTING FROM THE BANK ' S ACTS PURSUANT TO THIS
AGREEMENT, REGARDLESS OF WHETHER THE LIKELIHOOD OF SUCH LOSS OR DAMAGE WAS KNOWN
BYIUS AND REGARDLESS OF THE BASIS , THEORY OR NATURE OF THE ACTION ON WHICH A CLAIM IS
ASSERTED.
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F . The Bank may .rely on any notice or other writing believed by the Bank in good faith to be genuine and correct and ha
been signed by the person purporting to have signed the notice or .writing . Any such notice or other �� riting shall be deem
to have been signed by that person . without independent verification by the Bank . .
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G . The Company shall indemni & , defend and hold harmless the Bank against any claims ; damages, liability, costs and
ises, including court. costs and attorneys' fees, which the Bank may Incur or sustain and which arise out of the Bank's
rmance in accordance with the terms of this Agreement, including without limitation, any court costs and attorneys'
esulting from the Bank's efforts to enforce this indemnification obligation; including any such damages or liabilities
ing or arising out of an error relating to the amount; place, Beneficiary or timing of any fiuids transfer initiated by a
Lent Order negligently issued by the Company or an employee, representative, officer or agent of the Company.
H . Nothing herein shall be . deemed enforceable to the extent it is prohibited under Section 4A-305 of the New York
Uniform Commercial Code .
VIII . MISCELLANEOUS
A . The rights, duties and responsibilities of the parties to this Agreement with respect to each other shall be governed by
and construed in accordance with Article 4A of the New York State Uniform Commercial Code, as amended from time to
time; provided, however, that in the event of an inconsistency between the terns of this Agreement and the terms of Article
4A, the terms of this Agreement shall govern to the extent. permitted by law.
B . The Company is a � ( corporation, partnership, limited liability
company, limited liability partnership, so a prop rie ship), duly organized and validly existing in good standing under
the laws of New York State; is qualified to do business in the State of New York; has full power and authority to execute
I nd deliver this Agreement and to perform its obligations hereunder; and has duly authorized the execution and delivery of
this Agreement, including the designation of Authorized Representatives .
C . Venue for any disputes between the parties relating to this Agreement or any alleged breach thereof shall be in the
Supreme Court, State of New York I - and for Toii�pkins County and the Company hereby. consents to such jurisdiction and
v e .
otice to the parties shall be deemed given when made telephonically or in writing to :
1 . If to the Bank : Tompkins Trust Company
The Commons
P . O . Box 460
Ithaca, New York . 1485 .1
Attention : Susan Massicci
2 . If to the Company: to the address specified at the end of this Agreement .
The Company. shall confirm all telephonic communications relating to this Agreement by sending a letter or
facsimile transmission to the Bank no later than forty-eight (48 ) hours following such telephonic communication .
E . No provision of this Agreement or any right to remedies which the parties might otherwise have under Article 4A of the
New York State Uniform Commercial Code may be waived, . amended or otherwise modified except pursuant to a writing
duly executed. by each party . Except for changes made in accordance with this Agreement; no deviation, whether intentional
or unintentional , shall constitute a change hereto, and no such deviation shall constitute a waiver. of any right or duty of
either party hereto . No waiver of any breach of a term or condition of this Agreement or any right or remedy contained
herein or otherwise provided for under Article 4A of the New York State Uniforni Commercial Code shall be effective
unless in writing .and no such written waiver shall be deemed a waiver of any future breach , right or remedy .
F . The foregoing notwithstanding, the Bank may from time to time change the terns and conditions contained in this
Agreement, including, without limitation, the Bank's Funds Transfer Business Days or any cut-off hour provided herein .
Such changes will become effective upon receipt of notice by the Company or such later date as may be stated in the Bank's
notice to the Company . Further, the Company may change the account(s) from which Payment Orders may be made, the
orized Representatives, and any other information pertaining to the Company contained in any exhibit to this
ment by notice to the Bank signed by an Authorized Representative: Such change will be effective on the second day
ich the Bank is open after the date it receives notice of the change from the Company or such later date as may be
s in the Company's notice to the Bank .
G . If any provision of this Agreement is held to be ineffective or invalid , the other and remaining terms and conditions
hereof shall be unaffected and remain binding upon the parties .
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H . This Agreement may be terminated by either part- upon giving to the other fifteen ( 15 ) days written notice to such
effect ; provided, ho�yever, that any and all rights and obligations pertanung to or ar' smg out of Payment Orders sent to and
received by the Bank prior to the designated termination date shall continue to be subject to the terms of this Agreement .
I . The terms and conditions of the Company's applicable account agreements are hereby incorporated by reference into this
Agreement . If any inconsistency exists between such agreements and this Agreement, this Agreement shall control to the
extent of the inconsistency .
J . This Agreement is the complete and exclusive statement of the agreement between the Bank and the Company with
respect to the subject matter hereof and supersedes any prior agreement(s) between the Bank and the Company with respect
to that subject matter. There are no promises, agreements , conditions.- undertakings, warranties or representations , either
oral or written, express or implied, between the Bank and the Company other than as . set forth in this Agreement . In the
event any statute; regulation or government policy to which the Bank is subject or which governs or affects the transactions
contemplated by this Agreement would invalidate or modiAr any portion of this Agreement or would cause the Bank to be
required to invalidate or modify any portion of this Agreement, then the Agreement shall be deemed amended to the extent
necessary to comply with such statute; regulation or policy immediately and without any prior notice to the Company, and
the 'Bank shall incur no liability to the Company as a result of its having to comply with such statute or regulation .
K . !The Company. may not assign this Agreement or any rights or duties hereunder to any person without the Bank's prior
written consent, and any attempted assignment shall be void .
WHEREFORE, this Agreement has been signed as of the day and date first above written .
TOMPKINS TRUST COMPANY
SIGNATURE :
NAME :
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TITLE :
Town of Ithaca .
SIGNAT
NAME : Alf z d F . Carvill / Cathy Valentino
TITLE : Town Budget Office / Town Supervisor
TELEPHONE NUMBER : I 273- 1721
Ithaca Town Hall
Address for Notices :
215. N . Tigoa Street
a^ -14250
Attn :
Al Carvill
THE SIGNER OF THIS AGREEMENT MUST BE SPECIFICALLY AUTHORIZED BY A RESOLUTION OF TH
BOARD OF DIRECTORS OF THE ORGANIZATION TO .ENTER INTO THIS AGREEMENT WITH THE BANK . JA
COPY OF THE AUTHORIZING RESOLUTION MUST ACCOMPANY THIS .AGREEMENT .
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EXHIBIT B
Company : Town of Ithaca
SECURITY PROCEDURE
The Company agrees that the authenticity of a Payment Order will be verified as being that of the Company using the
Security Procedure described below:
TEST CODES: Bank will provide the Company with Test Key Algorithms; Value Tables and a Fixed Number specific to
each Company for use in calculating a Test Code for all Payment Orders . The Company agrees Company shall .be
responsible for the security of the Test Key Algorithms, Value Tables and Fixed Number . Company agrees that the Bank
shall have no liability to Company or any one claiming through the Company, any loss resulting, directly or indirectly,
from a breach of security of any Test Key Algorithm, Value Table and/or Fixed Number . Company agrees to keep the Test
Key Algoritluns, Value Tables and Fixed Number confidential and to disclose them only to such individuals who are
required to know them . Compam agrees to establish and maintain procedures reasonably adapted to assure the
confidentiality of the .Test Key Algorithms, Value Tables and Fixed Number. If at any time Company , believes that such
Test Key Algorithms, Value Tables or Fixed Number has become known by some unauthorized person, Company shall
notify Bank immediately by telephone and confirm that notification in writing. Upon receipt of such telephone notice the
Bank shall issue a new Test Key Algorithm and/or Fixed Number in substitution ; and the Bank shall no longer act on
instructions containing the. Test Key Algorithm or Fixed Number identified in such notice . The Bank reserves the right to
change any Test Key Algorithm or Fixed Number at any time upon notice to Company . Company shall notify Bank
i iately by telephone and confirm to Bank in writing if Company terminates the authority of any Authorized
sentative . Upon receipt of the Company ' s telephone notification, the Bank shall no longer act on instructions received
f he person identified in such notice .
The Company agrees that, based upon the typical type. size and frequency of its funds transfers; the foregoing Security
Procedure is comjnercially reasonable and acceptable . The Company acknowledges that it is satisfied that, for its purposes.
the procedure set forth above is commercially reasonable and adequate . The Company shall be bound by any Payment
Order; whether or not authorized, issued in its name and accepted by the Bank in compliance with the Security :Procedure
chosen by the Company . The Bank reserves the right, but shall have no obligation, to require security measures in addition
to those selected by _ the Company if we deem a transfer to be unusual in nature; requiring extraordinary due care . Company
and Bank hereby agree that no other security procedures for error detection Iii its
have been established between them .
discretion. Bank may add or delete any procedures, ( security or otherwise), established under this agreement, from time to
time upon written notice to Compam
TOMPKINS TRUST COMPANY Town of Ithaca
SIGNATURE : � � SIGNAT ,y
NAME : Cathy Valentino NAME : AT red F . Carvill
Town Supervisor Town . Budget Officer
Title : Title :
Date : May 171 2004 Date : May 17 , 2004
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