HomeMy WebLinkAbout11-19-2012-PacketPage 1 of 5
Milton City Hall
City Council Chambers
13000 Deerfield Parkway, Suite E
Milton, GA 30004
Persons needing special accommodations in order to participate in any City
meeting should call 678-242-2500.
CITY OF MILTON, GEORGIA
Joe Lockwood, Mayor
CITY COUNCIL
Karen Thurman
Matt Kunz
Bill Lusk
Burt Hewitt
Joe Longoria
Lance Large
Monday, November 19, 2012 Regular Council Meeting Agenda 6:00 PM
INVOCATION - Pastor Patrick Abent, Inner Quest Church, Alpharetta, GA
CALL TO ORDER
1) ROLL CALL
2) PLEDGE OF ALLEGIANCE (Led by the Mayor)
3) APPROVAL OF MEETING AGENDA (Add or remove items from the agenda)
(Agenda Item No. 12-293)
4) PUBLIC COMMENT
5) CONSENT AGENDA
1. Approval of the November 5, 2012 Regular City Council Minutes.
(Agenda Item No. 12-294)
(Sudie Gordon, City Clerk)
2. Approval of the November 14, 2012 City Council Work Session Minutes.
(Agenda Item No. 12-295)
(Sudie Gordon, City Clerk)
MILTON CITY COUNCIL REGULAR COUNCIL MEETING NOVEMBER 19, 2012
Page 2 of 5
Milton City Hall
City Council Chambers
13000 Deerfield Parkway, Suite E
Milton, GA 30004
Persons needing special accommodations in order to participate in any City
meeting should call 678-242-2500.
3. Approval of a Revised Professional Services Agreement between the City of Milton and
Sun Trust Banks, Inc. for Banking Services.
(Agenda Item No. 12-296)
(Stacey Inglis, Assistant City Manager)
4. Approval of a Contract Renewal between the City of Milton and AT&T for Telephone
Services.
(Agenda Item No. 12-297)
(David Frizzell, IT Manager)
5. Approval of a Construction Services Agreement between the City of Milton and Blount
Construction Company, Inc. for Sidewalk, Curb and Gutter Repair at Various Locations
within the City.
(Agenda Item No. 12-298)
(Carter Lucas, Public Works Director)
6. Approval of the Acquisition of 1,247.47 SF of Right of Way, 5,434.51 SF of Permanent
Construction and Maintenance Easement at 12655 New Providence Road from Panayotis
and Zoe Theofandis for a Total Combined Purchase Price of $18,000.
(Agenda Item No. 12-299)
(Carter Lucas, Public Works Director)
7. Approval of the Acquisition of 2,157.00 SF of Right of Way and 450.00 SF of Permanent
Construction and Maintenance Easement at 12700 New Providence Road from Andrea L.
and James R. Little for a Total Combined Purchase Price of $34,500.
(Agenda Item No. 12-300)
(Carter Lucas, Public Works Director)
8. Approval of the Acquisition of 701.03 SF of Right of Way, 2,175.24 SF of Permanent
Construction and Maintenance Easement at 12600 Arnold Mill Road from Fulton County
for a Total Combined Purchase Price of $4,000.
(Agenda Item No. 12-301)
(Carter Lucas, Public Works Director)
9. Approval of the Acquisition of 15,648.88 SF of Right of Way and 14,060.42 SF of
Permanent Construction and Maintenance Easement at 14575 Providence Road from Ray
Sheppard and Melanie Lynn Brooks for a Total Combined Purchase Price of $40,500.
(Agenda Item No. 12-302)
(Carter Lucas, Public Works Director)
10. Approval of a Professional Services Agreement between the City of Milton and Owens
Environmental Design, LLC for Conceptual Design of Deerfield Park.
(Agenda Item No. 12-303)
(Jim Cregge, Interim Parks & Recreation Director )
MILTON CITY COUNCIL REGULAR COUNCIL MEETING NOVEMBER 19, 2012
Page 3 of 5
Milton City Hall
City Council Chambers
13000 Deerfield Parkway, Suite E
Milton, GA 30004
Persons needing special accommodations in order to participate in any City
meeting should call 678-242-2500.
11. Approval of a Contract between the City of Milton and Families First, Inc. to Provide
Employee Assistance Program (EAP) Services to City Employees and Their Families.
(Agenda Item No. 12-304)
(Sam Trager, Human Resources Director)
6) REPORTS AND PRESENTATIONS
1. Presentation of the Flag of the United States of America to the City of Milton.
(Presented by Congressman Tom Price)
2. Proclamation Recognizing City of Milton 2012 Police Officer of the Year – Keenan
Grey.
(Presented by Mayor Joe Lockwood)
3. Proclamation Recognizing National American Indian Heritage Month.
(Presented by Mayor Joe Lockwood)
4. Proclamation Recognizing Milton-based MDJunior and Shaun Verma.
(Presented by Mayor Joe Lockwood)
5. Proclamation Recognizing Crabapple Crossing Elementary School’s Designation as a
“Blue Ribbon School”.
(Presented by Mayor Joe Lockwood)
7) FIRST PRESENTATION
1. Consideration of an Ordinance Reaffirming and Establishing Chapter 46 of the Milton
Code of Ordinances Governing Solid Waste Collection Services Within the City of
Milton; Providing for the Scope and Nature of the Operation; Providing for the Disposal
of Garbage, Solid Waste and Refuse; Requiring the Execution by Service Providers of a
Non-Exclusive Agreement with the City of Milton; Providing Procedures for the
Handling of Complaints; Providing for an Infrastructure Maintenance Fee; Requiring
Indemnity Insurance; Providing for Revocation and Amendment; Prohibiting Assignment
and Subletting without Consent; Providing for Forfeiture; and for Making Other
Provisions.
(Agenda Item No. 12-305)
(Discussed at Work Session on November 14, 2012)
(Cindy Eade, Sustainability Coordinator)
8) PUBLIC HEARING (None)
9) ZONING AGENDA (None)
MILTON CITY COUNCIL REGULAR COUNCIL MEETING NOVEMBER 19, 2012
Page 4 of 5
Milton City Hall
City Council Chambers
13000 Deerfield Parkway, Suite E
Milton, GA 30004
Persons needing special accommodations in order to participate in any City
meeting should call 678-242-2500.
10) UNFINISHED BUSINESS
1. Consideration of An Ordinance Amending Ordinance No. 09-09-49 Adopting and
Amending Rules and Procedures for the City Council Meetings and Public Hearings for
the City of Milton, Georgia; and for Other Purposes.
(Agenda Item No. 12-284)
(First Presentation at November 5, 2012 Regular Council Meeting)
(Ken Jarrard, City Attorney)
2. Consideration of an Ordinance to Amend Article III, Property Maintenance, Division 4,
General Requirements, Section 10-267 (Exterior Property Requirements) of Chapter 10,
Buildings and Building Regulations of the City of Milton Code.
(Agenda Item No. 12-285)
(First Presentation at November 5, 2012 Regular Council Meeting)
(Chris Lagerbloom, City Manager)
11) NEW BUSINESS
1. Consideration of a Resolution Adopting the Council and Work Session Meeting Dates
(January through December, 2013).
(Agenda Item No. 12-306)
(Sudie Gordon, City Clerk)
2. Consideration of a Resolution to Approve the Agreement between Fulton County,
Georgia and The City of Milton, Georgia to Allow the Use of Community Development
Block Grant Program (CDBG) Program Funds in Year 2012 in the Amount of $53,750 to
Rehabilitate the Two and a Half Acre Former Residential Home/Estate for Use as a
Senior Center Located at 15690 Hopewell Road, Milton, Georgia.
(Agenda Item No. 12-307)
(Michele McIntosh-Ross, Principal Planner)
3. Consideration of a Resolution to Authorize the Mayor and City Council to Approve the
Submission of a Grant Application to the Monarchs Across Georgia for Funding for a
Pollinator Garden.
(Agenda Item No. 12-308)
(Cindy Eade, Sustainability Coordinator)
4. Consideration of a Conflict Waiver Regarding Jarrard & Davis, LLP’s Representation of
the City of Milton in Relation to the First Amendment to an IGA and Sublease
Agreement.
(Agenda Item No. 12-309)
(Ken Jarrard, City Attorney)
MILTON CITY COUNCIL REGULAR COUNCIL MEETING NOVEMBER 19, 2012
Page 5 of 5
Milton City Hall
City Council Chambers
13000 Deerfield Parkway, Suite E
Milton, GA 30004
Persons needing special accommodations in order to participate in any City
meeting should call 678-242-2500.
5. Consideration of a First Amendment to Intergovernmental and Sublease Agreement
Between the City of Milton and the City of Milton Public Buildings and Facilities
Authority.
(Agenda Item No. 12-310)
(Ken Jarrard, City Attorney)
6. Consideration of a Resolution Appointing and Authorizing Special Counsel to Represent
the City to Obtain a Local Option Sales Tax (“L.O.S.T.”) Distribution Certification as
Required Under the Laws of the State of Georgia; To Authorize Said Counsel to Assist in
the Preparation, Presentation and Litigation of the City’s Case; Repeal Inconsistent
Provisions; and for other Purposes.
(Agenda Item No. 12-311)
(Ken Jarrard, City Attorney)
7. Consideration of a Professional Services Agreement Between Brown Pelican Consulting
and Municipalities of Fulton County for Providing Consulting Services to Cities as Such
Services Pertain to Georgia’s L.O.S.T. Distribution.
(Agenda Item No. 12-312)
(Chris Lagerbloom, City Manager)
12) MAYOR AND COUNCIL REPORTS
13) STAFF REPORTS
14) EXECUTIVE SESSION (if needed)
15) ADJOURNMENT
(Agenda Item No. 12-313)
The minutes will be
Provided
electronically
City of Milton
13000 Deerfield Parkway, Suite 100 Milton, Georgia 30004
To: Honorable Mayor and City Council Members
From: Stacey Inglis, Assistant City Manager
Date: Submitted on November 2, 2012 for the November 19, 2012 Council Meeting
Agenda Item: Consideration of a Revised Banking Services Agreement between the City of
Milton and SunTrust Bank
Department Recommendation:
Staff recommends approval of the revised agreement with SunTrust Bank.
Executive Summary:
After the original banking services agreement with SunTrust Bank was approved during the
council meeting on September 5, 2012, it was discovered that the bank failed to include their
terms and conditions with the agreement. Furthermore, their attorney requested additional
changes to the agreement that acknowledged the provisions set forth in their terms and
conditions. Attached is the revised agreement for your consideration.
Fiscal and Funding Impact:
As long as the City maintains a balance of $550,000 in a non-interest bearing account, the
banking services will be provided at no cost and additional idle funds can be placed in interest-
earning investments.
Alternatives:
Since the contract with Bank of North Georgia has expired, the alternatives to not approving this
agreement would be to either start the negotiation process with the next bank of choice or to
reissue the RFP.
Attachments:
Revised banking services agreement
Concurrent Review:
Paul Higbee, Attorney (approved on October 30, 2012 via email)
Chris Lagerbloom, City Manager
BANKING SERVICES AGREEMENT
THIS AGREEMENT (the “Agreement”) is effective as of this_____ day of _____________, 2012, by and between
the CITY OF MILTON, a municipal corporation of the State of Georgia, acting by and through its governing
authority, the Mayor and Council of the City of Milton (“City"), and SUNTRUST BANK, a Georgia Corporation,
("Bank"), collectively referred to as the "Parties".
WITNESSETH THAT:
WHEREAS, the City desires to retain Bank to provide certain services generally described as treasury management
services (the “Work”); and
WHEREAS, the City finds that specialized knowledge, skills, and training are necessary to perform the Work
contemplated under this Agreement; and
WHEREAS, the Bank has represented that it is qualified by training and experience to perform the Work; and
WHEREAS, the Bank desires to perform the Work under the terms and conditions set forth in this Agreement; and
WHEREAS, the public interest will be served by this Agreement;
NOW, THEREFORE, the Parties hereto do mutually agree as follows:
1. SCOPE OF SERVICES AND TERMINATION DATE
1.1. Scope of Services
The Bank agrees to provide the Work and comply with all requirements specified in the RFP, a copy of
which is attached hereto as Exhibit “A” and incorporated herein by reference, and provide the Work as may
additionally be specified in the Bank’s Proposal, attached hereto as Exhibit “B” and incorporated herein by
reference, in accordance with the terms and conditions of this Agreement. The City and the Bank also
agree to the terms of the SunTrust Treasury Management Master Agreement, which includes the documents
referenced therein. The SunTrust Treasury Management Master Agreement is incorporated herein by
reference in accordance with the terms and conditions of this Agreement as Exhibit “G”. The SunTrust
Treasury Management Master Agreement sets forth the specific terms and conditions the City must agree to
in order for the Bank to provide the treasury management services requested in the RFP. To the extent
there is a conflict among the provisions of this Agreement or any of the Exhibits and Exhibit G, Exhibit G
will govern. Further, to the extent this Agreement (i) seeks to impose any additional duties or obligations
on the Bank other than those set forth in Exhibit G, (ii) seeks to remove any of the Bank’s rights or
privileges set forth in Exhibit G, (iii) seeks to remove or lessen any of the City’s responsibilities,
obligations or duties, or (iv) addresses matters not covered in Exhibit G, Exhibit G will govern.
Additionally, the Bank agrees to the following modifications to the following documents included in
Exhibit “B”:
A) Exhibit 12, Safekeeping Agreement:
i) Sec. 11(b): “Client hereby agrees, to the extent if any allowed by law, to indemnify . . . .”
ii) Sec. 17: Delete the sentence that begins: “EACH OF THE PARTIES HERETO
IRREVOCABLY WAIVES ANY AND ALL RIGHT IT MAY HAVE TO A TRIAL BY JURY . .
. .”
B) Exhibit 13, Visa Commercial Card Agreement:
i) Sec. 19(b): Add the following subsection (b)(v): “The Company’s compliance with the Georgia
Open Records Act shall not constitute a violation of this section.”
ii) Sec. 20: Modify the first sentence as follows: “. . . shall be governed by the laws of the State of
Georgia.”
iii) Sec. 23: Delete this Section.
1.2. Schedule, Completion Date, and Term of Agreement
The Agreement term is for a period of five (5) years from the effective date, provided that, in accordance
with O.C.G.A. § 36-60-13, this Agreement shall terminate absolutely and without further obligation on the
part of the City on December 31 each calendar year of the Term, and further, that this Agreement shall
automatically renew on January 1 of each subsequent calendar year absent the City’s provision of written
notice of non-renewal to Bank at least five 30 days prior to the end of the then current calendar year, or
termination to be provided in accordance with Exhibit G =. Title to any supplies, materials, equipment, or
other personal property shall remain in Bank until fully paid for by City. Additional renewals of the
contract, by mutual agreement of both parties, may be made at one-year intervals or any interval that is
advantageous to the City, not to exceed a total of two (2) years, at the option of the City.
2. WORK CHANGES
2.1. The City reserves the right to order changes in the Work to be performed under this Agreement by
altering, adding to, or deducting from the Work. All such changes shall be incorporated in written change
orders executed by the Bank and the City. Such change orders shall specify the changes ordered and any
necessary adjustment of compensation and completion time. If the Parties cannot reach an agreement on
the terms for performing the changed work within a reasonable time to avoid delay or other unfavorable
impacts as determined by the City in its sole discretion, the City shall have the right to determine
reasonable terms and the Bank shall proceed with the changed work.
2.2. Any work added to the scope of this Agreement by a change order shall be executed under all the
applicable conditions of this Agreement. No claim for additional compensation or extension of time shall
be recognized, unless contained in a written change order duly executed on behalf of the City and the
Bank.
2.3. The City Manager has authority to execute without further action of the City of Milton Mayor and
Council, any number of change orders so long as their total effect does not materially alter the terms of
this Agreement or materially increase the total amount to be paid under this Agreement, as set forth in
Section 3.2 below. Any such change orders materially altering the terms of this Agreement or increasing
the total amount to be paid under this Agreement in excess of $25,000 must be approved by resolution of
the City of Milton Mayor and Council.
3. COMPENSATION AND METHOD OF PAYMENT
3.1. City agrees to pay the Bank for the services performed the fees designated in Tab V, Pricing, of Exhibit
“B,” provided that the Bank agrees that for the entire duration of this Agreement, fees for all services
listed in Exhibit “C” to the City’s RFP (Exhibit “A” to this Agreement) will be waived by the Bank so
long as the City maintains with the Bank a non-interest bearing account having a minimum balance of
$550,000.00.
4. COVENANTS OF BANK
4.1. Expertise of Bank
Bank accepts the relationship of trust and confidence established between it and the City, recognizing that
the City’s intention and purpose in entering into this Agreement is to engage an entity with the requisite
capacity, experience, and professional skill and judgment to provide the services in pursuit of the timely
and competent completion of the Work undertaken by Bank under this Agreement.
4.2. Budgetary Limitations
Bank agrees and acknowledges that budgetary limitations are not a justification for breach of sound
principals of Bank’s profession and industry. . Specifically, Bank agrees that, in the event it cannot
perform the Work within the budgetary limitations established without disregarding sound principals of
Bank’s profession and industry, Bank will give written notice immediately to the City.
4.3. City’s Reliance on the Work
The Bank acknowledges and agrees that the City does not undertake to approve or pass upon matters of
expertise of the Bank and that; therefore, the City bears no responsibility for Bank’s services performed
under this Agreement except as set forth in Exhibit G. The Bank acknowledges and agrees that the
acceptance of designs, plans, and specifications by the City is limited to the function of determining
whether there has been compliance with what is required to be produced under this Agreement. The City
will not, and need not, inquire into adequacy, fitness, suitability or correctness of Bank’s performance.
Bank further agrees that no approval of designs, plans, or specifications by any person, body or agency
shall relieve Bank of the responsibility for adequacy, fitness, suitability, and correctness of Bank’s
professional and industry standards or for performing services under this Agreement in accordance with
sound and accepted professional and industry principals.
4.4. Bank’s Reliance of Submissions by the City
Bank must have timely information and input from the City in order to perform the services required under
this Agreement. Bank is entitled to rely upon information provided by the City, but Bank shall be required
to provide immediate written notice to the City if Bank knows that any information provided by the City is
erroneous, inconsistent, or otherwise problematic. The City’s obligations with respect to its duty to
provide notice to Bank of erroneous, inconsistent or problematic information are set forth in Exhibit G.
4.5. Bank’s Representative
Dan B. Farrar, Jr. shall be authorized to act on Bank’s behalf with respect to the Work as Bank’s
designated representative.
4.6. Responsibility of Bank
The Bank covenants and agrees to take and assume responsibility for the Work rendered in connection
with this Agreement in accordance with the terms of Exhibit G. The Bank and the City shall bear losses
and damages relating to the treasury management services in accordance with the terms of Exhibit G and
applicable law.
4.7. Independent Contractor
Bank hereby covenants and declares that it is engaged in an independent business and agrees to perform
the services as an independent contractor and not as the agent or employee of the City. The Bank agrees to
be solely responsible for its own matters relating to the time and place the services are performed; the
instrumentalities, tools, supplies and/or materials necessary to complete the services; hiring of Banks,
agents or employees to complete the services; and the payment of employees, including compliance with
Social Security, withholding and all other regulations governing such matters. The Bank agrees to be
solely responsible for its own acts and those of its subordinates, employees, and subcontractors during the
life of this Agreement. Any provisions of this Agreement that may appear to give the City the right to
direct Bank as to the details of the treasury management services to be performed by Bank or to exercise a
measure of control over such services will be deemed to mean that Bank shall follow the directions of the
City with regard to the results of such services only as such details are set forth in Exhibit G.
4.8. Insurance
4.8.1. Requirements:
The Bank shall have and maintain in full force and effect for the duration of this Agreement,
insurance insuring against claims for injuries to persons or damages to property which may arise
from or in connection with the performance of the Work by the Bank, its agents, representatives,
employees or subcontractors. All policies shall be subject to approval by the City Attorney to form
and content. These requirements are subject to amendment or waiver if so approved in writing by the
City Manager.
4.8.2. Minimum Limits of Insurance:
Bank shall maintain limits no less than:
a. Comprehensive General Liability of $1,000,000 combined single limit per
occurrence for bodily and personal injury, sickness, disease or death, injury to or
destruction of property, including loss of use resulting there from.
b. Comprehensive Automobile Liability (owned, non-owned, hired) of $1,000,000
combined single limit per occurrence for bodily and personal injury, sickness,
disease or death, injury to or destruction of property, including loss of use
resulting therefrom.
c. Professional Liability of $1,000,000 limit for claims arising out of professional
services caused by the Bank's errors, omissions, or negligent acts.
d. Workers' Compensation limits as required by the State of Georgia and
employers Liability limits of $1,000,000 per accident.
4.8.3. Deductibles and Self-Insured Retentions:
Any deductibles or self-insured retentions must be declared to and approved by the City.
The self-insured retention for SunTrust Professional liability policy is $25MM. Other policies listed
(CGL, Auto, and WC) do not have a deductible or self-insured retention.
4.8.4. Other Insurance Provisions:
The policy is to contain, or be endorsed to contain, the following provisions:
a. General Liability and Automobile Liability Coverage.
i. The City, its officials, employees, agents and volunteers are to be covered as
insured as respects: liability arising out of activities performed by or on behalf
of the Bank; products and completed operations of the Bank; premises owned,
leased, or used by the Bank; automobiles owned, leased, hired, or borrowed by
the Bank. The coverage shall contain no special limitations on the scope of
protection afforded to the City, its officials, employees, agents or volunteers.
ii. The Bank's insurance coverage shall be primary noncontributing insurance as
respects to any other insurance or self-insurance available to the City, its
officials, employees, agents or volunteers. Any insurance or self-insurance
maintained by the City, its officials, employees or volunteers shall be excess of
the Bank's insurance and shall not contribute with it.
iii. Any failure to comply with reporting provisions of the policies shall not affect
coverage provided to the City, its officials, employees, agents or volunteers.
iv. Coverage shall state that the Bank's insurance shall apply separately to each
insured against whom claim is made or suit is brought, except with respect to
the limits of the insurer's liability.
v. Coverage shall be provided on a “pay on behalf” basis, with defense costs
payable in addition to policy limits. There shall be no cross liability exclusion.
vi. The insurer agrees to waive all rights of subrogation against the City, its
officials, employees, agents and volunteers for losses arising from work
performed by the Bank for the City.
vii. All endorsements to policies shall be executed by an authorized representative
of the insurer.
b. Workers' Compensation Coverage
The insurer will agree to waive all rights of subrogation against the City, its officials,
employees, agents and volunteers for losses arising from work performed by the Bank
for the City.
c. All Coverages:
i. Each insurance policy required by this clause shall be endorsed to state that
coverage shall not be suspended, voided, canceled, reduced in coverage or in
limits except after thirty (30) days prior written notice by certified mail, return
receipt requested, has been given to the City.
ii. Policies shall have concurrent starting and ending dates.
4.8.5. Acceptability of Insurers:
Insurance is to be placed with insurers with an A.M. Bests' rating of no less than A.
4.8.6. Verification of Coverage:
Bank shall furnish the City with certificates of insurance and endorsements to the policies evidencing
coverage required by this clause prior to the start of work. The certificates of insurance and
endorsements for each insurance policy are to be signed by a person authorized by that insurer to
bind coverage on its behalf. The certificate of insurance and endorsements shall be on a form utilized
by Bank's insurer in its normal course of business and shall be received and approved by the City
prior to execution of this Agreement by the City. The City reserves the right to require complete,
certified copies of all required insurance policies. The Bank shall provide proof that any expiring
coverage has been renewed or replaced.
4.8.7. Subcontractors:
Bank uses a variety of vendors to deliver the treasury management services the City seeks as set forth
in Exhibit A. These vendors are not viewed as “subcontractors” since they deliver their services to
the Bank and are not assigned to the Bank’s individual clients. Bank does not anticipate retaining
vendors solely for the benefit of the City in support of this Agreement. Thus, the provisions in this
Agreement referring to subcontractors shall not be applicable to Bank. Bank shall include all
subcontractors as insured under its policies or shall furnish separate certificates and endorsements for
each subcontractor. All coverage for subcontractors shall be subject to all of the requirements stated
in this Agreement, including but not limited to naming the parties as additional insured.
4.8.8. Claims-Made Policies:
Bank shall extend any claims-made insurance policy for at least six (6) years after termination or
final payment under the Agreement, whichever is later.
4.8.9. City as Additional Insured and Loss Payee:
The City shall be named as an additional insured and loss payee on all policies required by this
Agreement.
4.9. Provisions Regarding Unauthorized Aliens
4.9.1. It is the policy of City that unauthorized aliens shall not be employed to perform work on City
contracts involving the physical performance of services. Therefore, the City shall not enter into a
contract for the physical performance of services within the State of Georgia unless the Bank shall
provide evidence on City-provided forms, attached hereto as Exhibits “C” and “D” (affidavits
regarding compliance with the E-Verify program to be sworn under oath under criminal penalty of
false swearing pursuant to O.C.G.A. § 16-10-71), that it and Bank’s subcontractors have within the
previous twelve (12) month period conducted a verification, under the federal Employment
Eligibility Verification (“EEV” or “E-Verify”) program, of the social security numbers, or other
identifying information now or hereafter accepted by the E-Verify program, of all employees who
will perform work on the City contract to ensure that no unauthorized aliens will be employed. The
Bank hereby verifies that it has, prior to executing this Agreement, executed a notarized affidavit, the
form of which is provided in Exhibit “C”, and submitted such affidavit to City. In the event the Bank
employs or contracts with any subcontractor(s) in connection with the covered contract, the Bank
agrees to secure from such subcontractor(s) attestation of the subcontractor’s compliance with
O.C.G.A. § 13-10-91 and Rule 300-10-1-.02 by the subcontractor’s execution of the subcontractor
affidavit, the form of which is attached hereto as Exhibit “D”, and such subcontractor affidavit shall
become part of the Bank/subcontractor agreement. Further, Bank agrees to provide completed copies
of Exhibit “D” to the City within five (5) business days of receipt from any subcontractor.
4.9.2. The City Manager or his/her designee shall be authorized to conduct an inspection of the Bank’s and
Bank’s subcontractors’ verification process at any time to determine that the verification was correct
and complete. The Bank and Bank’s subcontractors shall retain all documents and records of their
respective verification process for a period of three (3) years following completion of the contract.
4.9.3. The City Manager or his/her designee shall further be authorized to conduct periodic inspections to
ensure that no City Contractor or Contractor’s subcontractors employ unauthorized aliens on City
contracts. By entering into a contract with the City, the Bank and Bank’s subcontractors agree to
cooperate with any such investigation by making their records and personnel available upon
reasonable notice for inspection and questioning. Where the Bank or Bank’s subcontractors are
found to have employed an unauthorized alien, the City Manager or his/her designee may report
same to the Department of Homeland Security. The Bank’s failure to cooperate with the
investigation may be sanctioned by termination of the contract, and the Bank shall be liable for all
damages and delays occasioned by the City thereby.
4.9.4. Bank hereby agrees to comply with the requirements of the federal Immigration Reform and Control
Act of 1986 (IRCA), P.L. 99-603, O.C.G.A. § 13-10-91 and Rule 300-10-1-.02. Bank’s compliance
with the requirements of O.C.G.A. § 13-10-91 and Rule 300-10-1-.02 shall be attested by the
execution of the contractor’s affidavit, attached hereto as Exhibit “C” and incorporated herein by this
reference.
4.9.5. The above requirements shall be in addition to the requirements of State and federal law, and shall be
construed to be in conformity with those laws.
4.9.6. Pursuant to O.C.G.A. § 50-36-1, the City must obtain a SAVE Affidavit and a secure and verifiable
document evidencing the Bank’s legal status in the Country each time that Bank obtains a public
benefit, including any contract, from the City. Bank hereby verifies that it has, prior to executing this
Agreement, executed a SAVE Affidavit (to be sworn under oath under criminal penalty of false
swearing pursuant to O.C.G.A. § 16-10-71), a form of which is attached hereto as Exhibit “E”, and
submitted such affidavit to the City in person, electronically, or by mail. Further, Bank verifies that
it has, prior to executing this Agreement, submitted a secure and verifiable document, evidencing the
Bank’s legal status, to the City either in person or electronically (in compliance with the Uniform
Electronic Transactions Act). Bank verifies that it is in compliance with the Residency Status of an
Applicant for Public Benefit, as required by the Georgia Security and Immigration Compliance Act
(O.C.G.A. § 50-36-1).
4.10. Records, Reports and Audits
4.10.1. Records:
a. Records shall be established and maintained by the Bank in accordance with the Bank’s record
retention policy and applicable law. Except as otherwise authorized, such records shall be
maintained in accordance with such policies and upon termination, made available to the City.
.
b. All costs shall be supported by properly executed payrolls, time records, invoices, contracts, or
vouchers, or other official documentation evidencing in proper detail the nature and propriety
of the charges. All checks, payrolls, invoices, contracts, vouchers, orders or other accounting
documents pertaining in whole or in part to this Agreement shall be clearly identified and
readily accessible.
4.10.2. Reports and Information:
Upon reasonable request, the Bank shall furnish to the City any and all statements, records,
reports, data and information related to matters covered by this Agreement in the form maintained
by the Bank.
4.10.3. Audits and Inspections:
At any time during normal business hours upon reasonable prior request, the City or any duly
authorized representatives shall have access to any books, documents, papers, and records of Bank
that are directly pertinent to this Agreement for the purpose of making audit, examination,
excerpts, and transcripts of same, provided that such access shall not impinge on the Banks’
reasonable expectations of privacy and confidentiality, including for matters in litigation, appeals
or claims.
4.11. Conflicts of Interest
Bank agrees that it shall not engage in any activity or conduct that would result in a violation of the City of
Milton Code of Ethics.
4.12. Confidentiality
Bank acknowledges that it may receive confidential information of the City and that it will protect the
confidentiality of any such confidential information and will require any of its subcontractors, Banks,
and/or staff to likewise protect such confidential information. The Bank agrees that confidential
information it receives or such reports, information, opinions or conclusions that Bank creates under this
Agreement shall not be made available to, or discussed with, any individual or organization, including the
news media, without prior written approval of the City. The Bank shall exercise reasonable precautions to
prevent the unauthorized disclosure and use of City information whether specifically deemed confidential
or not.
4.13. Licenses, Certifications and Permits
The Bank covenants and declares that it has obtained all diplomas, certificates, licenses, permits or the like
required of the Bank by any and all national, state, regional, City, local boards, agencies, commissions,
committees or other regulatory bodies in order to perform the services contracted for under this
Agreement. All work performed by Bank under this Agreement shall be in accordance with applicable
legal requirements and shall meet the standard of quality ordinarily expected of competent professionals.
4.14. Key Personnel
All of the individuals identified in Exhibit “F” are necessary for the successful prosecution of the Work
due to their unique expertise and depth and breadth of experience. The Bank will immediately notify the
City of any material Bank personnel changes related to the City’s treasury management relationship. Bank
recognizes that the composition of this team was instrumental in the City’s decision to award the work to
Bank Any substitutes shall be persons of comparable or superior expertise and experience.
4.15. Authority to Contract
The Bank covenants and declares that it has obtained all necessary approvals of its board of directors,
stockholders, general partners, limited partners or similar authorities to simultaneously execute and bind
Bank to the terms of this Agreement, if applicable.
4.16. Ownership of Work
All reports and other materials prepared or in the process of being prepared for the services to be
performed by the Bank (“materials”) shall be the property of the City and the City shall be entitled to full
access and copies of all such materials. Any such materials remaining in the hands of the Bank or
subcontractor upon completion or termination of the work shall be delivered immediately to the City or
otherwise made available to the City. The Bank assumes all risk of loss, damage or destruction of or to
such materials which such materials are in its possession. Prior to final delivery, if any materials are lost,
damaged or destroyed before final delivery to the City, the Bank shall replace them at its own expense.
5. COVENANTS OF THE CITY
5.1. Right of Entry
The City shall provide for right of entry for Bank to the City of Milton, in order for Bank to complete the
Work.
5.2. City’s Representative
Stacey Inglis shall be authorized to act on the City’s behalf with respect to the Work as the City’s
designated representative.
6. TERMINATION
Termination of the treasury management services will be governed by Exhibit G, except as otherwise
required by O.C.G.A. § 36-60-13.
7. NO PERSONAL LIABILITY
No member, official or employee of the City shall be personally liable to the Bank or any successor in interest
in the event of any default or breach by the City or for any amount which may become due to the Bank or
successor or on any obligation under the terms of this Agreement. Likewise, Bank’s performance of services
under this Agreement shall not subject Bank’s individual employees, officers or directors to any personal
liability. The Parties agree that their sole and exclusive remedy, claim, demand or suit shall be directed and/or
asserted only against Bank or the City, respectively, and not against any employee, officer, director, or elected
or appointed official. The previous provisions in this Section shall apply to the extent required or permitted by
applicable law.
8. ENTIRE AGREEMENT
This Agreement, which includes the Exhibits referenced herein, constitutes the complete agreement between the
Parties and supersedes any and all other agreements, either oral or in writing, between the Parties with respect to
the subject matter of this Agreement. No other agreement, statement or promise relating to the subject matter of
this Agreement not contained in this Agreement shall be valid or binding. This Agreement may be modified or
amended only by a written document signed by representatives of both Parties with appropriate authorization,
however, Exhibit G may be modified or amended in accordance with the procedures stated therein.
9. SUCCESSORS AND ASSIGNS
Subject to the provision of this Agreement regarding assignment, this Agreement shall be binding on the heirs,
executors, administrators, successors and assigns of the respective Parties.
10. APPLICABLE LAW
If any action at law or in equity is brought to enforce or interpret the provisions of this Agreement, the rules,
regulations, statutes and laws of the State of Georgia will control.
11. CAPTIONS AND SEVERABILITY
The caption or head note on articles or sections of this Agreement are intended for convenience and reference
purposes only and in no way define, limit or describe the scope or intent thereof, or of this Agreement nor in
any way affect this Agreement. Should any article(s) or section(s), or any part thereof, later be deemed
unenforceable by a court of competent jurisdiction, the offending portion of the Agreement should be severed
and the remainder of this Agreement shall remain in full force and effect to the extent possible.
12. NOTICES
The Notice provisions in this Section 12 shall apply to the extent not governed by Exhibit G.
12.1. Communications Relating to Daily Activities
All communications relating to the day-to-day activities of the Work shall be exchanged between Stacey
Inglis for the City and Dan Farrar for the Bank.
12.2. Official Notices
All other notices, writings or correspondence as required by this Agreement shall be in writing and shall
be deemed received, and shall be effective, when: (1) personally delivered, or (2) on the third day after the
postmark date when mailed by certified mail, postage prepaid, return receipt requested, or (3) upon actual
delivery when sent via national overnight commercial carrier to the Parties at the addresses given below,
unless a substitute address shall first be furnished to the other Parties by written notice in accordance
herewith:
NOTICE TO THE CITY shall be sent to:
Finance Director
City of Milton
13000 Deerfield Parkway, Suite 107G
Milton, Georgia 30004
NOTICE TO THE BANK shall be sent to:
Dan Farrar
SunTrust Bank
1155 Peachtree St., Suite 900
Atlanta, Georgia 30309
13. WAIVER OF AGREEMENT
The City’s or the Bank’s failure to enforce any provision of this Agreement or the waiver in a particular
instance shall not be construed as a general waiver of any future breach or default.
14. SOVEREIGN IMMUNITY
Nothing contained in this Agreement shall be construed to be a waiver of the City’s sovereign immunity or any
individual’s qualified good faith or official immunities.
15. FORCE MAJEURE
Without limiting and in addition to the provisions of Exhibit G, neither the City nor Bank shall be liable for
their respective non-negligent or non-willful failure to perform or shall be deemed in default with respect to the
failure to perform (or cure a failure to perform) any of their respective duties or obligations under this
Agreement or for any delay in such performance due to: (a) any cause beyond their respective reasonable
control; (b) any act of God; (c) any change in applicable governmental rules or regulations rendering the
performance of any portion of this Agreement legally impossible; (d) earthquake, fire, explosion or flood; (e)
strike or labor dispute, excluding strikes or labor disputes by employees and/or agents of Bank; (f) delay or
failure to act by any governmental or military authority; or (g) any war, hostility, embargo, sabotage, civil
disturbance, riot, insurrection or invasion. In such event, the time for performance shall be extended by an
amount of time equal to the period of delay caused by such acts and all other obligations shall remain intact.
IN WITNESS WHEREOF the City and the Bank have executed this Agreement effective as of the date the Mayor
executes this Agreement on behalf of the City.
[SIGNATURES ON FOLLOWING PAGE]
CITY OF MILTON: SUNTRUST BANK:
By: __________________________ By: ________________________________
Title:_________________________ Title:_______________________________
Name:________________________ Name:______________________________
Date: ________________________ Date: ______________________________
Attest: ______________________________
Name/Title:__________________
SIGNED, SEALED, AND DELIVERED
in the presence of:
[AFFIX CORPORATE SEAL]
_____________________________
Witness
_____________________________
Notary Public
[NOTARY SEAL]
My Commission Expires:
________________________
TREASURY MANAGEMENT
MASTER AGREEMENT
Rev. 11/25/08 Page 1 of 2
CityofMiltonTMMasternonstd (10.24.12)
1. Introduction. SunTrust Bank offers a full range of treasury management
services to our clients. Throughout this master agreement, (a) SunTrust Bank
is referred to as “we,” “us” or “our,” (b) the treasury management services
described in our treasury management terms and conditions referred to below
are referred to as the “services,” (c) this master agreement and the other
documents described below are together referred to as the “agreement,” (d) the
person or entity using one or more of the services is referred to as “you” or
“your” and (e) the individuals identified in any resolution, certificate, delegation
of authority or other document that you have given us as having authority to
enter into or amend the agreement on your behalf are referred to as your
“authorized signers.”
When you sign this master agreement you are agreeing to be bound by
the terms and conditions of the agreement. The agreement is a legally binding
contract that can only be changed as provided in this master agreement.
2. Organization of Agreement. As indicated above, the agreement is made
up of several documents, each of which serves a special purpose. The relevant
documents and their purposes are as follows:
(a) Treasury Management Terms and Conditions. Our treasury
management terms and conditions fall into two categories (i) the general terms
and conditions that govern the use of all services and (ii) the specific terms and
conditions that govern the use of each individual service. The most recent
version of our treasury management terms and conditions is always posted on
the following website: www.suntrust.com/treasuryterms. You may access it at
any time by visiting the site and opening the document with the password we
have given you. We will also give you a printed copy of the current version of
those terms and conditions upon request.
(b) Master Agreement. This master agreement describes the structure
of the agreement and sets forth certain of the basic contractual provisions
relating to your use of the services.
(c) Reference Materials. The reference materials for a service provide
details regarding the functionality of that service, as well as certain formatting
and other technical requirements that you must follow when using that service.
Reference materials may include, without limitation, a user manual, a quick
reference guide, a service demo and/or file formats and specifications. Not
every service has reference materials.
(d) Delegation of Authority. A delegation of authority is optional. By
using one, you are giving other people within your company authority with
respect to the agreement and/or the services.
(e) Service Profiles. A service profile reflects certain instructions you
give us regarding your setup for a particular service, such as the account(s)
linked to that service, the authorized users for that service and the options you
select for that service.
(f) Implementation/Setup Forms. An implementation/setup form is an
internal document that we use to record additional information and/or
instructions you give us with respect to a particular service.
(g) Online Services and Software Materials. We may grant to you a
nonexclusive, nontransferable, limited license or sublicense to use one or more
software programs in connection with certain services. There may be a
separate license agreement (which may be a “shrink wrap” or “click wrap”
agreement and may be with us or a third-party vendor) and/or user manual for
some of those software programs. Those software programs and those other
items are all part of the software materials. There may also be additional online
or “click wrap” terms for the use of the online services. The agreement, online
terms and any applicable separate license agreement and user manual set forth
the terms and conditions relating to your right to use those online services and
software programs as well as important instructions and requirements for their
use.
(h) Rules and Regulations. The rules and regulations for deposit
accounts that you maintain with us set forth certain general provisions relating
to the establishment, maintenance and operation of your deposit accounts.
If there is any inconsistency on a particular issue among the documents
that make up the agreement, the documents will control that particular issue in
the order set forth from top to bottom above.
3. Amendments. We may change or add to the provisions of this master
agreement and any of the general terms and conditions by giving you 30
calendar days’ prior notice. We may change or add to the terms and conditions
for any individual service by giving you 10 calendar days’ prior notice. We may
change the information in the implementation/setup forms without giving you
notice. If you continue to use a service after any of these changes or additions
become effective (or you earlier confirm a service profile for an affected
service), you are bound by those changes or additions. If a change or addition
is required by applicable law, clearing house rules or funds transfer system
rules, or if we believe that the change or addition is necessary for the security or
integrity of the systems that we use in providing any services for you, we may
give you notice of the change or addition promptly after we make it. In that
case, you are bound by the change or addition unless you terminate your use of
the relevant service(s) immediately after you receive our notice. We may
change or add to the terms of the software materials or the rules and
regulations by following the procedures set forth in those documents.
4. New Services. If we agree to provide a new service for you, we will create
one or more service profiles reflecting certain instructions you give us regarding
your setup for that new service and send or otherwise make them available to
you. You may not use that service until you have confirmed (in a manner
acceptable to us) that those service profiles are correct, you have successfully
completed any required testing or training for that service and we have
completed our implementation of your setup for that service. If you attempt to
use a new service without satisfying one or more of these conditions, we may
refuse to provide that service but, if we do provide it, you are bound by the
terms of the agreement relating to that service (including, without limitation, the
general terms and conditions and the terms and conditions for that new
service).
5. Changes to Your Setup. If we agree to change your setup for a service in
response to your instructions and those instructions are of the type reflected on
a service profile, we will send or otherwise make one or more service profiles
reflecting those instructions available to you. That change will not take effect
until you have confirmed (in a manner acceptable to us) that those service
profiles are correct, you have successfully completed any required testing or
training for the change and we have completed our implementation of the
change. In that regard, changes to your setup for a service reflected on a
service profile will be implemented either on an “incremental” basis or a
Exhibit G - SunTrust Treasury Management Master Agreement
and Terms and Conditions
TREASURY MANAGEMENT
MASTER AGREEMENT
Rev. 11/25/08 Page 2 of 2
CityofMiltonTMMasternonstd (10.24.12)
“complete replacement” basis, as reflected and to the extent indicated in the
service profile.
If a change is implemented to your setup for a service on an incremental
basis, that change supplements (as an addition, deletion or modification), but
does not replace, the information in your setup for that service. For example, if
an incremental service profile indicates that it adds a new authorized user for a
service, all existing authorized users for that service continue to be authorized
users unless you specifically request that we delete one or more of them and
that deletion is reflected in a separate service profile that you confirm (in a
manner acceptable to us).
If a change is implemented to your setup for a service on a complete
replacement basis, the information identified in that service profile completely
replaces the information in your setup for that service, to the extent indicated in
that service profile. In that regard, information can be completely replaced
(a) only for the account(s) identified on the service profile, (b) only for the
combination of the account(s) and linked feature(s) of the service identified on
the service profile or (c) for all accounts using the service.
For example, if a service profile indicates that it completely replaces all of
your previous service profiles for a service with respect to the account(s)
identified in that service profile, then only the authorized users identified in that
service profile are authorized to use the service with respect to the identified
account(s). However, none of your service profiles for other accounts using
that service are affected and all authorized users listed on them continue to be
authorized users with respect to those other accounts.
Alternatively, if a service profile indicates that it completely replaces all of
your previous service profiles for the combination of an account and lockbox
identified in that service profile, then only the image delivery option(s) selected
in that service profile will be provided with respect to the combination of the
identified account and lockbox. However, none of your service profiles for other
combinations of accounts and lockboxes for that service are affected and all
image delivery options selected in them will continue to be provided with
respect to those other combinations of accounts and lockboxes
Finally, if a service profile indicates that it completely replaces all of your
previous service profiles for a service, then only the options identified in that
service profile will apply with respect to any of your accounts using that service.
None of your previous service profiles for that service are effective and none of
the options identified on them will apply with respect to any of your accounts
using the service.
We may refuse to accept letters, e-mails or other forms of communication
that instruct us to change your setup for a service if those instructions are of the
type reflected on a service profile. However, you agree that we may (at our
option) accept an e-mail that purports to be from one of your authorized signers
and that instructs us to delete one or more accounts from your setup for a
service without requiring you to confirm a service profile reflecting that
instruction.
6. Electronic Records and Signatures. You consent to the use of electronic
records and signatures with respect to your use of the services. Without limiting
the types of electronic signatures we may accept, you agree that, if we elect (at
our option) to send a service profile to you as an attachment to an e-mail
message, you (a) will be deemed to have confirmed that service profile is
correct if we receive an e-mail message to that effect that purports to be from
one of your authorized signers, (b) adopt that e-mail message as your
electronic signature with the intent to sign that service profile and (c) will be
bound by that service profile to the same extent as if one of your authorized
signers had printed, signed and given it to us.
7. Acknowledgement of Receipt and Agreement to be Bound. By signing
below (and each time you confirm a service profile), you acknowledge that you
have received (or have been given electronic access, including the necessary
password, to) a complete copy of, and that you have read, understand and
agree to be bound by all provisions of our treasury management terms and
conditions (including, without limitation, those that (a) limit our liability to you,
(b) describe your obligations to us, (c) authorize us to rely on
authorization codes, and to the extent permitted by applicable law, (d)
waive the right to a jury trial) in the form and with the content then posted on
the identified website (as we may update them from time to time) with respect to
your use of all services.
Signature. This master agreement has been signed and delivered (which
you agree may be by facsimile or e-mail attachment) on your behalf by the
person whose name is printed below. That person represents and warrants to
us that he or she is one of your authorized signers and that you have taken all
action required by your organizational documents to authorize him or her to sign
and deliver this master agreement (and any other documents we may require
with respect to the services) on your behalf. The agreement completely
replaces any other ones you have given us in the past with respect to the
services, except that any instructions you have given us under any such past
agreements continue to be effective until replaced or deleted in accordance with
the agreement (including, without limitation, through a service profile or an
implementation/setup form).
Client Name: City of Milton
Authorized Signer:
Print Name: Joe Lockwood
Print Title: Mayor
Address:
13000 Deerfield Pkwy, Suite 107G
Milton, GA 30004
E-Mail: stacey.inglis@cityofmiltonga.us
Phone: 678-242-2508
Fax: 678-242-2499
Date:
Exhibit G - SunTrust Treasury Management Master Agreement
and Terms and Conditions
Version 1.12 Page 1 of 63
jcl government entity
Treasury Management Terms and Conditions
UTable of Contents
Click on an item to jump to the top of the page for that section
4TTreasury Management Terms and Conditions4T ............................................................................................................. 1
4TGeneral Terms and Conditions for All Services4T ............................................................................................................ 2
4TAccount Reconciliation Service4T..................................................................................................................................... 9
4TAccounts Receivable Conversion Service4T .................................................................................................................... 9
4TACH Fraud Control Service4T ........................................................................................................................................ 10
4TACH Origination Service4T ............................................................................................................................................. 13
4TCash Concentration Service4T ....................................................................................................................................... 23
4TCash Vault Service4T ..................................................................................................................................................... 24
4TControlled Disbursement Service4T ............................................................................................................................... 26
4TControlled Payment Service4T ....................................................................................................................................... 27
4TElectronic Data Interchange4T ........................................................................................................................................ 28
4TEnterprise Payment Processing Service4T .................................................................................................................... 28
4TImage Cash Letter Service4T ......................................................................................................................................... 31
4TImage Cash Letter Service – Financial Institutions4T .................................................................................................... 33
4TImage Delivery Services4T ............................................................................................................................................. 35
4TOnline Bill Consolidator Service4T ................................................................................................................................. 36
4TOnline Bill Presentment and Payment Service4T ........................................................................................................... 38
4TOnline Check Deposit Service4T .................................................................................................................................... 41
4TOnline Courier Service4T ................................................................................................................................................ 46
4TOnline File Transfer Service4T ....................................................................................................................................... 46
4TOnline Treasury Manager Service4T .............................................................................................................................. 46
4TPositive Pay and Reverse Positive Pay Service4T ......................................................................................................... 49
4TPre-Encoded Deposit Service4T ..................................................................................................................................... 50
4TReturn Items Transmission (“RIT”) Service4T ................................................................................................................ 51
4TScannable Lockbox Service4T ........................................................................................................................................ 52
4TSmart Safe Daily Deposit Posting Service4T .................................................................................................................. 54
4TTax Payment Service4T .................................................................................................................................................. 56
4TUniversal Payment Identification Code Service4T .......................................................................................................... 56
4TWholesale Lockbox Service4T ........................................................................................................................................ 57
4TWire Transfer Service4T ................................................................................................................................................. 58
4TZero Balance Account Service4T .................................................................................................................................... 58
4TAppendix
4TFunds Transfer Agreement4T ......................................................................................................................................... 60
Exhibit G - SunTrust Treasury Management Master Agreement
and Terms and Conditions
TREASURY MANAGEMENT
TERMS AND CONDITIONS
Page 2 of 63
General Terms and Conditions for All Services
1. UIntroductionU. SunTrust Bank offers a full range of treasury
management services to our clients. Throughout these terms and
conditions, (a) SunTrust Bank is referred to as “we,” “us” or “our,”(b) the
treasury management services described in these terms and conditions
are referred to as the “services,” (c) these terms and conditions and the
other documents described below are together referred to as the
“agreement,” (d) the person or entity using one or more of the services
is referred to as “you” or “your” and (e) the individuals identified in any
resolution, certificate, delegation of authority or other document that you
have given us as having authority to enter into or amend the agreement
on your behalf are referred to as your “authorized signers.”
2. UOrganization of AgreementU. As indicated above, the
agreement is made up of several documents, each of which serves a
special purpose. The relevant documents and their purposes are as
follows:
(a) UTreasury Management Terms and ConditionsU. Our
treasury management terms and conditions fall into two categories
(i) the general terms and conditions that govern the use of all services
and (ii) the specific terms and conditions that govern the use of each
individual service. The most recent version of our treasury management
terms and conditions is always posted on the following website:
www.suntrust.com/treasuryterms. You may access it at any time by
visiting the site and opening the document with the password we have
given you. We will also give you a printed copy of the current version of
those terms and conditions upon request.
(b) UMaster AgreementU. The master agreement describes the
structure of the agreement and sets forth certain of the basic contractual
provisions relating to your use of the services.
(c) UReference MaterialsU. The reference materials for a
service provide details regarding the functionality of that service, as well
as certain formatting and other technical requirements that you must
follow when using that service. Reference materials may include,
without limitation, a user manual, a quick reference guide, a service
demo and/or file formats and specifications. Not every service has
reference materials.
(d) UDelegation of AuthorityU. A delegation of authority is
optional. By using one, you are giving other people within your
company authority with respect to the agreement and/or the services.
(e) UService ProfilesU. A service profile reflects certain
instructions you give us regarding your setup for a particular service,
such as the account(s) linked to that service, the authorized users for
that service and the options you select for that service.
(f) UImplementation/Setup FormsU. An implementation/setup
form is an internal document that we use to record additional information
and/or instructions you give us with respect to a particular service.
(g) UOnline Services and Software MaterialsU. We may grant
to you a nonexclusive, nontransferable, limited license or sublicense to
use one or more software programs in connection with certain services.
There may be a separate license agreement (which may be a “shrink
wrap” or “click wrap” agreement and may be with us or a third-party
vendor) and/or user manual for some of those software programs.
Those software programs and those other items are all part of the
software materials. There may also be additional online or “click wrap”
terms for the use of the online services. The agreement, online terms
and any applicable separate license agreement and user manual set
forth the terms and conditions relating to your right to use those online
services and software programs as well as important instructions and
requirements for their use.
(h) URules and RegulationsU. The rules and regulations for
deposit accounts that you maintain with us set forth certain general
provisions relating to the establishment, maintenance and operation of
your deposit accounts.
If there is any inconsistency on a particular issue among the documents
that make up the agreement, the documents will control that particular
issue in the order set forth from top to bottom above.
3. UAmendmentsU. We may change or add to the provisions of the
master agreement and any of these general terms and conditions by
giving you 30 calendar days’ prior notice. We may change or add to the
terms and conditions for any individual service by giving you 10
calendar days’ prior notice. We may change the information in the
implementation/setup forms without giving you notice. If you continue to
use a service after any of these changes or additions become effective
(or you earlier confirm a service profile for an affected service), you are
bound by those changes or additions. If a change or addition is required
by applicable law, clearing house rules or funds transfer system rules, or
if we believe that the change or addition is necessary for the security or
integrity of the systems that we use in providing any services for you, we
may give you notice of the change or addition promptly after we make it.
In that case, you are bound by the change or addition unless you
terminate your use of the relevant service(s) immediately after you
receive our notice. We may change or add to the terms of the software
materials or the rules and regulations by following the procedures set
forth in those documents.
4. UNew ServicesU. If we agree to provide a new service for you,
we will create one or more service profiles reflecting certain instructions
you give us regarding your setup for that new service and send or
otherwise make them available to you. You may not use that service
until you have confirmed (in a manner acceptable to us) that those
service profiles are correct, you have successfully completed any
required testing or training for that service and we have completed our
implementation of your setup for that service. If you attempt to use a
new service without satisfying one or more of these conditions, we may
refuse to provide that service but, if we do provide it, you are bound by
the terms of the agreement relating to that service (including, without
limitation, these general terms and conditions and the terms and
conditions for that new service).
5. UChanges to Your SetupU. If we agree to change your setup for
Exhibit G - SunTrust Treasury Management Master Agreement
and Terms and Conditions
TREASURY MANAGEMENT
TERMS AND CONDITIONS
Page 3 of 63
a service in response to your instructions and those instructions are of
the type reflected on a service profile, we will send or otherwise make
one or more service profiles reflecting those instructions available to
you. That change will not take effect until you have confirmed (in a
manner acceptable to us) that those service profiles are correct, you
have successfully completed any required testing or training for the
change and we have completed our implementation of the change. In
that regard, changes to your setup for a service reflected on a service
profile will be implemented either on an “incremental” basis or a
“complete replacement” basis, as reflected and to the extent indicated in
the service profile.
If a change is implemented to your setup for a service on an incremental
basis, that change supplements (as an addition, deletion or
modification), but does not replace, the information in your setup for that
service. For example, if an incremental service profile indicates that it
adds a new authorized user for a service, all existing authorized users
for that service continue to be authorized users unless you specifically
request that we delete one or more of them and that deletion is reflected
in a separate service profile that you confirm (in a manner acceptable to
us).
If a change is implemented to your setup for a service on a complete
replacement basis, the information identified in that service profile
completely replaces the information in your setup for that service, to the
extent indicated in that service profile. In that regard, information can be
completely replaced (a) only for the account(s) identified on the service
profile, (b) only for the combination of the account(s) and linked
feature(s) of the service identified on the service profile or (c) for all
accounts using the service.
For example, if a service profile indicates that it completely replaces all
of your previous service profiles for a service with respect to the
account(s) identified in that service profile, then only the authorized
users identified in that service profile are authorized to use the service
with respect to the identified account(s). However, none of your service
profiles for other accounts using that service are affected and all
authorized users listed on them continue to be authorized users with
respect to those other accounts.
Alternatively, if a service profile indicates that it completely replaces all
of your previous service profiles for the combination of an account and
lockbox identified in that service profile, then only the image delivery
option(s) selected in that service profile will be provided with respect to
the combination of the identified account and lockbox. However, none
of your service profiles for other combinations of accounts and
lockboxes for that service are affected and all image delivery options
selected in them will continue to be provided with respect to those other
combinations of accounts and lockboxes
Finally, if a service profile indicates that it completely replaces all of your
previous service profiles for a service, then only the options identified in
that service profile will apply with respect to any of your accounts using
that service. None of your previous service profiles for that service are
effective and none of the options identified on them will apply with
respect to any of your accounts using the service.
We may refuse to accept letters, e-mails or other forms of
communication that instruct us to change your setup for a service if
those instructions are of the type reflected on a service profile.
However, you agree that we may (at our option) accept an e-mail that
purports to be from one of your authorized signers and that instructs us
to delete one or more accounts from your setup for a service without
requiring you to confirm a service profile reflecting that instruction.
6. UElectronic Records and SignaturesU. You consent to the use of
electronic records and signatures with respect to your use of the
services. Without limiting the types of electronic signatures we may
accept, you agree that, if we elect (at our option) to send a service
profile to you as an attachment to an e-mail message, you (a) will be
deemed to have confirmed that service profile is correct if we receive an
e-mail message to that effect that purports to be from one of your
authorized signers, (b) adopt that e-mail message as your electronic
signature with the intent to sign that service profile and (c) will be bound
by that service profile to the same extent as if one of your authorized
signers had printed, signed and given it to us.
7. UReceipt and Agreement to be Bound by Governing
DocumentsU. Your use of a service is governed by the master
agreement, these treasury management terms and conditions and the
other documents described in either of them. Each time you confirm a
service profile for a service you (a) acknowledge that you have received
(or have been given electronic access, including the necessary
password, to) a complete copy of, and (b) agree that, except to the
extent your use of a particular service is governed by a prior agreement,
you have read, understand and, agree to be bound by, all provisions of
these treasury management terms and conditions in the form and with
the content then posted on the identified website (as we may update
them from time to time) with respect all services you are then using.
8. UOur Right to Delay or Refuse to Process TransactionsU. We
may delay, refuse to process and/or impose a specific fee with respect
to any item, transaction or instruction with respect to a service which
(a) does not comply with the provisions of the agreement relating to that
particular service, (b) is not complete, correct and current, (c) is greater
in frequency or number than is permitted for the relevant account or
service, (d) is for an amount that is less than the minimum amount
permitted for the relevant account or service, (e) relates to an account
that has been closed or exceeds the amount of available funds in the
relevant account (or would reduce the balance of the available funds in
the relevant account below any required minimum balance), (f) we
believe in good faith is not genuine, conflicts with another instruction or
relates to funds or an account over which there is a dispute or restriction
on withdrawal, (g) we suspect results from a breach in the confidentiality
of a security procedure or authorization code or relates to an account or
service that we suspect is being used for, or is the target of, fraudulent
or illegal activity, or (h) might cause us to violate applicable law or
otherwise expose us to liability. We may also suspend your ability to
use a service if any of the circumstances described in clause (g) or (h)
in the prior sentence occurs.
9. UOverdraftsU. As noted above, we may delay and/or refuse to
process any item, transaction or instruction that exceeds the amount of
available funds in the relevant account (or would reduce the balance of
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and Terms and Conditions
TREASURY MANAGEMENT
TERMS AND CONDITIONS
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the available funds in the relevant account below any required minimum
balance). If we decide in our discretion to process an item, transaction
or instruction that exceeds the amount of available funds in the relevant
account (or would reduce the balance of the available funds in the
relevant account below any required minimum balance), you agree to
reimburse us on demand for (a) the full amount of any overdraft or other
shortfall created by that item, transaction or instruction, (b) all overdraft
fees and charges we may impose from time to time, (c) interest on the
amount of the overdraft or other shortfall at the rate we may impose
from time to time for the day the overdraft or other shortfall was created
and for each following day until the overdraft or other shortfall has been
paid, and (d) all costs and expenses (including, without limitation,
attorney’s fees) we incur in collecting the overdraft or other shortfall, or
any fees, charges or interest relating to it, from you.
10. USecurity Procedures and Authorization CodesU. Some of the
services require you to implement appropriate security procedures that
are outlined in the terms and conditions for those services. The security
procedures are designed to verify the authenticity of instructions that we
receive (including, at our option, confirmation of service profiles by your
authorized signers) and to control access to information and services.
They are not designed to detect errors in the content or transmission of
instructions or information. We may rely on the security procedures to
control access to information and services and to determine whether
any instructions we receive are authentic. You will be bound by all
instructions issued in your name and accepted by us in compliance with
the applicable security procedures, whether or not you or one of your
authorized users actually gave us those instructions. The security
procedures may require the use of PINs, user ID numbers, passwords,
test keys, algorithms or other codes, all of which are referred to as
“authorization codes.” In some cases, we will provide all of the
authorization codes (which, for some services, may be the same for
multiple users). In these cases, we will either give the authorization
codes directly to your users (or, if we have elected to permit your
authorized signers to confirm service profiles by using authorization
codes, then in that case directly to your authorized signers) or we will
give them to the person within your company that you have designated
as your “contact” or security administrator (as defined below). If we
elect to give the authorization codes to your contact, that person is then
responsible for distributing the authorization codes to your users. In
other cases, you will be required to appoint a person within your
company who has the authority to determine who is permitted to use
certain services on your behalf. That individual is referred to as your
“security administrator.” Some services give you the option of
designating more than one contact and/or security administrator. In
these cases, we may give all of the authorization codes to a single
contact or security administrator or (at our option) we may give a portion
of the authorization codes to a particular contact or security
administrator with the rest of the authorization codes going to another
contact or security administrator. If we do not give all of the
authorization codes to a single security administrator, your security
administrator must obtain the other portions of the authorization codes
from the other contact or security administrator who received them.
After obtaining the other portions of the authorization codes, your
security administrator is responsible for creating and providing
authorization codes for and establishing limits on each user’s authority
to initiate transactions, access information and use services on your
behalf. You are completely responsible for controlling access to and
maintaining the confidentiality of the security procedures and
authorization codes and you must promptly report any breach of that
confidentiality to us. You are also completely responsible for the actions
of your contacts, your security administrators, any users to whom we or
your contacts or security administrators have provided authorization
codes and any other person who has obtained access to your
authorization codes. In some cases, a third party vendor may provide
the authorization codes on our behalf. We may send the reference
materials and any notices regarding a service to your contact(s) for that
service as reflected in your service profiles for that service as they are in
effect at the relevant time.
11. UAuthorized SignersU. As indicated above, your authorized
signers are those individuals identified in any resolution, certificate,
delegation of authority or other document that you have given us as
having authority to enter into or amend the agreement on your behalf.
We may act upon any oral or written instructions we receive that we
believe in good faith to have been given by one of your authorized
signers (including instructions sent by facsimile, e-mail or other
electronic method). In addition, if we have elected to permit your
authorized signers to confirm service profiles by using authorization
codes, any person giving us an appropriate authorization code will be
deemed to have authority to confirm service profiles, even if he or she is
not otherwise one of your authorized signers.
12. UAuthorized PersonsU. The individuals who have authority to
give us instructions, access information and use services on your behalf
are those that are reflected in your delegation of authority, if you have
executed one, or any other separate written resolution or other
document relating to the services that you have given us. These
individuals may be referred to as “authorized representatives,’
“authorized users,” “authorized persons” or similar terms in these
general terms and conditions and/or the terms and conditions for
particular services. In addition, if you use a service that involves
authorization codes, any person giving us an appropriate authorization
code will be deemed to have authority to give us instructions, access
information and use services on your behalf, even if he or she is not
otherwise designated as having authority to do so. You may also
authorize third party processors and other agents to give us instructions,
access information and use services on your behalf. We may act upon
any oral or written instructions we receive that we believe in good faith
to have been given by an authorized person (including instructions sent
by facsimile or other electronic method). We are authorized to follow
the instructions of your contact, your security administrator or any
person designated as having authority to act on your behalf (or that
gives us or uses an appropriate authorization code) until we receive
written notice that his or her authority (or authorization code) has been
terminated and we have had a reasonable time to act upon that notice.
At our option, we may require written confirmation of instructions that
are given orally or by facsimile.
13. UOur Online Services and Software MaterialsU.
(a) UUse of Online ServicesU. We offer several online services
(including data transmission services) that allow you to electronically
access information concerning your accounts, give us instructions
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and Terms and Conditions
TREASURY MANAGEMENT
TERMS AND CONDITIONS
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regarding certain transactions with respect to your accounts and use of
the services, and transmit and receive data files to or from us. We can
also use online services to electronically provide you reports,
confirmations, statements and other information regarding your
accounts and use of the services. The instructions that you can give us
through online services vary by service. These online services may
require you to comply with various security procedures, including that
you use authorization codes. You agree to provide us with all
information we request to enable us to activate your ability to use online
services. Some of the online services have specific formatting and
other technical requirements, as we may specify from time to time. You
agree to comply with these requirements when using the online services
and to allow us to test and approve your setup for an online service or
data transmission service before you begin using it. Certain of the
online services may also require you to comply with certain online terms
and/or use software that we license or sublicense to you. Your use of
the online services and any software materials is subject to the online
terms, any accompanying license agreement and the other terms of the
agreement.
(b) UNonexclusive LicenseU. Your rights in the online services
and software materials are limited to a nonexclusive license to use them
solely in connection with your use of the services for your internal
business purposes. You may not transfer or assign any of your rights
with respect to the license, and the license will be automatically revoked
if the agreement is terminated generally or with respect to the particular
service to which the online services or software materials relate. If your
license is revoked, you must return the software materials and any
copies or extracts that you have made to us immediately. You may not
(i) sublicense, sell, lease, distribute or (except with respect to your
employees or agents) provide access to any of the online services or
software materials to any third party, (ii) use the online services or
software materials in a service bureau, time-sharing, outsourcing or
similar arrangement, (iii) use the online services or software materials in
any manner that is not expressly permitted by the agreement,
(iv) modify, decompile, reverse engineer, disassemble or create
derivative works from the online services or software materials or
(v) copy all or part of the online services or software materials, except
as necessary for reasonable back up purposes or (vi) take any actions
or engage in any conduct that violates our rights (or those of our vendor)
with respect to the online services or software materials.
(c) UProprietary RightsU. Except as otherwise set forth in the
online terms, the software materials or the terms and conditions for the
relevant service, we or our vendor retain all ownership and other rights
in the online services and software materials and in any related trade
secrets, copyrights and other intellectual property rights. In addition,
you acknowledge that the online services and software materials
contain valuable, confidential, trade secret information that belongs to
us or to our vendor. You will not disclose or otherwise make that
information available to any person other than your employees or
agents that need to use the online services or software materials in
order for you to use the services, and as to agents, have agreed in
writing to comply with the restrictions on use in the agreement. You will
instruct those employees or agents to keep the online services and
software materials confidential by using the same care and discretion
that you use with respect to your own confidential property and trade
secrets. Your obligations of confidentiality regarding the online services
and software materials will continue after termination of the agreement
and your use of the services for so long as that information remains a
trade secret or is otherwise subject to the protection of applicable law.
(d) UAccounts at other InstitutionsU. Some of our online
services have the ability to access information concerning accounts at
other financial institutions. In order for you to take advantage of this
functionality, you must give written instructions to the other financial
institution(s) to make information regarding those accounts available to
us and the other financial institution(s) must give us written instructions
to make that information available to you through one of our online
services. We are not responsible for any inaccuracies in any
information provided by the other financial institution(s) or for any errors
or delays in any service caused by the other financial institution(s).
(e) UNo Guarantees or ResponsibilityU. We make no
guarantees and have no responsibility with respect to (i) the operation of
any online service or software materials being uninterrupted, error free
or free from program limitations, (ii) defects in the online services or
software materials or any information provided through them, (iii) the
online services, the servers that make them available or the software
materials being free of viruses, disabling devices or other harmful
components, (iv) any information or reports that are transmitted over the
Internet, a wireless network, or sent by e-mail or other electronic method
remaining confidential or being accurate, or (v) any person gaining
unauthorized access to the online services, unless we failed to meet our
standard of care in giving that person an authorization code. If an online
service is not available or you are unable to access an online service,
you agree to use another method (such as written instructions) to
access your accounts or use the services.
14. UYour Equipment, Communications Capabilities and SoftwareU.
Several of the services require you to have certain equipment,
communications capabilities or software. You are responsible for
providing and maintaining (at your cost and expense) any equipment,
communications capabilities or software (other than software we provide
in connection with certain of our services) necessary for any of the
services that you use. It is your responsibility to insure that the
equipment, communications capabilities and software you select are
compatible with those that we use from time to time to provide the
services. We have no responsibility if any equipment, communications
capabilities or software that you use is defective or is not compatible
with ours, even if you have told us what equipment, communications
capabilities and software you intend to use or we have previously
approved its use.
15. UFraud Detection/DeterrenceU. Payment system fraud has
increased dramatically in recent years due to a number of factors. From
time to time we may make certain products and services that are
designed to detect and/or deter payment system fraud available to you.
While no product or service will be completely effective, we believe that
the products and services we offer will reduce the likelihood of certain
types of fraudulent transactions occurring in your accounts. As a result,
you agree that if you fail to implement any of these products or services
that we specifically offer to you, (a) you will be precluded from asserting
any claims against us with respect to any unauthorized, altered,
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and Terms and Conditions
TREASURY MANAGEMENT
TERMS AND CONDITIONS
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counterfeit or other fraudulent transactions occurring in your accounts
that the product or service was designed to detect or deter, (b) we will
not be required to recredit your accounts or otherwise have any liability
for such transactions, and (c) you will be responsible for any loss or
expense (including, without limitation, reasonable attorneys’ fees to the
extent permitted by law) relating in any way to such transactions, so
long as we otherwise satisfied our duty of care with respect to the other
aspects of such transactions.
16. UFees and TaxesU. You will pay us all fees that we disclose to
you for any of the services that you use. We may change or add new
fees for services from time to time. If you continue to use the service
after the change becomes effective, you agree to pay the new fees. In
addition, you agree to pay any taxes (other than taxes based on our net
income) relating to the services that you use and to pay any out-of-
pocket expenses we incur in performing the services for you, including
any communication, access, transmission and data processing charges.
Your accounts are also subject to the fees set forth in the schedule of
fees described in the rules and regulations. We may change those fees
by following the procedures set forth in the rules and regulations. We
may collect any fees, taxes or expenses by debiting your accounts with
us, offsetting those amounts against any earnings credits relating to any
analysis of your deposit accounts, or other applicable method. We
reserve the right to charge interest on any amounts that are not paid
within 30 calendar days of the due date. We will apply all debits, credits
and payments first to unpaid interest and then to fees, taxes and
expenses in the order in which they were due. If you fail to pay any
amount that you owe us under this agreement, we have the option of
canceling or suspending the performance of any further services for
you.
17. UTerm and TerminationU. Unless a shorter period of notice is
provided in the terms and conditions for the relevant service or we
mutually agree to a shorter period of notice, the agreement will continue
in effect until either you or we give 30 calendar days’ prior written notice
of termination to the other party. Any such termination may be for the
entire agreement or for a particular service. In addition, we may
terminate this agreement or any service immediately and without giving
you prior written notice if (a) you violate this agreement, (b) any
representation or warranty you make to us fails to be true and correct in
any material respect, (c) we believe in good faith that there has been a
material adverse change in your financial or business condition, (d) you
make a general assignment for the benefit of creditors or become a
debtor in any bankruptcy or other insolvency or liquidation proceeding,
(e) we determine that changes in applicable laws, regulations, clearing
house rules or funds transfer system rules have made it impracticable
for us to perform under the agreement generally or with respect to a
particular service or (f) any of the circumstances described in clause (g)
or (h) of Section 8 of these general terms and conditions occurs. Even
though the agreement may be terminated entirely or with respect to a
particular service, all provisions relating to your obligations, your
obligations concerning confidential information and limitations on our
liability will continue to apply and will survive termination. You also
continue to be liable for any obligations that you incurred prior to the
termination of the agreement or any service, those that you incur in the
process of terminating the agreement or a particular service and for any
outstanding transactions.
18. UYour Representations and WarrantiesU. Each time you use a
service you represent and warrant to us that (a) you are duly organized,
validly existing and in good standing under the laws of your state of
organization, (b) you have full power and authority to carry on your
business and to enter into and perform your obligations under the
agreement, (c) you have taken all actions necessary to enter into and
perform your obligations under the agreement, (d) all resolutions or
other authorizations you have given to us are true, accurate and
complete in all material respects, (e) all assumed or fictitious names that
you use have been duly registered or filed with the applicable
governmental authorities, (f) you have obtained all necessary consents
or authorizations for you to enter into the agreement, (g) this agreement
is legally binding on you, (h) each person whose name is written or
printed on your delegation of authority, if you have executed one, or any
resolution or other separate written authorization concerning the
agreement or any service has complete authority to bind you in all
transactions relating to the agreement or any service, (i) you are neither
bankrupt nor insolvent nor have you made an assignment for the benefit
of creditors or sought the protection of any bankruptcy, insolvency or
liquidation proceeding, nor do you have the present intention to do so,
(j) you have not commenced any dissolution proceedings and no
governmental authority having jurisdiction over you has served a notice
of its intent to suspend or revoke your operations, and (k) the agreement
does not violate any law, regulation or agreement to which you are a
party. You also make the representations and warranties that are set
forth in the terms and conditions for a service each time you use that
service. You agree to immediately notify us if any representation or
warranty you make to us is no longer true.
19. ULiability and Obligations
(a) UYour Duty of CareU. You must exercise good faith and
ordinary care in performing your obligations under the agreement. In
addition, you must promptly examine each written or electronic
confirmation, report, periodic statement, notice or other document
related to any services and notify us of any error, omission or other
discrepancy reflected in such confirmation, report, periodic statement,
notice or document within 30 days (or such shorter period of time
specified in the terms and conditions for the relevant service) after we
send or make it available to you.
(b) UOur Duty of CareU. In performing the services for you, you
agree that we are not acting as a fiduciary for you or for your benefit and
that our responsibility is limited to acting in good faith and exercising
ordinary care. In that regard, the services have several unique
characteristics that relate to our duty of care. For example, most of the
services involve large volumes of items or transactions that are processed
in a highly automated environment. The procedures set forth in the terms
and conditions and/or the reference materials for each service have been
designed in light of those characteristics to maximize your ability to use
that service in an efficient manner while minimizing your cost and
inconvenience. You agree that the procedures for each service are
commercially reasonable and that we will be deemed to have exercised
ordinary care if we substantially comply with the procedures. You also
agree that clerical errors, mistakes in judgment, and occasional or
unintentional deviations by us from the procedures will not be deemed to
constitute a failure on our part to exercise ordinary care. You also agree
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and Terms and Conditions
TREASURY MANAGEMENT
TERMS AND CONDITIONS
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that we will not be deemed to have failed to exercise ordinary care with
respect to any error, delay or failure to perform that is caused by (i) fire,
natural disaster, strike, civil unrest, terrorism, failure of computer or
communications facilities, (ii) the acts or omissions of any third party
(including any Federal Reserve Bank, clearing house or funds transfer
system) or (iii) any circumstance beyond our reasonable control or for
which we do not have responsibility under the agreement.
(c) UConditions on Our LiabilityU. We will have no liability to
you unless we fail to satisfy our duty of care as described above. If we
fail to satisfy our duty of care, you agree to the maximum extent
permitted by law that we will have no liability for any losses or damages
resulting from that failure unless (i) you have complied with the terms of
the agreement and satisfied your duty of care as described above
(including your duty to discover and report any error, omission or other
discrepancy reflected in any confirmation, report, periodic statement,
notice or document to us within the applicable period), (ii) you take all
reasonable actions to limit your losses or damage, (iii) promptly give us
written proof of your losses or damages and cooperate with us in
investigating the error, omission or other discrepancy and your losses or
damages, and (iv) you bring any claim, action or proceeding against us
with respect to any error, omission or discrepancy within one year after
it occurred (in that regard, if the error, omission or discrepancy is a
repetitive one, all such errors, omissions or discrepancies will be
deemed to have occurred on the date of the first such error, omission or
discrepancy).
(d) ULimits on Our LiabilityU. If we fail to satisfy our duty of
care and you have satisfied the conditions to our liability, both as
described above, then you agree to the maximum extent permitted by
law that our liability to you will be limited to your monetary losses or
damages that are a direct result of that failure, up to the lesser of (i) the
amount of the transaction to which the error, omission or other
discrepancy relates or (ii) the amount of the fees that you have paid us
for the service in question for the six months preceding the month in
which the failure occurred. You also agree to the maximum extent
permitted by law that we will never be liable to you for any indirect,
consequential, special, punitive or exemplary losses or damages
(including, without limitation, lost profits, loss of data, business
interruption or delay, time, savings, property or goodwill), without regard
to the form of your claim or action or whether your claim is in contract,
tort or otherwise, and even if we knew such losses or damages were
possible or likely. To the extent we are required by applicable law to
pay you interest on any amount for which we are liable under this
section, that interest will be determined by using the “federal funds rate”
we paid at the close of business on each day during the period
beginning on the day such failure occurred until we have paid you the
full amount of our liability. If we reimburse you for any losses or
damages, you agree to transfer all of your rights relating to the
transactions in question to us and to assist us in any efforts or legal
actions that we may take to recover those amounts from any third party.
(e) UDisclaimer of WarrantiesU. To the maximum extent
permitted by law, we disclaim all representations and warranties of
any kind, whether express, implied or statutory, with respect to the
services, the software materials, the online services, and any
equipment or software that you use in connection with the services,
including the implied warranties of merchantability, fitness for a
particular purpose, title and non-infringement.
(f) Your ObligationsU. Unless finally determined by a court
or arbitrator having proper jurisdiction to have been caused exclusively
by our gross negligence or intentional misconduct, you agree to be
responsible for any and all liabilities, claims, damages, losses,
demands, fines (including those imposed by any Federal Reserve Bank,
clearing house or funds transfer system), judgments, disputes, costs,
charges and expenses (including litigation expenses, other costs of
investigation or defense and reasonable attorneys’ fees) which relate in
any way to the services, the software materials or the agreement
(including those caused by: (i) your failure to comply with any of the
provisions of the agreement, (ii) the failure of any of the representations
or warranties that you make to us to be true and correct in all respects
at any time or (iii) any instructions you give us).
20. UReservedU.
21. UJury Trial WaiverU. You and we both knowingly,
voluntarily, intentionally and irrevocably waive any right to a trial
by jury with respect to any litigation based on, arising out of or
relating to the agreement, the services, or any other document,
instrument, transaction, course of conduct, course of dealing,
statements (whether verbal or written) or your or our actions. This
provision is a material inducement for us to enter into the
agreement. You also acknowledge that none of our
representatives or agents has represented that we would not seek
to enforce this jury trial waiver in the event of any litigation.
22. UMiscellaneousU.
(a) UNoticesU. Any notices under the agreement may be given
by mail, personal delivery, fax, e-mail or other electronic means. We
may use any address (including e-mail or other electronic addresses) for
you shown in our records that we believe in good faith is valid. Any
notice we send you will be effective when sent or we otherwise make
the notice available to you through an online service. You must send
any notices to us to your treasury management services sales officer.
Any notice you send us is effective when we actually receive it.
(b) USeverabilityU. Any provision of the agreement that is
invalid or unenforceable in any jurisdiction will, as to such jurisdiction
and to the extent of such invalidity or unenforceability, be deemed
replaced with a valid and enforceable provision as similar as possible to
the one replaced and all of the remaining provisions of the agreement
will remain in full force and effect.
(c) UBinding Agreement/BenefitU. The agreement binds and
benefits both you and us and our respective legal representatives,
successors and assigns. The agreement is not for the benefit of any
third party, and no third party has any right against either you or us
under the agreement.
(d) UConfidentiality of the AgreementU. You acknowledge that
the agreement contains valuable, confidential, trade secret information
that belongs to us. You will not disclose or otherwise make that
information available to any person other than your employees or
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and Terms and Conditions
TREASURY MANAGEMENT
TERMS AND CONDITIONS
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agents that need it in order for you to use the services and, as to
agents, have agreed in writing to comply with the restrictions on use in
the agreement. You will instruct those employees or agents to keep the
agreement confidential by using the same care and discretion that you
use with respect to your own confidential property and trade secrets.
Your obligations of confidentiality regarding the agreement will continue
after termination of the agreement and your use of the services for so
long as that information remains a trade secret or is otherwise subject to
the protection of applicable law.
(e) UEntire AgreementU. The agreement is the complete and
exclusive statement of the agreement between you and us with respect
to the services. The agreement completely replaces any other ones you
have given us in the past with respect to the services, except that any
instructions you have given us under any such past agreements
continue to be effective until replaced or deleted in accordance with the
agreement (including, without limitation, through a service profile or an
implementation/setup form).
(f) UHeadings and Certain ReferencesU. The headings used in
the agreement are for reference purposes only and should not be
considered when interpreting the agreement. Whenever the term
“including” is used in the agreement, it means “including, without
limitation”. Whenever the term “days” is used in the agreement, it is a
reference to calendar days unless that reference specifies it is business
days or banking days.
(g) UAssignmentU. You may not assign the agreement or any
of your rights or duties under it to any third party without our prior written
consent. We may assign the agreement to any of our affiliates or
successors or to any other person or entity in connection with a sale of
assets without obtaining your consent. In addition, we may delegate our
duties under the agreement to third party vendors without giving you
notice of, or obtaining your consent to, such delegation.
(h) UApplicable Law and JurisdictionU. The agreement is
governed by and should be interpreted in accordance with the
applicable federal laws and the internal laws of the state in which your
principal account with us is located. You consent to the exclusive
jurisdiction and venue of any court located in that state.
(i) UAttorneys FeesU. The prevailing party in any proceeding
arising out of or relating to the agreement is entitled to recover its
attorney’s fees and costs, in addition to any other remedy it may be
entitled to under applicable law.
(j) UTelephonic CommunicationsU. You consent to the
recording of telephone conversations of your personnel in connection
with the agreement and assume responsibility for obtaining the consent
of, and giving notice to, such personnel. The decision to record any
telephone conversation is solely at our discretion and we will not have
any liability for failing to do so in any particular circumstance.
(k) URemediesU. The rights, powers, remedies and privileges
provided for you in the agreement are your sole and exclusive rights,
powers, remedies and privileges with respect to the services and any
failure by us to perform the services in accordance with the terms of the
agreement. The rights, powers, remedies and privileges provided for us
in the agreement are in addition to any rights, powers, remedies and
privileges with respect to the services or any failure by you to comply
with the terms of the agreement that we have under applicable law or
otherwise, and we may exercise any or all of those rights, powers,
remedies and privileges in any order.
(l) UNo Waiver of RightsU. A failure or delay by us in
exercising any right, power or privilege in respect of the agreement will
not be presumed to operate as a waiver of that or any other right, power
or privilege, and a single or partial exercise by us of any right, power or
privilege will not be presumed to preclude any subsequent or further
exercise by us of that or any other right, power or privilege.
(m) UNo Strict ConstructionU. In the event an ambiguity or
question of intent or interpretation of the agreement arises, the agreement
should be construed as if you and we both drafted the agreement, and no
presumption or burden of proof favoring or disfavoring any party by virtue
of the authorship of any provisions of the agreement will apply.
(n) UFinancial AccommodationU. You acknowledge that the
agreement is an agreement to provide a “financial accommodation” as
that term is defined in the federal bankruptcy laws and, as a result, that
neither you nor any bankruptcy trustee (including you when acting as a
debtor-in-possession) have the ability to assume or reject the
agreement as an executory contract.
(o) UFinancial StatementsU. You agree to provide us with
financial statements and other financial information that we may
reasonably request from time to time.
(p) UOur RecordsU. You agree that our records regarding the
features and accounts that you have asked us to include in our
implementation of your setup for any service (including the
implementation/setup forms for that service) will be deemed correct and
will control in the event of any dispute regarding your setup for that
service. This provision applies even if we have not given you a copy of
those records or you have not signed any documents included in those
records.
(q) UAuthority for Other EntitiesU. If you ask us to include
accounts that belong to another person or entity in our implementation
of your setup for the services, then (a) you represent and warrant to us
that the other person or entity has given you authority to access its
accounts through use of any service to the same extent as if you owned
them, (b) each reference to “you” or “your” in the agreement will be
deemed to be a collective reference to you and each other person or
entity whose accounts are included in our implementation of your setup
for the services, (c) all of the provisions set forth in the agreement will
apply to the accounts as if you owned them, (d) you are deemed to be
using a service with respect to any of the accounts included in our
implementation of your setup for that service, (e) each person who is
authorized to act on your behalf with respect to a service is also
authorized to act on your behalf to the same extent with respect to the
accounts of each other person or entity whose accounts are included in
our implementation of your setup for that service, and (f) you and each
other person or entity whose accounts are included in our
implementation of your setup for the services are jointly and severally
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liable for all confidentiality and other obligations to us under the
agreement. We may require written confirmation from the other person
or entity that it has authorized you to include its accounts in our
implementation of your setup for the services and you agree to notify us
immediately if that authority is revoked or changed. For purposes of this
provision, if an account that belongs to another person or entity is
included in our implementation of your setup of a service, you will be
deemed to have asked us to include that account in our implementation
of your setup of that service even though an exhibit, service profile, or
other form or document (whether now or hereafter in effect) reflects that
other person or entity as the client or customer.
Account Reconciliation Service
1. UDescription of the ARP ServiceU. The SunTrust Account
Reconciliation or “ARP” service allows you to facilitate the reconciliation
of your accounts by exchanging information with us regarding checks
that you have issued against your accounts and/or checks deposited
into your accounts. Details regarding the functionality of the ARP
service and certain formatting and other technical requirements that you
must follow when using the ARP service are provided in the ARP
reference materials as we update them from time to time.
2. UOperation of the ServiceU. You must tell us (in a form that
is acceptable to us) which ARP service you desire for each account that
is included in your setup for the ARP service. Except as otherwise
provided in these ARP terms and conditions or the ARP reference
materials, all check, deposit or other information exchanged between us
in connection with the ARP service will be transmitted electronically in
the format we specify. Check, deposit and other information you send
us must be received by us no later than the cutoff time for such
information reflected in the ARP reference materials. You may select a
daily, monthly, weekly or bi-weekly statement cycle for each account
included in your setup for the ARP service. If you fail to designate a
statement cutoff on our ARP calendar, the statement cycle will be
monthly with a cutoff at the end of the calendar month.
3. USuspension of ServiceU. You agree that you will be in
material breach of these ARP terms and conditions if you repeatedly fail
to meet any of the deadlines described above. In addition to any other
rights we may have under the agreement or applicable law, we may
immediately suspend your use of the ARP service.
Accounts Receivable Conversion Service
6T1. UDescription of the Accounts Receivable Conversion ServiceU.6T
6TAccounts Receivable Conversion6T or “ARC” is a standard National
Automated Clearing House Association or “NACHA” entry class that
provides clients using our Scannable Lockbox, or “SLB,” and ACH
origination services the ability to convert eligible checks deposited
through their lockbox service into automated clearing house entries.
The ARC service allows eligible checks received via the U.S. mail (or
equivalent service, such as an overnight delivery service) for the
payment of goods and services to be converted to single-entry debits
using the ARC entry class code. We will act as your agent or for
purposes of the NACHA rules as your service provider to evaluate
lockbox items for conversion to ARC entries or to process the item
through lockbox check processing. Each lockbox item selected for
conversion will be the source document for the related ARC entry.
Details regarding the ARC service functionality and certain other
technical requirements that you must follow when using the ARC service
are provided in our SLB service reference materials and our ACH
origination service reference materials, as we update either of them
from time to time.
6T2. UFunction of ARC ServiceU6T. We will allow you to use the ARC
service only once you have been set up for our SLB service and have
been qualified and set up for our ACH origination service. You may use
the ARC service with respect to the account(s) and lockbox(es) that are
identified on your ARC service profiles, as they are in effect the relevant
time, if those account(s) are designated account(s) for the ACH
origination service and we have agreed to include those account(s) and
lockbox(es) in your set up for the ARC service. In that regard, if a
service profile for SLB service includes information indicating your
election to use ARC service, that service profile constitutes an ARC
service profile as well. We will act as the originating depository financial
institution or “ODFI” with respect to the ARC entries created as part of
this service. You will be the “originator” for each of those ARC entries.
By confirming an ARC service profile, you agree to be bound by and
comply with the NACHA Operating Rules and Operating Guidelines.
3. UOur ObligationsU. We, acting as your agent, will originate ARC
entries, and the amount, the routing number, the account number, and
the check serial number for each such ARC entry will be in accordance
with the source document. We will retain a reproducible, legible image
of the front and back each source document for two years from the
Settlement Date of the ARC entry and we will provide commercially
reasonable secure storage of the source document image and all
related banking information. The original source document will be
destroyed by us after it has been converted to an ARC entry. The
source document (or any equivalent document) for the ARC entry will
not be presented by us for payment unless the ARC entry is returned by
the receiving depository financial institution or “RDFI”. We will provide
any necessary file totals to authorize release of your ARC entries in lieu
of PAL Totals as described in the ACH origination service terms and
conditions.
4. UYour Representations and WarrantiesU. You will provide a clear
and conspicuous notice to the receiver of ARC entries, prior to the
receipt of each source document that will be used as the basis for the
origination of an ARC entry, that receipt of the receiver’s check will be
deemed to be the receiver’s authorization for a debit entry to the
receiver’s account in accordance with the terms of the source
document. The notice you provide will incorporate the Federal Reserve
System Regulation E safe harbor language or substantially similar
language such as:
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and Terms and Conditions
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TERMS AND CONDITIONS
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“When you provide a check as payment, you authorize us either to use
information from your check to make a one-time electronic fund transfer
from your account or to process the payment as a check transaction.”
You acknowledge that utilization of the ARC service will result in
different obligations and liabilities for you with regard to electronic funds
transfer legal and regulatory environment as compared to the legal and
regulatory environment for accounts receivable paid by check.
5. UARC Return ItemsU. Any ARC entry returned for insufficient
funds will automatically be represented one additional time. Any ARC
entry returned for any other reason will be prepared as a source
document or its equivalent and processed as an item through lockbox
check processing. If the item is returned, then the item will be sent back
to the client in their daily remittance package and their account will be
debited for the funds.
6. UData TransmissionU. All required data transmissions between
you and us will utilize the appropriate online service made available by
us.
7. UTerminationU. The ARC service may be terminated by prior
written notice by either you or us or by termination of the SLB service or
the ACH origination service.
8. UACH Origination Service and Scannable Lockbox ServiceU.
These ARC service terms and conditions are expressly made a part of
the terms and conditions of the ACH origination service terms and
conditions and SLB service terms and conditions. Terms defined in the
terms and conditions for the ACH origination service have the same
meanings when used in these ARC service terms and conditions, and
terms defined in the terms and conditions for the SLB service have the
same meanings when used in these ARC service terms and conditions.
If there is any inconsistency on a particular issue between these ARC
service terms and conditions and the terms and conditions of the ACH
origination service or the SLB service, these ARC service terms and
conditions will control.
ACH Fraud Control Service
1. UDescription of the AFC ServiceU. The SunTrust ACH Fraud
Control or "AFC" service allows you to block the posting of incoming
automated clearing house, or “ACH,” debit and/or credit entries against
your accounts. It also allows you to create exceptions to a block that
will allow selected incoming entries to post.
2. USelection of AFC Service OptionsU. For each account included
in your AFC service setup you may select various service options. Your
selection(s) for each account are reflected in your AFC service profiles
as they are in effect at the relevant time. The options that you may
select are as follows:
(a) UFull Debit/Credit Block OptionU. If you would like to block
the posting of all incoming ACH debit and/or credit entries to an account
(without use of the OAC service option described below), you must
select the full debit/credit block option for that account. In that regard,
you have three options for each account: (i) blocking only incoming
ACH debit entries; (ii) blocking only incoming ACH credit entries; or
(iii) blocking both incoming ACH debit and credit entries. You must
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and Terms and Conditions
TREASURY MANAGEMENT
TERMS AND CONDITIONS
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make a separate election for each account that is included in your setup
for this service with a full debit/credit block option.
(b) UStanding Order OptionU. If you would like to generally
block all incoming ACH debit entries from posting to an account, but
would like to set up one or more authorizations to allow certain incoming
ACH debit entries to post to that account on a repetitive or “standing”
basis, then you may select standing order option for that account and
provide us the required information for the standing entries.
(c) USingle Entry OptionU. If you would like to generally block
all incoming ACH debit entries from posting to an account, but would
like to set up one or more authorizations to allow particular ACH debit
entries to post to that account on a one-time or “single entry” basis, then
you may select the single entry option for that account and provide us
the required information for the single entry entries. Once we have
posted an entry to which a single entry authorization applies, that
authorization expires and we will block any future instance of that entry
unless you establish an authorization to allow that future instance.
(d) UOnline ACH Control Service OptionU. If you would like to
generally block all incoming ACH debit entries and/or credit entries from
posting to an account, but would like to be able to have online access so
that you can perform certain functions, including without limitation, (i)
setting up one or more authorizations to allow particular ACH debit
entries and credit entries to post to that account (either on a standing
basis or single entry basis) and change or delete any authorizations
included in the setup of your AFC service, and (ii) reviewing each ACH
entry received for posting to your account that has been initially blocked
from posting and making a decision to authorize that entry to post to
your account or to return that entry, then you may elect to use our
Online ACH Control, or “OAC” service, for AFC service, the “OAC
service option,” for that account. You may not select the OAC service
option for an account if you currently have in place the full debit/credit
block option described above for that account.
3. UOAC Service Option FunctionalityU.
(a) UAccepting or Declining a Rejected EntryU.
(i) If an ACH entry is received for posting to an
account that you have included in your setup of the OAC service option,
as reflected in your AFC service profiles as they are in effect at the
relevant time, and that entry is the type of entry, either debit or credit,
that you have elected to block for that account, as reflected in our
records at the relevant time, and is not allowed to post under an
authorization you have in effect for that account at that time (whether
the authorization was set up “manually” by confirming a service profile
for the standing order or single entry option or was set up on line
through the OAC service option), that entry will initially reject, each a
“rejected entry.” Each rejected entry will be suspended for a period of
time for you to have an opportunity to review and make a decision to
return that rejected entry to the originator or to allow that rejected entry
to post to your account. Any ACH entry received for posting to an
account included in your setup of the OAC service option that is allowed
under an authorization you have set up and that is in effect for that
account (or is of a type of entry, debit or credit, that you have not
elected to block) will post to your account in accordance with our normal
processing procedures. In determining whether an ACH entry is
allowed under an authorization that is in effect, (as we do for an
authorization set up under a standing order option or single entry option)
we will match the company id and dollar amount of that entry against the
company ids and dollar amounts set up in, and authorized by, your
authorizations and determine if posting that entry is within the number of
times an entry is permitted to post to your account under the applicable
authorization.
(ii) The users you have authorized to use the OAC
service option for the account to which a rejected entry was to post will,
through the OAC service option, be able to view certain details for that
rejected entry and either authorize that rejected entry to post to that
account or return that rejected entry to the originator. A rejected entry
will remain in the list of rejected entries available in the OAC service
option for authorized users to review and make a decision to post to
your account or return that rejected entry, until the earlier of the decision
deadline set forth in the OAC service option reference materials (as we
may update them from time to time) or if a decision on that rejected
entry has been submitted (or an authorization for that rejected entry has
been created), the start of our processing for the next ACH processing
window following the submission of that decision or creation of that
authorization. You can also elect to have us send to one or more users
you set up in the OAC service an email to alert those users when an
ACH entry received for posting to an account has been rejected
Whether or not we fail to send you or you otherwise do not receive an
email notice of a rejected entry, you are responsible for accessing the
OAC service to review the list of rejected entries in the OAC service
option.
(iii) To allow a rejected entry to post to your account,
one of your users (more than one may be required if you are using the
dual verification feature) authorized to use the OAC service option for
that account to which the rejected entry was to post must either submit
through the OAC service option your decision to accept that rejected
entry and allow it to post or you must set up an authorization for that
entry by the decision deadline. We will return that rejected entry to the
originator, if the election to refuse that entry is made through the OAC
service option by your authorized user(s) or you do not take the
necessary action to authorize the rejected entry to post to your account
by the payment decision deadline. You are responsible for having up-
to-date and accurate authorizations in effect for all ACH entries you wish
to have post to the accounts you have set up in the OAC service option,
in case the OAC system is unavailable and we are unable to provide
notice of a rejected entry or accommodate the submission of decisions
in writing and process those decisions by the decision deadline.
(b) UEntry AuthorizationsU. The users you have
authorized for an account included in your setup of the OAC service
option may use the OAC service option to create authorizations that
allow ACH debit or credit entries to post to that account and modify or
delete any authorizations included in your setup for the AFC service for
that account (more than one may be required if you are using the dual
verification feature). You may set up an authorization through the OAC
service option as a single entry authorization or a standing order
authorization by designating the number of times an ACH entry is
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and Terms and Conditions
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TERMS AND CONDITIONS
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permitted to post to your account under that authorization. If you do not
designate for an authorization the number of instances an ACH entry is
permitted to post to your account under that authorization, you are
authorizing an unlimited number of ACH entries permitted under that
authorization to post to your account. Unless you otherwise specify in
the setup of an authorization in the OAC service option, each
authorization will be set up in the OAC service option with an
immediately effective beginning date. If you are using the OAC service
option for an account, and we elect, in our discretion, to allow you to set
up manually an authorization through the standing order or single entry
option, those manually created authorizations will also be included in
your setup of the OAC service option. Each authorization manually
created under a standing order or single entry option you have in effect
for an account at the time you elect to use the OAC service option for
that account will also be included in your setup of the OAC service
option. Each authorization manually created under the standing order
option will be included in your setup of the OAC service option with an
unlimited number of instances, with an immediately effective beginning
date and without an expiration date. Each authorization manually
created under the single entry option will be included in your setup of
the OAC service option with an immediately effective beginning date
and without an expiration date.
(c) UDual VerificationU. If you use the dual verification
feature of the OAC service option, you can require that a separate user
authorized for an account included in your setup of the OAC service
option and with sufficient approval authority (as described in the
reference materials) approve any authorization maintenance request to
create, modify or delete an authorization for that account before that
authorization maintenance request takes effect and approve any
decision to accept or reject a rejected entry for that account before that
decision is submitted. One user authorized for that account and with
sufficient initiation authority must enter the authorization maintenance
request or the decision and another user authorized for that account and
with sufficient approval authority must approve the authorization
maintenance request or decision. The default setup is to require dual
verification for any authorization maintenance request or decision for a
rejected entry. One user is able to submit an authorization maintenance
request or a decision to allow a rejected entry to post to your account or
be returned, if you have elected not to use the dual verification
procedures at all or if you have entitled that user so the dual verification
procedures are not required for that user for decisions or authorization
maintenance requests under a certain dollar threshold. We recommend
that you use dual verification at all times, and you are responsible for
any ACH entry paid or returned in accordance with any decision or
authorization maintenance request submitted without use of dual
verification.
(d) UAlertsU. You may elect to have us send to certain
users included in your setup of the OAC service one or more of the
types of alerts available in the OAC service option, including alerts to
notify you when an ACH entry received for posting to an account
included in your setup of the OAC service option was rejected, to notify
you when an ACH entry posted to an account included in your setup of
the OAC service option because it matched an authorization, to notify
you when a decision for a rejected entry or a maintenance request to set
up, modify or delete an authorization needs to be approved, and to
notify you once a decision has been made or modified or an
authorization set up, modified or deleted. Your security administrator
will designate which users included in your setup for the OAC service
are to be sent an alert and which alerts each user is to be sent. Alerts
will be sent to each user at the email address designated in the OAC
setup for that user. You agree that we will not have any liability if we fail
to send to any one of those designated users or any one of those
designated users does not otherwise receive one or more alerts.
(e) UDesignation of Security Administrator(s)U. In order to
use the OAC service option (unless you are currently using the OAC
service for ACH origination service), you must initially designate one
person as one of your security administrators for the OAC service. That
initial security administrator will be identified on your service profiles for
the OAC service as in effect at the relevant time. That initial security
administrator and each other user who has been granted user
administration rights in the OAC service will be an “OAC security
administrator” of yours for the OAC service. Each OAC security
administrator will have all of the rights and responsibilities described in
any terms and conditions for the OAC service, the reference materials
for the OAC service, or the general terms and conditions. Each OAC
security administrator included in your setup of the OAC service may be
able to administer the rights and permissions of any user included in
your setup of the OAC service, including themselves, and grant any of
those users, including themselves, access to any functionality available
to you in the OAC service. It is important for you to note that if you also
use the OAC service for your setup of the ACH origination service, any
OAC security administrator will be an OAC security administrator for the
OAC service option for the ACH origination service as well and can
entitle users for both the OAC service option for the AFC service and
the OAC service option for the ACH origination service. Any OAC
security administrator may terminate administration entitlements of any
other OAC security administrator directly through the OAC service,
including your initial OAC security administrator you designated on your
service profiles for the OAC service. We will provide the initial
authorization codes for use by your initial OAC security administrator
identified in your service profiles for the OAC service as they are in
effect at the relevant time. We will deliver these authorization codes
directly to that initial OAC security administrator.
(f) UAuthorization Codes and Security ProceduresU. The
security procedures for the OAC service include the requirement that
each of your users is required to enter that user’s authorization codes to
log on to the OAC service. We may require that a user provide
additional information or use other additional security procedures to
authenticate that user. Your users should not give their authorization
codes to any other person or use them anywhere other than within the
OAC service. The user’s initial authorization codes to access the OAC
service will be supplied by an OAC security administrator as described
in the general terms and conditions. You are solely responsible for
developing appropriate checks and balances to effectively control and
monitor the use of OAC service by all users, including but not limited to,
each of your OAC security administrators. You agree that these
security procedures are commercially reasonable.
4. USunTrust EntriesU. If you use the AFC service with respect to
an account that you use to settle incoming ACH debit entries for certain
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and Terms and Conditions
TREASURY MANAGEMENT
TERMS AND CONDITIONS
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transactions with us, then you will need to authorize those entries on a
standing order basis in one or more AFC service profiles. Transactions
subject to this requirement may include cash concentration debits,
automated loan and lease payments, check order payments and
merchant card settlements. If you fail to authorize entries for these
transactions on a standing order basis, then those entries will be
blocked and you may incur additional fees, interest and charges.
5. UDuration and Changing of OptionsU. Once we have included
the information from the selections you have made for the AFC service
(as reflected in your service profiles in effect at the relevant time or in
our records of our implementation of your AFC service) in our
implementation of your setup for the AFC service, we will process
incoming ACH debit and/or credit entries in accordance with those
selections and any authorizations set up in and instructions given
through the OAC service option, until (a) your use of the AFC service or
the agreement is terminated or (b) you confirm an AFC service profile or
provide other instructions that add to, delete or modify your previous
selections and we have had a reasonable period to act on them before
we receive the relevant entries. In that regard, if you are using the OAC
service option for an account and delete all authorizations set up for that
account, we will continue to block all incoming ACH debit and/or credit
entries from posting to your account. Conversely, if you provide an
instruction to delete an account from your OAC service setup, we will
remove the account from the AFC service and allow all incoming ACH
debit and credit entries to post to that account. Additionally, if you are
not using the OAC service option and you confirm an AFC service
profile that deletes the last authorization set up under a standing order
option for an account (and there is not otherwise an authorization setup
under a single entry option in effect for that account), we will remove the
debit block from the account and allow all incoming ACH debit and
credit entries to post to that account. If you want to prevent incoming
ACH debit and/or credit entries from posting to that account, you will
need to confirm an AFC service profile that adds a full debit/credit block
option or the OAC service option for that account. Conversely, if you
are not using the OAC service option for the AFC service and you
confirm an AFC service profile that deletes the last authorization set up
under a single entry option for an account (and there is not otherwise an
authorization set up under standing order option in effect for the that
account), we will convert your single entry option into a full debit/credit
block option for that account, blocking ACH debits from posting to that
account. If you want to permit incoming ACH debits to post to that
account, you will need to confirm an AFC service profile that deletes the
full debit/credit block option for that account or adds an authorization
under a standing order or single entry option to your AFC service setup
(or adds the OAC service option and establish authorizations through it).
ACH Origination Service
1. UDescription of the ACH Origination ServiceU. The SunTrust
Automated Clearing House Origination or “ACH” service allows you to
initiate debit and credit entries through the automated clearing house,
which is a funds transfer system for sending and settling for electronic
entries among participating financial institutions. Details regarding
ACH’s functionality and certain formatting and other technical
requirements that you must follow when using the ACH origination
service are provided in the ACH origination reference materials as we
update them from time to time.
2. UFunctioning of the ACH Origination ServiceU. Under the ACH
origination service, we act as the originating depository financial
institution or “ODFI” with respect to entries that you send us or that are
sent to us on your behalf. You will be the “originator” for each of those
entries. By confirming an ACH origination service profile, you agree to
comply with and be bound by the rules (as defined below).
3. UDefinitionsU. Unless otherwise defined in the general terms
and conditions or these ACH origination terms and conditions, terms
that are defined in the rules have the meanings given to those terms in
the rules. The following terms have the specified meanings for purpose
of these ACH origination terms and conditions:
(a) “UACH operatorU” means a Federal Reserve Bank or other
entity that provides clearing, delivery and settlement services for entries,
as further defined in the rules.
(b) “UAuthorized representativeU” means each person identified
in your ACH origination service profiles as they are in effect at the
relevant time, who is authorized (unless otherwise indicated in your
service profiles) to give us instructions and to verify the total dollar
amount of entries in a file by submitting control totals (as defined below)
in writing, by a method acceptable to us, or through our phone
authorization Line, or “PAL” system, if you have elected to use our PAL
system.
(c) “UBatchU” means entries that have been grouped together
and that have the same effective entry date and entry class code and
that settle to the same designated account.
(d) “UBusiness dayU” means Monday through Friday, excluding
banking holidays.
(e) “UCut-off deadlineU” means the time on a business day by
which we must receive an entry for processing on that business day as
we update it from time to time.
(f) “UDesignated accountU” means the account(s) to be used
as a settlement source of debits or credits for entries that you have
designated in your ACH origination service profiles as they are in effect
at the relevant time.
(g) “UEffective entry dateU” means the date specified in an
entry on which you instruct that the payment for that entry is to be made.
(h) “UEntryU” means a request for a credit to or a debit from a
receiver’s deposit account as further defined in the rules and includes all
data we receive from you regarding an entry.
(i) “UEntry class codesU” means the codes that distinguish the
various types of entries, as further defined in the rules.
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and Terms and Conditions
TREASURY MANAGEMENT
TERMS AND CONDITIONS
Page 14 of 63
(j) “UFileU” means a group of entries associated with a given
transmittal register and related control totals, as further defined in the
rules.
(k) “UFinal settlementU” means the day an entry is posted to
the account of the RDFI the ACH operator.
(l) “UInstructionU” means a direction relating to an entry that
we receive from an authorized representative, including canceling an
entry.
(m) “UNACHAU” means the National Automated Clearing House
Association.
(n) “UOn-us entryU” means an entry that credits or debits an
account maintained with us.
(o) “UReceiverU” means the person or entity that has
authorized you to initiate a debit or credit entry to the account of that
person or entity maintained at the RDFI as further defined in the rules.
(p) “URDFIU” means the receiving depository financial
institution as further defined in the rules.
(q) “URulesU” means the Operating Rules and Operating
Guidelines adopted by NACHA, as in effect at the relevant time.
(r) “UThird-party senderU” means a person that is not an
originator that has authorized an ODFI (or another third-party sender) to
transmit, for the account of the third-party sender (or another third-party
sender), (i) a credit entry to the account of a receiver with an RDFI (or, if
the receiver is also the RDFI, to such receiver) in order to effect a
payment from the originator to the receiver, or (ii) a debit entry to the
receiver’s transaction account or general ledger account with an RDFI
(or, if the receiver is also the RDFI, to such receiver) in order to effect a
payment from the receiver to the originator.
4. UTransmitting Entries to UsU. You may transmit entries and
instructions to us so long as you comply with the rules, the general
terms and conditions, these ACH origination terms and conditions, the
ACH origination reference materials and the security procedures. Any
entry you send must be transmitted to us through the online services
(which, for purposes of the ACH origination service, includes our online
cash manager service) identified in your ACH origination service profiles
as they are in effect at the relevant time and must comply with the
requirements of, and be identified by, the appropriate entry class code
and comply with all NACHA record format specifications. We may at
any time, immediately upon notice, prohibit you from originating certain
types of entries using the ACH origination service. Certain of our online
services may not be used to originate IAT entries or recurring TEL
entries, as we may determine from time to time. You must retain all data
on file that we would need to reprocess an entry for at least three
business days after midnight of the effective entry date of that entry and
agree to give us that data immediately upon our request. If you use a
third-party service provider, then each reference in these ACH
origination terms and conditions to “you,” includes your third-party
service provider as appropriate, provided that we may elect not to
accept designations of a third party processor to deliver entries on your
behalf.
5. UObligations of a Third-Party SenderU. The rules contain special
requirements and impose additional obligations on us when we act as
your ODFI with respect to entries you send us as a third-party sender.
As a result, we must obtain additional agreements and representations
from you with respect to those entries. If you send us any entries as a
third-party sender, you automatically make the additional agreements
and representations to us that are contemplated by the rules.
6. UOur Processing of EntriesU. Except as provided later in this
section with respect to on-us entries, we will process entries and
instructions that we receive from you and then transmit those entries as
the ODFI to an ACH operator. We will transmit the entries to the ACH
operator by its deposit deadline prior to the effective entry date shown in
the entries so long as the ACH operator is open for business on that day
and we receive the entries prior to (a) our cut-off deadline and (b) the
number of days required in the ACH origination reference materials to
meet the effective entry date shown in the entries. For entries that we
receive after those times, we will use reasonable efforts to transmit the
entries by the ACH operator’s next deposit deadline on a business day
on which the ACH operator is open for business. If we receive an on-us
entry from you, we will credit or debit the receiver's account for the entry
amount on the effective entry date so long as we receive the entry prior
to (a) our cut-off deadline and (b) the number of days required in the
ACH origination reference materials to meet the effective entry date
shown in the entry. For an on-us entry that we receive after those times,
we will use reasonable efforts to credit or debit the receiver's account on
the business day following such effective entry date. If the effective
entry date shown in an entry that we receive from you is not a business
day, we will process that entry as if the effective entry date for that entry
was the next business day following the requested effective entry date.
7. UExposure LimitsU. We reserve the right to establish and
change (immediately and without giving you prior notice) aggregate and
individual dollar limits or “exposure limits” for your entries and files. We
may refuse to process entries or files that exceed these exposure limits.
We will tell you what your exposure limits are at any time upon request.
8. USuspension and Rejection of EntriesU. We may suspend
processing of and/or reject an entry, batch or file that (a) does not
comply with the rules, the general terms and conditions, these ACH
origination terms and conditions, the ACH origination reference
materials or the security procedures or (b) contains an effective entry
date more than 14 calendar days after the day we receive it. We may
suspend processing of and/or reject an on-us entry for any reason that
would allow that entry to be returned under the rules. We may also
suspend processing of and/or reject an entry, batch or file if you fail to
comply with any of your obligations under these ACH origination terms
and conditions, including your obligation to maintain sufficient available
balances in the designated account(s). We may suspend processing of
an entry, batch or file without giving you notice. If we reject a batch or
an entire file of entries, we will notify you no later than the business day
on which the batch or file would have been transmitted to the ACH
operator for processing. If an individual entry is rejected, it will be
Exhibit G - SunTrust Treasury Management Master Agreement
and Terms and Conditions
TREASURY MANAGEMENT
TERMS AND CONDITIONS
Page 15 of 63
reported with your returns. If we reject an entry, batch or file, you may
be required to resend it.
9. UTermination or Suspension of ServiceU. In addition to, and
without in any way limiting, any other rights we have to terminate or
suspend your use of the ACH origination service under the agreement,
we may terminate or suspend your use of the ACH origination service
immediately and without giving you prior written notice if you have
breached the rules, any entry you transmit to us or any of your acts or
omissions might cause us to breach the rules or any representations or
warranties we make under the rules, or we believe termination or
suspension is necessary for us to comply with the rules.
10. UCancellation and Amendment of EntriesU. We have no
obligation to honor or process any request we receive from you to
cancel or amend an entry once we have received that entry. However,
as an accommodation to you, we will use good faith efforts to honor
your request to cancel (but not to amend) an entry if (a) the request
complies with the security procedures and (b) we receive your request
at a time and in a manner that gives us a reasonable opportunity to act
on it prior to transmitting the entry to the ACH operator or, in the case of
an on-us entry, prior to crediting or debiting the entry to the receiver’s
account. We are not liable if we cannot honor your cancellation request.
You agree to reimburse us for any expenses we may incur in attempting
to honor your cancellation request. If you request a cancellation, we will
use a reversing entry in an effort to honor your request except in limited
circumstances where we have the capability to delete the entry, batch or
file.
11. UName and Account Number InconsistencyU. You must ensure
the accuracy of your entries and instructions. If an entry describes the
receiver inconsistently by name and account number, payment may be
made by the RDFI (or, for an on-us entry, by us) on the basis of the
account number, even if that number identifies a person other than the
named receiver. You are responsible for any loss associated with such
inconsistency and your obligation to pay us the amount of the entry is
not excused in such circumstances.
12. UNotice of Returned EntriesU. We give you notice by online
service, secured e-mail, facsimile or mail promptly after we receive a
returned entry from the ACH operator. We are not obligated to
retransmit any returned entry that we originally transmitted in
compliance with these ACH origination terms and conditions. If you
want us to retransmit a returned entry to the ACH operator, you must
retransmit the entry to us.
13. UNotifications of ChangeU. We will give you notice by online
service, secured e-mail, facsimile or mail of all notifications of change
relating to your entries within two business days after we receive them.
You agree to make the required change(s) prior to submitting any
further entries to the applicable receiver’s account. If you fail to correct
an entry in response to a notification of change, NACHA may impose
fines against you that may be debited directly against the designated
account(s) without prior notice.
14. UOnline ACH Control ServiceU.
(a) UGeneral DescriptionU. Our Online ACH Control, or
“OAC,” service for ACH origination service, the “OAC service option,”
enables you to (i) submit control totals for each file you transmit to us for
origination, (ii) view certain details for your files transmitted to us for
origination and the current processing status of that file, and (iii) create
calendars of dates on which you expect to transmit files to us. Your
selection of which of these OAC service option functions to use will be
reflected on your Online ACH Control for ACH Origination service
profiles as in effect at the relevant time. The OAC service option may
not be used when creating and originating ACH entries through certain
of our online services, as we may determine from time to time. Details
regarding the OAC service option functionality and certain requirements
that you must follow when using the OAC service option are provided in
the OAC service reference materials as we update them from time to
time.
(b) UOAC Service Option FunctionsU.
(i) UControl TotalsU.
(A) Through the control totals function of the OAC
service option, you may submit control totals to verify the total dollar
amount of all debit entries and, separately, all credit entries included in
each file you have transmitted to us for origination. You may also
review, modify, or delete those control totals through the OAC service
option.
(B) Each user you have authorized to use the
control totals function will be able to enter, review, modify, or delete
control totals for any files submitted under any ACH origination point, or
“application,” included in your setup for ACH origination service (as
reflected in our records of our implementation of your setup) for which
you have authorized that user for the control totals function. To enter,
review, modify, or delete control totals for a file, your user must know
and select the correct application under which that file is submitted.
(C) Once we have completed processing for
origination a file that contains debit entries and credit entries in dollar
amounts that match control totals you have submitted for a file for that
application, you will not be able to change or delete those control totals
for that file.
(D) If you are using the control totals function of the
OAC service option, you can elect to have us send to one or more users
set up in the OAC service one or more file status alerts available for the
control total function, including alerts to notify you when we have
received a file, when we have successfully processed the file for
origination, and when a file has been suspended because of missing
control totals. Each user you designate to receive a file status alert will
be sent that alert for any file you submit for origination. You agree,
however, that we will not have any liability if we fail to send to any one of
those designated users or any one of those designated users does not
otherwise receive one of those file status alerts.
(ii) UFile InquiryU.
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and Terms and Conditions
TREASURY MANAGEMENT
TERMS AND CONDITIONS
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(A) Through the file inquiry function of the OAC
service option, for any file you have submitted to us for origination and
that we have started to process, you will be able to review certain details
for that file, and batches and entries included in the file. You will also be
able to view the current processing status of that file, including whether
that file has been successfully processed for origination by us, is being
processed but has suspended, has been rejected, or has been deleted.
This information for a file will only be available through the file inquiry
function of the OAC service option for the period of time specified in the
reference materials (as in effect from time to time).
(B) Each user you have authorized to use the file
inquiry function will be able to view all information available in the file
inquiry function for any files you have transmitted to us for origination
under any application for which you have authorized that user for the file
inquiry function.
(C) Each user you have authorized to use the file
inquiry function of the OAC service option will also be able to view all
information available for any ACH entries you receive which settle to an
account which is included as a settlement account for any application
included in any function of your setup of the OAC service option and for
which you have authorized that user for the file inquiry function.
(iii) UCalendar MonitoringU.
(A) Through the calendar monitoring function of the
OAC service option, you may create and maintain one or more
calendars of the dates on which you expect to transmit an ACH file to us
for origination. You may establish up to five calendars for each
application which you included in your setup of the calendar monitoring
function of the OAC service option (as reflected in our records of our
implementation of your setup of the OAC service option).
(B) To set up a new calendar for the calendar
monitoring function, you must first request (in a form acceptable to us)
for us to set up a blank calendar for an application included in your set
up of the calendar monitoring function. As part of that calendar setup,
you must provide us with the window(s) of time (between our ACH
processing windows) in which you expect to transmit your files to us and
the number of files you expect to transmit under that calendar on a day.
Once we have set up one or more blank calendars for an application
included in your setup of the calendar monitoring function, you can set
the dates you expect to submit a file to us on any of those calendars
and view and change the dates on any of those calendars through the
calendar monitoring function. Before the end of each year, we will set
up each of your calendars as a blank calendar for the applicable
application in the following year and use the same windows of time you
designated for each calendar as the windows of time in which you
anticipate transmitting your files to us (and the same number of files you
expect to transmit on a day under that calendar). Once a calendar has
been set up for an application for the following year, you will need to set
each of the dates on which you expect to transmit a file.
(C) Each user you have authorized to use the
calendar monitoring function of the OAC service option will be able to
view and set dates for any calendar established for an application
included in your setup of calendar monitoring function for which you
have authorized that user to use the calendar monitoring function.
(D) If you are using the calendar monitoring
function of the OAC service option, you can elect to have us send to one
or more of your users set up in the OAC service certain email alerts if
files are not submitted to us in accordance with the dates and
designated windows of times you have scheduled. If you scheduled a
date on a calendar for an application included in your setup of the
calendar monitoring function and a file is not transmitted to us under that
application by the start of the our ACH processing window following a
window of time designated for that calendar in which you anticipated
transmitting a file to us, we will send an email to each user you
designate to alert your designated users that we did not receive a file on
a date and at a time you scheduled. That email alert would be sent after
we completed our processing for that ACH processing window.
Similarly, if a file is transmitted to us on a date which was not a date
scheduled on one of your calendars for an application or in a window of
time which was not one of the windows of time you designated for a
calendar as the time you anticipated transmitting a file to us, we will
send an email to each user you designate that a file was submitted on a
date or at a time that was not scheduled as a date or the time you
expected to send a file to us. That email alert would be sent after we
completed our processing for that ACH processing window. Each of the
email alerts available for the calendar monitoring function will be sent to
each of the users set up in the OAC service which you have designated
to receive that type of alert. You agree, however, that we will not have
any liability if we fail to send to any one of those designated users or
any one of those designated users does not otherwise receive one of
those alerts.
(E) Even if a file is submitted under an application
included in your setup of the calendar monitoring function of the OAC
service option on a date or during a window of time that was not
scheduled for a calendar for that application, we will continue to process
that file in accordance with our normal procedures. If you have more
than one calendar setup for an application and you have scheduled on
more than one calendar the same date to submit a file we can not
determine which file was sent for which calendar. Additionally, if you
have more than one window of time scheduled for one day on a
calendar, we can not determine which file was sent for which window of
time. Therefore, you can not tell from an email alert, or fact that you did
not receive an email alert, whether we received the correct file
scheduled for that calendar or that window of time.
(c) USetting up AlertsU. Your security administrator will
designate which users included in your setup of the OAC service are to
be sent an alert available in the OAC service and which alerts each user
is to be sent. Alerts will be sent to each user at the email address
designated in setup for that user in the OAC service option.
(d) UDesignation ofU USecurity Administrator(s)U. In order to
use the features of the OAC service option (unless you are also
currently using the OAC service for the ACH Fraud Control service), you
must initially designate one person as one of your security
administrators for the OAC service. That initial security administrator
will be identified on your service profiles for the OAC service as in effect
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and Terms and Conditions
TREASURY MANAGEMENT
TERMS AND CONDITIONS
Page 17 of 63
at the relevant time. That initial security administrator and each other
user who has been granted user administration rights in the OAC
service will be an “OAC security administrator” of yours for the OAC
service. Each OAC security administrator will have all of the rights and
responsibilities described in any terms and conditions for the OAC
service, the reference materials for the OAC service, or the general
terms and conditions. Each OAC security administrator included in your
setup of the OAC service may be able to administer the rights and
permissions of any user included in your setup of the OAC service,
including themselves, and grant any of those users, including
themselves, access to any functionality available to you in the OAC
service. It is important for you to note that if you also use the OAC
service for your setup of the ACH Fraud Control service, any OAC
security administrator will be an OAC security administrator for the OAC
service option for the ACH Fraud Control service as well and can entitle
users for both the OAC service option for the ACH Origination service
and the OAC service option for the ACH Fraud Control Service. Any
OAC security administrator may terminate administration entitlements of
any other OAC security administrator directly through the OAC service,
including your initial OAC security administrator you designated on your
service profiles for the OAC service. We will provide the initial
authorization codes for use by your initial OAC security administrator
identified in your service profiles for the OAC service as they are in
effect at the relevant time. We will deliver these authorization codes
directly to your initial OAC security administrator.
(e) UAuthorization Codes and Security ProceduresU. The
security procedures for the OAC service include the requirement that
each user is required to enter that user’s authorization codes to log on
to the OAC service. We may require that a user provide additional
information or use other additional security procedures to authenticate
that user. Your users should not give their authorization codes to any
other person or use them anywhere other than within the OAC service.
The user’s initial authorization codes to access the OAC service will be
supplied by an OAC security administrator as described in the general
terms and conditions. You are solely responsible for developing
appropriate checks and balances to effectively control and monitor the
use of the OAC service by all your users, including but not limited to,
each of your OAC security administrators. You agree that these
security procedures are commercially reasonable.
15. USecurity ProceduresU. You agree to comply with the following
security procedures in using the ACH origination service and agree that
these security procedures are commercially reasonable:
(a) USystem EditU. We will only accept entry files that
pass our system edit. That system edit examines various attributes of
an entry file, including the settlement account, the credit or debit nature
of the entries contained in the file and the application identification
number contained in the file’s header or trailer record. We will reject
any entry file that does not pass our system edit and will notify an
authorized representative of that rejection. You agree that all entry files
that pass our system edit will conclusively be deemed to have been
authorized by you.
(b) UControl TotalsU. Except for entry files that are
transmitted through certain online services, you are required to verify
the total dollar amounts for all debit entries and, separately, for all credit
entries contained in each entry file by submitting to us the total dollar
amount for each, or the “control totals.” Except for files transmitted or to
be converted into an EDI format, you must submit the verifying control
totals through either the control totals function of the OAC service option
or our phone authorization line or “PAL” system. Your election to use
the control totals function of the OAC service option will be reflected in
your service profiles for the OAC service option, as in effect at the
relevant time. To submit control totals through the OAC service option
requires that the users you have authorized to use the control total
function for the applicable application must follow the security
procedures outlined for accessing the control totals function of the OAC
service option. To submit control totals through PAL requires the use of
the ACH authorization code that we assign and distribute directly to your
authorized representative. If your file is transmitted or to be converted
into an EDI format, your authorized representative will be required to
provide control totals to our EDI department by a method that is
acceptable to that department. If you use a third-party processor that
sends your entries to us in a file that also contains entries being initiated
on behalf of other clients, then your third-party processor may give us
control totals on an aggregate basis for all entries contained in that file.
(c) UOnline ServicesU. For entry files or instructions
that are transmitted to us through one of our online services, you are
required to comply with the security procedures for that online service.
If you use a third-party processor that sends your entries to us in a file
that also contains entries being initiated on behalf of other clients, then
your third-party processor will use the authorization codes that we
issued to it, rather than ones we issued to you.
(d) UDirect TransmissionsU. For entries transmitted
directly through communications software, a logon record with a unique
ID and password is required. The ID and password are provided with
the establishment of the direct transmission product. If you use a third-
party processor that sends your entries to us in a file that also contains
entries being initiated on behalf of other clients, then your third-party
processor will use the ID and password that we issued to it, rather than
ones we issued to you.
(e) UCancellation RequestsU. Instructions canceling an
entry may be delivered by a facsimile or through certain online services.
We may verify or authenticate any instructions by calling the authorized
representative giving us the instructions or by any other means we
believe to be reasonable in the circumstances, but are under no
obligation to do so. We will have no liability for acting on instructions we
believe in good faith to have been given by an authorized
representative.
(f) UGeneralU. We may verify or authenticate any entry or
files by contacting you by telephone or by any other method we believe
is reasonable under the circumstances, but we are under no obligation
to do so. If we are unable to verify or authenticate an entry or file, we
may refuse to process such entry or file. We may change the security
procedures by giving you notice of the changes and any changes will
take effect immediately upon your receipt of that notice.
Exhibit G - SunTrust Treasury Management Master Agreement
and Terms and Conditions
TREASURY MANAGEMENT
TERMS AND CONDITIONS
Page 18 of 63
16. UPayment for EntriesU. You must pay us the amount of each
credit entry we have originated on your behalf and we will pay you the
amount of each debit entry that we have originated on your behalf, all at
such times as we may determine. You must also pay us (at such time
as we may determine) the amount of each debit entry we have
originated on your behalf that is returned by the RDFI. We may, without
notice or demand, (a) debit any designated account for amounts that
you owe us under these ACH origination terms and conditions and
(b) credit any designated account for the amount of (i) originated debit
entries and (ii) returned entries previously debited from any designated
account. You must at all times maintain sufficient available funds in the
designated account(s) to cover your payment obligations to us. If your
obligations to us at any time exceed the available funds in the
designated account(s), we may refuse to process entries until you
deposit sufficient available funds and/or debit or place a hold on funds in
any account you maintain with us. We have the right to set off against
any amount we owe you, in payment of your obligations to us.
17. URepresentations for all EntriesU. You give us the following
representations with respect to every entry you send us: (a) the receiver
designated in that entry authorized you to initiate the entry and to credit
or debit its account in the amount and on the effective entry date of the
entry, (b) the receiver’s authorization is and will remain effective until the
receiver's account is debited or credited, (c) the entry conforms to your
obligations under the general terms and conditions, these ACH
origination terms and conditions, the rules and the ACH origination
reference materials, (d) the entry complies with and does not violate
applicable laws and regulations (including those relating to sanctions
programs), and (e) you have performed a reasonable examination of
your receiver relationships to identify transactions with those receivers
which must be originated using the IAT entry class code. You agree to
be bound by the rules and acknowledge that payment of an entry by the
RDFI to the receiver is provisional until the RDFI receives final
settlement for such entry and that, if such settlement is not received, the
RDFI will be entitled to a refund from the receiver of the amount credited
and, in such case, you will not be deemed to have paid the receiver the
amount of the entry.
18. UAdditional Representations for Specific Entry TypesU. The
rules contain special requirements and impose additional obligations on
us when we act as your ODFI with respect to certain entry types. As a
result, we must obtain additional agreements and representations from
you with respect to those entry types. Those additional agreements and
representations are set forth for each entry type below. If you send us
any of the entry types described below, you automatically make the
additional agreements and representations to us that are set forth for
that entry type below.
(a) UARC (Accounts Receivable) EntriesU. If you send us debit
entries using an ARC entry class code (each an “ARC Entry”), you
further represent and warrant to us and agree that:
(i) The entry is a single-entry debit for conversion of
receiver’s check or draft for the payment of goods or services;
(ii) A check or draft provided by the receiver to you and
received (a) via the U.S. mail (or an equivalent service, such as an
overnight delivery service), (b)at a drop box location, or (c) in person for
payment of a bill at a manned location serves as the source document
for the receiver’s routing number, account number, check serial number
and dollar amount for the entry, and contains a pre-printed serial
number, does not include an Auxiliary On-Us Field in the MICR line, is
for an amount of $25,000 or less and was completed and signed by the
receiver;
(iii) The check or draft used as the source document for
the entry is eligible to serve as a source document under the rules and
is not one of the following: third party checks or drafts, drafts that do
not include the signature of the receiver, checks provided by a credit
card issuer to access a credit account, checks drawn on home equity
lines of credit, checks drawn on an investment company, obligations of
financial institutions, such as, travelers checks or money orders, checks
drawn on federal institutions, such as, the Treasury of the United States
or Federal Reserve Bank, checks drawn of state or local government
and not payable through or at a participating depository financial
institution, and checks or drafts payable in a medium other than United
States currency;
(iv) For source documents received via U.S. mail (or an
equivalent service, such as an overnight delivery service) or at a drop
box location, in advance of receiving the source document for the entry,
you gave the receiver a notice that complies with the rules and that
clearly and conspicuously stated that receipt of receiver’s source
document would authorize an ACH debit entry to receiver’s account in
accordance with the terms of such source document, and for source
documents that are provided by the receiver in-person for payment of a
bill at a manned location, you provided a copy of such notice at the time
of the transaction;
(v) The source document for the entry has not been
altered;
(vi) The source document for the entry is not subject to
any defense or claim of any person;
(vii) The source document for the entry is drawn on,
payable through, or payable at the RDFI, and the amount of the entry,
the routing number, the account number and check serial number are in
accordance with the source document for the entry;
(viii) The source document for the entry will not be
presented to the RDFI unless the entry has been returned by the RDFI;
(ix) You have not key-entered the routing number,
account number, or check serial number from the source document for
the entry, other than to correct errors relating to MICR misreads,
misencoding or processing rejects;
(x) You must retain a reproducible, legible image,
microfilm or copy of the front and back of the source document for two
years from the date of the settlement of the entry;
Exhibit G - SunTrust Treasury Management Master Agreement
and Terms and Conditions
TREASURY MANAGEMENT
TERMS AND CONDITIONS
Page 19 of 63
(xi) You will give us a copy of the front and back of the
source document within five business days of our request;
(xii) You will establish reasonable document
retention/destruction policies and use commercially reasonable methods
to securely store all source documents until destruction, and all banking
information relating to ARC Entries; and
(xiii) You will comply with the rules for ARC Entries.
(b) UBack Office Conversion (BOC) EntriesU. If you send us
debit entries using a BOC entry class code (each a “BOC Entry”), you
further represent and warrant to us and agree that:
(i) The entry is sent to collect truncated checks for
payment of goods or services;
(ii) Prior to the receipt of each source document that is
used as the basis for the origination of a BOC entry, you will provide the
receiver with notice that includes the following, or substantially similar,
language:
"When you provide a check as payment, you authorize us either to use
information from your check to make a one-time electronic fund transfer
from your account or to process the payment as a check transaction.
For inquiries, please call <retailer phone number>."
Such notice will be posted in a prominent and conspicuous location and
a copy of such notice, or language that is substantially similar, will be
provided to the receiver at the time of the transaction.
(iii) A check or draft provided to you by the receiver at
the point of purchase serves as the source document for the receiver's
routing number, account number, check serial number and dollar
amount for the entry. Such source document for the BOC Entry:
(A) Contains a pre-printed serial number;
(B) Does not contain an Auxiliary On-Us Field in
the MICR line;
(C) Is in an amount of $25,000 or less; and
(D) Was completed and signed by the receiver.
(iv) The checks or drafts used as the source document
for a BOC Entry are not:
(A) Checks or sharedrafts that have not been
encoded in magnetic ink;
(B) Checks or sharedrafts that contain an Auxiliary
On-Us Field in the MICR line;
(C) Checks or sharedrafts in an amount greater
than $25,000;
(D) Third-party checks or sharedrafts;
(E) Remotely created checks, as defined by
Regulation CC, and third-party drafts that do not contain the signature of
the Receiver;
(F) Checks provided by a credit card issuer for
purposes of accessing a credit account or checks drawn on home equity
lines of credit;
(G) Checks drawn on an investment company;
(H) Obligations of a financial institution (e.g.,
traveler's checks, cashier's checks, official checks, money orders, etc.);
(I) Checks drawn on the Treasury of the United
States, a Federal Reserve Bank, or a Federal Home Loan Bank;
(J) Checks drawn on a state or local government
that are not payable through or at a Participating DFI; or
(K) Checks or sharedrafts payable in a medium
other than United States currency.
(v) You will employ commercially reasonable
procedures to verify the identity of the receiver;
(vi) You have established and will maintain a working
telephone number for receiver inquiries regarding the transaction that is
answered during normal business hours. This telephone number will be
displayed on the notice required to be given to the receiver.
(vii) The amount of the entry, the routing number, the
account number and check serial number are in accordance with the
source document for the entry;
(viii) You used a reading device during the initial
processing of the BOC entry to capture (and did not key-enter) the
receiver's routing number, account number, and check serial number
from the receiver's source document for the entry, and key-entered such
information only to correct errors relating to MICR misreads,
misencoding or processing rejects.
(ix) You will not use the source document for the entry
as a check to obtain payment unless the BOC entry is returned by the
RDFI.
(x) You will retain a reproducible, legible image,
microfilm or copy of the front of the receiver's source document for each
BOC entry for two years from the settlement date of the BOC entry.
(xi) Upon our request, you will give us, within five
banking days of such request, a copy of the front of the receiver's
source document (and such copy will indicate that it is a copy on its
face).
Exhibit G - SunTrust Treasury Management Master Agreement
and Terms and Conditions
TREASURY MANAGEMENT
TERMS AND CONDITIONS
Page 20 of 63
(xii) You will employ commercially reasonable methods
to securely store:
(A) All source documents until they are destroyed;
and
(B) All banking information relating to BOC Entries.
(xiii) You have and will continue to otherwise comply with
the rules for BOC entries.
(c) UInternational ACH Transaction (IAT) Entries.U If you send
us an entry that is an IAT entry, you further represent and warrant to us
and agree that:
(i) The entry will be identified by, and will comply with
the requirements of, the IAT entry class code, including complying with
all NACHA record format specifications for the IAT entry class code.
(ii) If you originate an entry using another entry class
code and we determine in good faith the entry should have been
originated using the IAT entry class code, in addition to any other rights
we have, we may suspend the processing of and/or reject that entry (or
batch or file containing that entry) and we may also suspend and/or
terminate your ACH origination service immediately without prior notice.
Similarly, a gateway operator or ACH operator may suspend the
processing of and/or reject an entry that it determines should have been
originated as an IAT entry and was not.
(iii) You are in compliance with, and the entry complies
with, all applicable United States laws and regulations, including
sanctions and other programs administered by the U.S. Department of
Treasury’s Office of Foreign Asset Control, “OFAC,” or Financial Crimes
Enforcement Network.
(iv) You are in compliance with, and the entry complies
with, the laws, regulations, and payment system rules of the receiving
country, including any requirements to obtain the receiver’s written, oral,
or electronic authorization, for the receiver’s authorization to be validly
signed, for the receiver’s authorization to be in proper form to authorize
the foreign RDFI to debit the receiver’s account, to provide notice of the
entry prior to it settling in the receiver’s account, to provide notice to the
receiver of the receiver’s recourse and other provisions relevant to the
receiver, and to obtain a separate authorization from the receiver for
each debit entry initiated at sporadic times, instead of set intervals.
(v) In addition to any other rights we have, if we suspect
that the entry may not, or determine that the entry does not, comply with
any applicable laws or regulations, the rules, or any other payment
system rules (including those laws and regulations relating to sanctions
programs), we may suspend processing of and/or reject the entry and
hold funds debited from or to be credited to your account for the entry.
(vi) You will maintain either the original or a copy of any
authorization required from the receiver for the entry for the longest
period of time we may be required to produce that authorization under
any of the rules, the laws and regulations of the U.S., and the laws,
regulations, and payment system rules of the receiving country. You will
make available for inspection, within a reasonable time, upon our
request or the request of the receiver or an authorized representative of
the receiver (including the receiving bank) the authorization required
from the receiver of the entry.
(vii) If the entry is an outbound IAT entry, you authorize
(and authorize us to authorize) the gateway operator to transmit the
entry to the foreign gateway operator and to arrange for the settlement
of the entry with the foreign gateway operator, for further transmission
to, and settlement with, the foreign RDFI for credit or debit of the
amount to or from the receiver’s account.
(viii) If the entry is an outbound IAT entry and we do
not have an agreement for processing IAT entries with the domestic
RDFI that serves as the gateway operator for the entry, it may result in
either us or the gateway operator suspending the processing of and/or
rejecting the entry (or the batch or file in which the entry is contained).
(ix) You have sole responsibility for all losses and other
risks relating to foreign exchange conversion with respect to the entry.
(x) In addition to any other obligations you have under
the general terms and conditions or these ACH origination terms and
conditions, you will be responsible for any and all liabilities, claims,
damages, losses, demands, fines, judgments, disputes, costs, charges,
and expenses which relate in any way to (i) any IAT entry (or requests
or instructions related to an IAT entry) you send us that does not comply
with all applicable laws and regulations, the rules, and the payment
system rules of the receiving country, or (ii) any breach of any
representation, warranty, or agreement you have made related to an
IAT entry. Without limiting the foregoing, you agree you are liable for
and will reimburse us for all amounts that may be erroneously paid by
us or any receiving bank in respect of any entry erroneously credited or
debited by us or any receiving bank pursuant to any IAT entry you
originated or related instructions you gave and any claim paid by us
(including any claim for interest) as a result of a declaration of a receiver
or other person alleging that an IAT entry was not originated in
accordance with the receiver’s authorization, the receiver’s authorization
was revoked, a required notification was not given in sufficient time
before the entry was processed to the account of the receiver, or no
valid authorization ever existed between the receiver and you.
(xi) Because of the requirements for processing IAT
entries, the processing of an IAT entry may be delayed or suspended.
Any such delay or suspension may affect the settlement of and
availability of funds for an IAT entry. You will transmit IAT entries to us
in files comprised solely of IAT entries, rather than in a file that also
contains other entry types. If you include an IAT entry in a file that
contains other entry types, the processing of the entire file, not just the
IAT entries, may be delayed or suspended, affecting settlement of and
availability of funds for any entry in that file. In addition to any other
limits on our liability, we will not have any liability for any delay in or
suspension of processing or rejection of an IAT entry (or file containing
an IAT entry), in accordance with our processing requirements for IAT
entries or applicable law, or for the actions of any third parties (including
Exhibit G - SunTrust Treasury Management Master Agreement
and Terms and Conditions
TREASURY MANAGEMENT
TERMS AND CONDITIONS
Page 21 of 63
any gateway operator or ACH operator) resulting in the delay in or
suspension of processing or rejection of an IAT entry.
(xii) A gateway operator may return the entry after the
period of time for the return of an IAT entry provided in the rules, and
you agree we may settle that return to one of your accounts.
(xiii) Your obligations with respect to any IAT entries
under the these ACH origination terms and conditions, including any
obligations under the payment system rules of the receiving country,
shall continue to remain in full force and effect after the termination of
your ACH origination services or your ability to generate IAT entries with
respect to any entry you originate prior to the effective date of such
termination.
(xiv) You have and will continue to comply with the rules
for IAT entries.
(d) UPOP (Point-of Purchases) EntriesU. If you send us debit
entries using the POP entry class code (each a “POP entry”), you
further represent and warrant to us and agree that:
(i) A check or draft provided by the receiver at the point
of purchase serves as the source document for receiver’s routing
number, account number, check serial number and dollar amount for the
entry, and that source document contains a preprinted serial number,
does not contain an Auxiliary On-Us Field in the MICR line, is for an
amount of $25,000 or less, was completed and signed by the receiver,
and has not previously been provided by the receiver for use in any
other POP entry;
(ii) Prior to the receipt of each source document that is
used as the basis for the origination of a POP entry, you will provide the
receiver with notice that includes the following, or substantially similar,
language:
"When you provide a check as payment, you authorize us either to use
information from your check to make a one-time electronic fund transfer
from your account or to process the payment as a check transaction."
Such notice will be posted in a prominent and conspicuous location and
a copy of such notice, or language that is substantially similar, will be
provided to the receiver at the time of the transaction;
(iii) You have voided the source document and returned
it to the receiver at the point of purchase;
(iv) The source document is an eligible item for POP
entries under the rules, and you have not used a previously voided item
as the source document;
(v) You have obtained the receiver’s signed, written
authorization for the entry;
(vi) You have not key-entered the routing number,
account number or check serial number from the source document;
(vii) You will give us a copy of the receiver’s written
authorization for the entry within five days after we request it;
(viii) You have given the receiver of the entry a receipt for
that entry that contains all of the information required under the rules;
and
(ix) You will comply with all rules and regulations under
the Rules for POP Entries.
(e) URCK (Re-presented Check) EntriesU. If you send us debit
entries using the RCK entry class code (each an “RCK Entry”), you
further represent and warrant to us and agree that:
(i) The entry is sent to collect a check or draft drawn on
a consumer account that has been returned;
(ii) You have good title to and are entitled to enforce the
returned item to which the entry relates and can transfer good title to us;
(iii) All signatures on the returned item to which the
entry relates are authentic and authorized;
(iv) The returned item to which the entry relates has not
been altered and the entry is for no more than the face value of such
item;
(v) The returned item to which the entry relates is not
subject to any defense or claim in recoupment of any person, including
any defense or claim that could be asserted against us;
(vi) You have no knowledge of any insolvency
proceeding commenced with respect to the maker, acceptor or drawer
of the returned item to which the entry relates;
(vii) The returned item to which the entry relates is
drawn on, payable through, or payable at the RDFI, and the amount of
the item, the item number, and the account number contained on such
item have been accurately reflected in the entry;
(viii) Neither the returned item to which the entry relates
nor a copy of such item will be presented to the RDFI, unless the related
entry has been returned by the RDFI;
(ix) The information encoded after issue in magnetic ink
on the returned item to which the entry relates is correct;
(x) Any restrictive endorsement made by you or your
agent on the returned item to which the entry relates is void or
ineffective upon initiation of the entry;
(xi) The item is an eligible item as defined in the rules;
(xii) You have given the receiver of the entry a notice
that clearly and conspicuously states the terms of the represented check
entry policy in advance of receiving the item to which the entry relates;
Exhibit G - SunTrust Treasury Management Master Agreement
and Terms and Conditions
TREASURY MANAGEMENT
TERMS AND CONDITIONS
Page 22 of 63
(xiii) You will maintain a copy of the front and back of the
returned item to which the entry relates for seven years from the
settlement date of the entry;
(xiv) You will give us either the original returned item to
which the entry relates (if we request it within 90 days of the settlement
date) or a copy of the front and back of such item within five business
days of our request;
(xv) The entry was transmitted in time for us to transmit
the entry to the RDFI’s ACH operator by midnight of the second banking
day following the banking day of receipt of the presentment notice for
the returned item to which the entry relates; and
(xvi) You will comply with the rules for RCK Entries.
(f) UTEL (Telephone-Initiated) EntriesU. If you send us debit
entries using the TEL entry class code (each a “TEL entry”), you further
represent and warrant to us and agree that:
(i) You have used commercially reasonable
procedures to verify the identity of the receiver of the entry;
(ii) You have used commercially reasonable
procedures to verify that the routing number associated with the entry is
valid;
(iii) You have obtained oral authorization from the
receiver for the entry, and the authorization complies with the rules and
contains all of the information required under the rules;
(iv) For an authorization relating to a single entry TEL
entry, you will either make an audio recording of the oral authorization,
or provide the receiver with written notice confirming the oral
authorization prior to the settlement date of the entry;
(v) For an authorization relating to recurring TEL
entries, you will comply with the requirements of Regulation E for the
authorization of preauthorized transfers, including the requirement to
send a copy of the authorization to the receiver;
(vi) For a single entry TEL entry, you will retain the
original or a microfilm or microfilm equivalent copy of the written notice
or the original or a duplicate audio recording of the oral authorization for
two years from the date of the authorization, and you will give us a copy
of such audio recording or such notice immediately upon our request;
(vii) For recurring TEL entries, you will retain for two
years from the termination or revocation of the authorization (a) the
original or a duplicate audio recording of the oral authorization, and (b)
evidence that a copy of the authorization was provided to the receiver in
compliance with Regulation E; and
(viii) You will comply with all rules and regulations under
the rules for TEL Entries.
(g) UWEB (Internet-Initiated/Mobile) EntriesU. If you send us
debit entries using the WEB entry class code (each a “WEB entry”), you
further represent and warrant to us and agree that:
(i) The entry is transmitted pursuant to an authorization
that is obtained from the receiver via the Internet or Wireless Network to
effect a transfer of funds from a consumer account of the receiver, or
pursuant to any authorization permitted by the rules if the receiver’s
instruction for the initiation of the individual debit entry is designed to be
communicated via a Wireless Network;
(ii) You have employed a commercially reasonable
fraudulent transaction detection system to screen the entry;
(iii) You have used commercially reasonable
procedures to verify the identity of the receiver of the entry;
(iv) You have utilized commercially reasonable
procedures to verify that the routing number associated with the entry is
valid;
(v) You have used encryption for transmittal of banking
information related to any entry or you have established a secure
Internet session with the receiver of the entry, in either case utilizing
commercially reasonable security technology providing a level of
security that, at a minimum, is equivalent to 128-bit encryption
technology prior to the receiver’s key entry and through transmission to
the originator of any banking information, including, but not limited to,
any entry, the receiver’s routing number, account number and PIN
number or other identification symbol;
(vi) You will conduct or have conducted annual audits to
ensure that the financial information you obtain from receivers is
protected by security practices and procedures that include, at a
minimum, adequate levels of (A) physical security to protect against
theft, tampering, or damage, (B) personnel and access controls to
protect against unauthorized access and use, and (C) network security
to ensure secure capture, storage, and distribution;
(vii) You will provide us upon request with proof that is
satisfactory to us that your annual security audit has been properly
conducted;
(viii) You have obtained a properly authenticated
authorization from the receiver complying with the rules, and shall give
us a copy of that authorization within five days after we request it; and
(ix) You will comply with the rules for WEB Entries.
(h) UReturn Fee EntriesU. If you send us a debit entry for a
return fee charged to a recevier for a debit entry or other item that was
returned for insufficient or uncollected funds (a “Return Fee Entry”), you
further represent and warrant to us and agree that:
(i) The Return Fee Entry is in relation to the return of
either (a) a debit entry to a consumer account of a receiver; (b) an ARC,
Exhibit G - SunTrust Treasury Management Master Agreement
and Terms and Conditions
TREASURY MANAGEMENT
TERMS AND CONDITIONS
Page 23 of 63
BOC or POP entry to a non-consumer account of a receiver; or (c) an
item that was eligible to be converted to a debit entry, but was not
converted to an entry;
(ii) The Return Fee Entry is for the purpose of collecting
a return fee that is permitted under the rules for Return Fee Entries, and
you have satisfied all requirements with respect to the returned item in
order to originate the Return Fee Entry;
(iii) If you have satisfied the requirements for
authorization of a Return Fee Entry by providing notice to the receiver at
the time that the underlying entry was authorized or the original item
was accepted, the notice included the following, or substantialy similar,
language:
"If your payment is returned unpaid, you authorize us to make a one-
time electronic fund transfer from your account to collect a fee of [$ ];”
or
“If your payment is returned unpaid, you authorize us to make a one-
time electronic fund transfer from your account to collect a fee. The fee
will be determined [by/as follows]: [ ]”’;
(iv) You have not and will not impose any other return
fee in relation to the underlying entry or item that was returned unpaid;
and
(v) You have complied with all rules for Return Fee
Entries, including formatting requirements and settlement date
requirements, if applicable.
19. UAudit RightsU. At any time, upon two days’ prior notice, we
may perform a remote or onsite audit of your systems, procedures and
controls, and records as we deem necessary to determine your
compliance with the rules and these ACH origination terms and
conditions. You will provide us with reasonable assistance and
information to conduct such audit, including reasonable access to
operating systems, policies, procedures, records, and other materials.
20. UNoticesU. Oral notices or communications relating to entries,
instructions and these ACH origination terms and conditions must be
given (a) if to us, to your treasury management sales officer, treasury
management customer service specialist or as otherwise provided in
these terms or conditions or the ACH origination reference materials
and (b) if to you, to the telephone number you provide in your ACH
origination service profiles as they are in effect at the relevant time.
Written notices, instructions, directions, confirmations, verifications, or
other communications with respect to entries and these ACH origination
terms and conditions must be given (a) if to us, to your treasury
management sales officer, treasury management customer service
specialist or as otherwise provided these terms or conditions or the ACH
origination reference materials and (b) if to you, at the address reflected
in our records. You and we may both change our telephone number(s)
or address(es) by giving written notice to each other.
Cash Concentration Service
1. UDescription of the CashCon ServiceU. The SunTrust Cash
Concentration or "CashCon" service allows you to manage your
available balances at other financial institutions by sending debit entries
to those accounts through the automated clearing house, which is a
funds transfer system for sending and settling electronic entries among
participating financial institutions. Details regarding CashCon’s
functionality and certain requirements that you must follow when using
the CashCon service are provided in the CashCon reference materials
as they are updated from time to time.
2. UFunctioning of the CashCon ServiceU. Under the CashCon
Service, we act as the originating depository financial institution or
“ODFI” with respect to debit entries that you send us or that are sent to
us on your behalf that are directed to your accounts at other financial
institutions that you have identified (in a form acceptable to us) and we
have included in our implementation of your setup for the CashCon
Service. The accounts that you maintain at other financial institutions
are referred to as the “reporting location accounts”. Debit entries
directed to a reporting location account are referred to as
“concentration” entries. You will be the “originator” for each of those
entries. Your use of the CashCon service is subject to the terms and
conditions for the ACH origination service.
3. UImplementation of CashCon SetupU. We need certain
information to implement your setup for the CashCon service. You
agree to give us all of this information in a form that is acceptable to us.
The SunTrust account used to settle concentration entries is referred to
as the "designated account." A reporting location account must use the
same designated account to settle concentration entries. However,
each reporting location account may use a different designated account
and any designated account may be used to settle concentration entries
for multiple reporting location accounts. The designated accounts are
identified in your CashCon Service profiles as they are in effect at the
relevant time.
4. UOrigination and Processing of EntriesU. You must send all
concentration entries to us by using one of the following delivery
methods: (a) calling our voice response system, (b) calling one of our
live operators, (c) logging on to our CashCon web site or (d) accessing
our dial-up corporate control service. The telephone numbers and the
Internet address are provided in the CashCon reference materials. If we
receive your concentration entries after the delivery deadline set forth in
the CashCon reference materials, we will treat them as if we received
them on our next business day. We will format, process and settle to
the relevant designated account all concentration entries that we receive
Exhibit G - SunTrust Treasury Management Master Agreement
and Terms and Conditions
TREASURY MANAGEMENT
TERMS AND CONDITIONS
Page 24 of 63
from you in accordance with the rules, these CashCon terms and
conditions and the terms and conditions for the ACH origination service.
5. USecurity ProceduresU. The following security procedures apply
to your use of the CashCon service:
(a) UCompany NumberU. We will give you an authorization
code that the voice response system, our live operators, the web site
and the corporate control service may refer to as the company number.
The company number is not unique to you and we may give the same
company number to multiple clients. You must use the company
number to send us a concentration entry through any delivery method
for any reporting location account that we have included in your setup
for the CashCon service.
(b) UID Number, Location Code or LocationU. We will also give
you an authorization code(s) for each reporting location account that we
have included in our implementation of your setup for the CashCon
service. The voice response system and our live operators may refer to
this code as the ID number, the web site may refer to it as the location
code and the corporate control service may refer to it as the location.
Each ID number, location code or location is limited to initiating
concentration entries to a particular reporting location account. You
must use the appropriate ID number, location code or location to send
us a concentration entry through any delivery method for each reporting
location account that we have included in your setup for the CashCon
service.
(c) UCompany Password and PINsU. For the web site, we will
give you (a) a single authorization code that the web site may refer to as
a password and (b) an authorization code for each location code that
the web site may refer to as a PIN. The password is linked to the
company number. As with the company number, the password is not
unique to you and we may give the same password to multiple clients.
Each PIN, however, is uniquely linked to a particular location code. You
must use the company number, password and the appropriate location
code and PIN to log onto the web site and send us a concentration entry
for each reporting location account that we have included in your setup
for the CashCon service.
(d) UDivision Code and PasswordU. For the corporate control
service, we will give you two authorization codes that the corporate
control service may refer to as a division number and division password.
The division number and division password are unique to you, but are
not unique to any particular reporting location account. You must use
the company number, division number, division password and the
appropriate location to log onto the corporate control service and send
us a concentration entry for each reporting location account that we
have included in your setup for the CashCon service.
The authorization codes are not user-specific. This means that all of
your authorized users must use the same set of authorization codes to
initiate a concentration entry for a particular reporting location account.
We will send all of the authorization codes to the person(s) identified in
your CashCon service profiles as they are in effect at the relevant time.
Each such person will act as your “contact” with respect to the
authorization codes we send to him or her and will have all of the rights
and responsibilities described in the general terms and conditions. You
agree that these security procedures are commercially reasonable.
6. UACH Origination ServiceU. These CashCon terms and
conditions are expressly made a part of the terms and conditions for the
ACH origination service and are subject to the terms and conditions
thereof. Terms that are defined in the terms and conditions for the ACH
origination service have the same meanings when used in these
CashCon terms and conditions. If there is any inconsistency on a
particular issue between these CashCon terms and conditions and the
terms and conditions for the ACH origination service, these CashCon
terms and conditions will control. You understand and agree, however,
that our agreement to provide the CashCon service does not permit you
to use any other aspect of the ACH origination service unless we have
agreed to include it in our implementation of your setup for the ACH
origination service.
Cash Vault Service
1. UDescription of the Cash Vault ServiceU. The SunTrust cash
vault service is designed to facilitate your cash and deposit needs.
Details regarding the cash vault service’s functionality and certain
requirements that you must follow when using the cash vault service are
provided in the cash vault reference materials as we update them from
time to time.
2. UDefinitionsU. The following terms have the specified meanings
for the purposes of these cash vault terms and conditions:
(a) “UAccountU” means the account(s) identified in your cash
vault service profiles as they are in effect at the relevant time to which
deposits will be made and from which cash orders will be funded.
(b) “UArmored courierU” means the armored courier you select
that uses secure, marked vehicles and armed personnel to transport
deposits and cash orders.
(c) “UAuthorized userU” means any person that you are
deemed to have authorized to place cash orders up to the order limit,
including each person you have designated (in a form acceptable to us)
as an authorized user.
(d) “UBusiness dayU” means Monday through Friday, excluding
holidays that we observe.
(e) “UCash ordersU” means those orders you give us for the
delivery of U.S. coins or currency by armored courier.
Exhibit G - SunTrust Treasury Management Master Agreement
and Terms and Conditions
TREASURY MANAGEMENT
TERMS AND CONDITIONS
Page 25 of 63
(f) “UCash vault(s)U” means the cash vault(s) that we have
designated as serving your business location(s).
(g) “UContaminated currencyU” means any currency which the
Federal Reserve Bank classifies as contaminated, including any
currency damaged by or exposed to a contaminant hazard (including
any chemical, radioactive or biological substances) that may present a
health or safety risk or that cannot be processed under normal operating
procedures.
(h) “UDepositsU” means deposits of funds that you deliver to
the cash vault and are processed in accordance with these cash vault
terms and conditions.
(i) “UFundsU” means U.S. coins, currency, checks and other
negotiable items.
(j) “UMutilated coinsU” means any coins that have been bent or
twisted out of shape, punched, clipped, plugged, fused or defaced but
that can be identified as to genuineness and denomination.
(k) “UMutilated currencyU” means any currency that has been
damaged to the extent that one-half or less of the note remains, or its
condition is such that its value is questionable and special examination
is required before any exchange is made.
(l) “UOrder limitU” means the maximum dollar value of cash
orders that you have designated (in a form acceptable to us) that may
be requested on any business day for each of your locations.
3. UYour Obligations in Making DepositsU.
(a) You must collect and count funds and place them in a
sealed, disposable deposit bag(s) or similarly designed tamper-proof
bag(s) (each such bag is referred to in these cash vault terms and
conditions as a “sealed deposit”) clearly marked with your name or
identification number. Each sealed deposit must be prepared in
accordance with the requirements set forth in the cash vault reference
materials. A deposit ticket listing your name, deposit account number
and the amount of funds must be included in each sealed deposit.
(b) You must cause sealed deposits to be delivered by the
armored courier to the appropriate cash vault for each of your locations.
We may reject, impose a special fee on and/or delay processing of any
deposit if (i) the deposit ticket does not match the amount of the deposit,
(ii) the deposit was not prepared in accordance with the requirements
set forth in the cash vault reference materials, (iii) the deposit is
delivered to the wrong cash vault, (iv) the deposit is delivered by anyone
other than the armored courier or (v) any deposit bag appears to be
unsealed or to have been tampered with.
(c) In the event that we accept delivery of an unsealed
deposit bag or a deposit bag that appears to have been tampered with
(each such bag is referred to in these cash vault terms and conditions
as an “unsealed deposit”), we will give you notice on the day we receive
it. Unless you have previously given us instructions on how to process
unsealed deposits, we will not process or take any action regarding an
unsealed deposit until you give us an instruction (in a form acceptable to
us) regarding its disposition.
4. UOur Obligations for Processing DepositsU.
(a) We will open each sealed deposit, verify the contents
against the deposit ticket and deposit funds to the relevant account. We
will process deposits within 24 hours of delivery to the cash vault. If
there is any discrepancy between the total amount of the deposit
reflected by you on the deposit ticket and the amount counted by us, our
count will be final. If we detect any counterfeit or illegally altered coins
or currency in a deposit, we will forward it to the Secret Service and
charge the relevant account for the difference. A deposit adjustment
notice will be sent to you on the day that the discrepancy or counterfeit
is discovered.
(b) The relationship of debtor and creditor will not exist
between you and us until we deposit the funds to your account.
5. UCash OrdersU. You acknowledge that each authorized user
has authority to place cash orders up to the order limits for delivery to
your location. We may place a “hold” on your account for the amount of
a cash order as soon as we receive it, and we will charge your account
for the cash order when we deliver it to the armored courier. We
reserve the right to reduce cash orders to maintain our inventory of
coins and currency.
6. UAuthorization Codes and Security ProceduresU. If you place
cash orders through our voice response unit, one of our on-line services
or another automated ordering system, we will provide authorization
codes for each of your authorized users. We will deliver the
authorization codes directly to each authorized user or to the person(s)
you have designated as your “contact” at the relevant physical or
electronic address you have designated (in a form acceptable to us).
The security procedures for cash orders placed through one of these
methods may include the requirement that your authorized users use
their authorization codes when placing a cash order. You agree that
those security procedures are commercially reasonable.
7. URisk of DeliveryU.
(a) You are solely responsible for engaging the armored
courier and assume any and all risks incidental to or arising out of
selection of the armored carrier, the delivery of deposits to us and the
delivery of cash orders to you. We have no responsibility or liability for a
deposit until we accept possession of it from the armored courier (as
evidenced by one of our authorized representatives signing the armored
courier’s manifest acknowledging receipt of a designated number of
deposit bags included in the deposit) or for cash orders after we deliver
them to the armored courier. If a deposit is lost in transit, you are
responsible for recreating that deposit.
(b) The armored courier must be acceptable to us, in our
sole discretion. If we determine, in our sole discretion, that the armored
courier’s service is not satisfactory, we may terminate your ability to use
the cash vault service by giving you 10 days notice, unless you have
engaged a new armored courier satisfactory to us, in our sole discretion,
within that 10-day period.
Exhibit G - SunTrust Treasury Management Master Agreement
and Terms and Conditions
TREASURY MANAGEMENT
TERMS AND CONDITIONS
Page 26 of 63
8. UContaminated and Mutilated Coins or CurrencyU.
(a) Contaminated currency must be delivered to us in a
separate sealed, tamper-evident disposable deposit bag, clearly labeled
as “Contaminated Currency.” You must provide documentation stating
the type and extent of the contamination, a breakdown by denomination
of the currency and a deposit slip for the declared value. The deposit
bag and 2 copies of the required documentation must be placed in a
second sealed, tamper-evident, disposable deposit bag with stated
value recorded on the bag. We will forward the deposit of contaminated
currency to the Federal Reserve Bank for processing. Once the Federal
Reserve Bank has provided confirmation of value, we will credit your
account for the value assigned.
(b) Mutilated coins or currency must be delivered to us in a
separate sealed, tamper-evident disposable deposit bag, clearly labeled
as “mutilated coins” or “mutilated currency” as appropriate. You must
provide documentation stating the estimated value of the mutilated coins
or currency, a break down by denomination of the coins or currency, an
explanation of how the coins or currency became mutilated, and a
deposit slip for the estimated value of the deposit. The deposit bag and
2 copies of the required documentation must be placed in a second
sealed, tamper-evident, disposable deposit bag with stated value
recorded on the bag. We will forward the deposit of coins to the U.S.
Mint and the deposit of mutilated currency to the U.S. Department of the
Treasury. Once the U.S. Mint or the U.S. Department of the Treasury
has provided confirmation of the value of the mutilated coins or
currency, we will credit your account for the value assigned.
(c) If there is any discrepancy between the value of the
contaminated currency or mutilated coins or currency assigned by you
and the amount counted by us or by the Federal Reserve Bank, U.S.
Department of the Treasury or the U.S. Mint, our count or the count of
the Federal Reserve Bank, U.S. Mint or the U.S. Department of the
Treasury will be final. We will charge you for any additional fees
charged by the Federal Reserve Bank for processing any contaminated
currency, by the U.S. Mint for processing any mutilated coins or by the
U.S. Department of the Treasury for processing any mutilated currency.
(d) We may refuse to accept any contaminated or mutilated
coins or currency unless we have given our prior approval for the
delivery of such coins or currency. If any contaminated currency or
mutilated coins or currency is included in a deposit and not contained in
separate marked deposit bag, we may refuse to process all or part of
the deposit, may return the deposit or the contaminated currency or
mutilated coins or currency contained in the deposit or may refuse to
give credit for the contaminated currency or mutilated coins or currency,
and we will charge the account for the amount of any contaminated
currency the Federal Reserve Bank has refused to process for which
your account was given provisional credit. We have no liability for the
amount of any contaminated currency or mutilated coins or currency
included in any deposit and not contained in a separate marked deposit
bag as required above.
Controlled Disbursement Service
1. UDescription of the CDA ServiceU. The SunTrust Controlled
Disbursement Account or “CDA” service allows you to improve control
over daily cash requirements by allowing you to defer funding of check
disbursements until the day they are presented for payment.
2. UOperation of the CDA ServiceU.
(a) As a part of our implementation of your setup for the CDA
service, we will provide you with a set of specifications that checks
issued against a disbursement account must meet. These
specifications include specific routing number and magnetic ink
encoding requirements that must be met in order for the CDA service to
operate correctly. Using checks that do not meet these specifications
can result in daily out-of-balance situations in a disbursement account.
You must give us voided sample checks for each disbursement account
so that we may test those checks for compliance with the specifications.
Once we complete our testing, we will send you a notice that your
sample checks are acceptable or that they fail to meet our
specifications. You may not issue checks against a disbursement
account until you have received a notice from us that your sample
checks for that account are acceptable.
(b) On each banking day, we will make information available
to you regarding the total dollar amount of all checks that have been
presented for payment against each disbursement account that day
before the controlled disbursement reporting time(s) that we separately
disclose to you from time to time. We will make this information
available to you through one of our online services.
(c) You understand that we provide presentment information
to you solely to assist you in funding your disbursement accounts. The
CDA service does not relieve you of the obligation to fund your
disbursement accounts appropriately. As a result, you agree to have
sufficient available funds on deposit in each disbursement account to
pay all checks presented against that account, whether or not we have
notified you of the presentment of those checks. If the presentment
information is not available by the reporting time, you should consider
using an estimate based on historical information. The disbursement
account may be funded by a transfer of available balances from another
account with us, a wire transfer of funds from an account at another
financial institution, or an approved line of credit from us. Whatever
method is used, we must receive that funding by the funding deadline(s)
that we separately disclose to you from time to time. In the event a
disbursement account is not adequately funded on the date of
presentment, we may return items for which there are not sufficient
funds or, if we have previously approved a line of credit to you, we may
extend credit to you in an amount sufficient to cover such items.
(d) If any ACH or other electronic debits are presented
against a disbursement account, those debits may not be included in the
information we provide you regarding daily presentments. In that event,
you must adjust your funding of the disbursement account to cover the
ACH or other electronic debits.
Exhibit G - SunTrust Treasury Management Master Agreement
and Terms and Conditions
TREASURY MANAGEMENT
TERMS AND CONDITIONS
Page 27 of 63
(e) You agree and understand that the purpose of the CDA
service is to improve control over daily cash requirements by allowing
you to defer funding of check disbursements until the day they are
presented for payment, and not to delay the collection of funds by the
payees.
3. UDuration and Changing of OptionsU. Once you have confirmed
a CDA service profile and we have included the information from it in
our implementation of your setup for the CDA service, it remains in
effect until (a) your use of the CDA service or the agreement is
terminated or (b) you confirm a CDA service profile that adds to or
deletes from your previous selections and we have had a reasonable
time to act on it before we receive the relevant checks.
4. UTerminationU. We may terminate the CDA service immediately
by giving you written notice of the termination. You may terminate the
CDA service by giving us written notice of the termination, provided that
any termination by you will not be effective until we have had a
reasonable time to act on your notice.
Controlled Payment Service
1. UDescription of the CPR ServiceU. The SunTrust Controlled
Payment or “CPR” service allows you to give us instructions to return
certain checks that you believe may be fraudulent or not validly issued.
Details regarding CPR’s functionality and certain formatting and other
technical requirements that you must follow when using the CPR service
are provided in the CPR reference materials as we update them from
time to time.
2. UOperation of the CPR ServiceU.
(a) You must transmit an issue file to us on each day on
which you have issued any checks against any account that is included
in your setup for the CPR service. We must receive that issue file by
the issue deadline set forth in the CPR reference materials and it must
contain all of the information set forth in the CPR reference materials
with respect to each check you issued that day. You may send us a
separate issue file for each account, or you may send us an aggregate
issue file for all of the accounts that are included in your setup for the
CPR service. Once we have received your issue file, we will compare
the information in that issue file with the information in our systems with
respect to checks (A) that have been presented to us through normal
check clearing channels for payment against the relevant account, and
(B) for which we have provisionally settled but have not yet posted to
the relevant account. You authorize us to post, finally pay and charge
against the relevant account, each check that matches the information
in your issue file. We will notify you of each presented check that is not
included in the issue file that we received from you or that reflects
information that does not match the information in the issue file we
received from you. The checks that are not listed or for which the
information does not match are referred to as “mismatched checks.”
You must instruct us to pay or return each mismatched check by the
payment decision deadline set forth in the CPR reference materials.
Your instructions must contain all of the information with respect to each
mismatched check set forth in the CPR reference materials. You may
elect one of two ways for us to deal with mismatched items if you fail to
give us a pay or return decision by the payment decision deadline.
Under the “return default” option, you authorize us to return unpaid each
mismatched check unless we receive an instruction from you to pay it
before the payment decision deadline. Even if you select a return
default option, we may post, finally pay and charge against the relevant
account a mismatched check you haven’t decisioned (A) as otherwise
provided below, for mismatched checks presented over the counter in
one of our branches and (B) mismatched checks that we believe in good
faith result solely from encoding errors. Under the “pay default” option,
you authorize us to post, finally pay and charge each mismatched check
against the relevant account unless we receive an instruction from you
to return it before the payment decision deadline. Your election of these
options is reflected in your CPR service profiles as they are in effect at
the relevant time. We may give you the option of not providing
information in your issue file on one or more check attributes(such as
the payee's name) that the CPR service is capable of matching. Of
course, not matching all available check attributes increases the risk
that a fraudulent check will not be detected as a mismatched check. As
a result, if you make the business decision of not providing information
in your issue file with respect to all available check attributes, you agree
that, in addition to the other limits on our liability provided in these CPR
terms and conditions, we will not be liable for paying any check that is
fraudulent with respect to the attributes for which you failed to provide
us information, so long as we otherwise satisfied our duty of care with
respect to the other aspects of the CPR service in processing that
check.
(b) As part of the CPR service, we can also make your issue
files available to our branches to assist our tellers in cashing checks.
This is referred to as “teller access.” If a check presented for payment
over the counter in one of our branches against an account that uses
teller access (i) is presented before we have received and processed an
issue file for such check or (ii) is a mismatched check, we will attempt to
obtain approval for payment of the mismatched check by calling one of
the people you have designated as a “telephone representative” for the
relevant account as reflected in your CPR service profiles as they are in
effect at the relevant time. We will make one attempt to call each
telephone representative for the relevant account until we have reached
one of them. Each telephone representative is authorized to instruct us
to pay or return any mismatched check. If the telephone representative
we contact instructs us to pay the check, then you authorize us to post,
finally pay and charge the check against the relevant account. If we are
unable to contact a telephone representative, or the telephone
representative we contact does not instruct us to pay the mismatched
check, then you authorize us to return the check to the person
presenting it to us. Our documentation showing that we contacted or
attempted to contact your telephone representatives will be conclusive
evidence that we took the reflected action. Fraud involving checks
presented to tellers for cashing is a common form of check fraud. Using
our teller access service is a good way to defend against that form of
fraud and we strongly encourage you to take advantage of it. However,
use of the teller access service is not mandatory and you may make a
business decision to opt out of its use. Of course, opting out of the
service increases the risk that a fraudulent check may be cashed over
the counter in one of our branches. As a result, if you make the
Exhibit G - SunTrust Treasury Management Master Agreement
and Terms and Conditions
TREASURY MANAGEMENT
TERMS AND CONDITIONS
Page 28 of 63
business decision to not name at least one telephone representative for
each account for which you have elected the CPR service, (A) this will
be reflected in your CPR service profiles as they are in effect at the
relevant time, (B) you will be deemed to have opted out of the teller
access service for that account and (C) you agree that we will not have
any liability for paying any check presented over the counter in one of
our branches, whether or not such check bears a forged or unauthorized
signature or is counterfeit, altered or otherwise fraudulent or not validly
issued, so long as we otherwise process that check in accordance with
our standard check cashing procedures.
3. UTransmission of InformationU. We will transmit information
regarding mismatches to you by using certain of our online services.
You must transmit your issue files and your pay or return decisions to us
by using certain of our online services. Your issue files and pay or
return decisions must be in a format we have approved. If the relevant
online service is not available, then we will transmit the relevant
information to you by facsimile at the facsimile number listed for the
relevant authorized representative on your CPR service profiles as they
are in effect at the relevant time and you must transmit your issue files
and/or your pay or return decision to us by facsimile at the facsimile
number we specify.
4. ULimits on Our LiabilityU. You acknowledge that we will rely
completely on information and instructions you give us in providing the
CPR service to you and that we are not required to inspect any attribute
of a check (other than those included in the relevant issue file) that is
processed through the CPR service. As a result, you agree that, in
addition to any other limitations on our liability under the agreement, we
will not have any liability for (a) following instructions we receive from
any person we believe in good faith is one of your authorized
representatives or telephone representatives or (b) paying or returning
any check in accordance with the terms of this these CPR terms and
conditions, including any check that (i) bears a forged or unauthorized
signature or is counterfeit or otherwise not validly issued or (ii) is altered
or otherwise fraudulent with respect to an attribute that the CPR service
is designed to match. Moreover, you acknowledge that the CPR service
is not a substitute for our stop payment service and you agree not to
report an item as “void” if you have released the item. Finally, you
understand and agree that the purpose of the CPR service is to improve
reconciliation of checks and eliminate traditional stop payment
procedures, and not to delay the collection of funds.
5. USuspension of ServiceU. You agree that you will be in material
breach of these CPR terms and conditions if you repeatedly fail to meet
any of the deadlines described in the CPR reference materials or have
an excessive number of checks not reported on your issue file for the
CPR service or for which the information is not consistent with our
information on checks that have been presented against the relevant
account. In addition to any other rights we may have under this the
agreement or applicable law, we may immediately suspend your use of
the CPR service.
Electronic Data Interchange
1. UDescription of the EDI Service(s)U. Electronic Data
Interchange or “EDI” refers to the electronic exchange of payments,
payment-related information and other financial data in formats that
meet agreed standards. The EDI services that we offer fall into three
categories: (i) payment initiation or “integrated payables,” (ii) payment
receipt or “electronic receivables delivery,” and (iii) financial reporting
services. Each is described below:
(a) Our integrated payables EDI service allows us to accept
an electronic file from you that is used to initiate entries through our
ACH origination service and/or create paper checks through our
enterprise payment processing service. We do not create or maintain
service profiles for this service.
(b) Our EDI reports transmission service allows us to send
you a formatted text report or electronic file to report payment and
payment-related data from our ACH origination service, scannable
lockbox service and/or wholesale lockbox service to you in various
formats.
(c) Our EDI account analysis service allows you to send and
receive electronic files to support our account reconciliation, controlled
payment and positive payment services (both issue and paid item files),
our ACH fraud control service (authorization records) and our account
analysis service.
2. UTechnical Requirements and Underlying ServicesU. Files we
receive from you or send to you must be in a format that we have tested
and agreed to and must be sent or received by the deadlines specified
for the relevant service that we separately disclosed to you so that we
can perform the necessary edits and forward the files for the relevant
payment or information purposes. The terms and conditions for each
service that is utilized through an EDI file continue to apply.
Enterprise Payment Processing Service
1. UDescription of the EPP ServiceU. The SunTrust enterprise
payment processing or "EPP" service is a service where, in accordance
with your instructions and servicing guidelines as confirmed by your EPP
service profile, we will print and disburse checks and/or create and
transmit entries to settle through the Automated Clearing House (“ACH”)
Network to pay your designated payees. We utilize a system developed
and managed by a vendor in providing the EPP service. As a result, you
agree that each reference to “we,” “us” and “our” in any provision in the
agreement will, with respect to the EPP service, be deemed to include
our vendor. Details regarding the functionality of the EPP service, file
delivery methodology and certain formatting and other technical
requirements that you must follow when using the EPP service are
Exhibit G - SunTrust Treasury Management Master Agreement
and Terms and Conditions
TREASURY MANAGEMENT
TERMS AND CONDITIONS
Page 29 of 63
provided in the EPP reference materials as we update them from time to
time.
2. UProcessing of PaymentsU. Once we have completed our
implementation of your setup for the EPP service and you have
confirmed your EPP service profile you may use the EPP service.
(a) For each payment entry included in a data file (“payment
data”) you transmit to us, we will print and disburse a check in U.S.
dollars (or Canadian dollars if so indicated), or create and transmit an
ACH credit entry, as reflected in your EPP service profile. Unless you
specifically instruct us to process the entry as an ACH entry, we will
process the entry as a check. If we have difficulty in establishing an
ACH credit entry for a payment we will default to a check entry if
sufficient information is available. Each payment data file must follow
the formatting, other technical requirements, and file delivery
methodology that we have established with you in our implementation of
your setup for the EPP service, as evidenced by our records, or that we
may otherwise designate in the reference materials from time to time.
You acknowledge that sending entries by ACH will result in different
obligations and liabilities for you with regard to the legal and regulatory
environment for electronic funds transfers as compared to the legal and
regulatory environment for checks.You will be solely responsible for
ensuring 1Teach check entry complies with the terms and conditions
governing the account on which the check entry is drawn, whether
maintained with us or any other financial institution1T.
(b) Each check printed for a payment entry in a payment
data file will be printed in accordance with the format specifications for
each check, which we established with you in our implementation of your
setup for the EPP service, as set forth in the sample check that you have
approved (or will approve during implementation). Each check will be
drawn on the account designated in the payment entry for that check in
your payment data file. You will be solely responsible for ensuring you
have sufficient funds in any account on which a check is drawn to fund
all checks we print and disburse. We will not have any responsibility for
verifying whether there are sufficient funds in an account, whether
maintained with us or any other financial institution, when we print and
disburse any checks. If you designate multiple signers for checks drawn
on a SunTrust account, the multiple signer requirement is for your
internal purposes only and does not impose any obligation, duty, or
liability on us. We will supply all standard check stock and other
materials, which will be billed through your analysis statement. Non-
standard check stock must be approved for use by us and will be
purchased on your behalf and inventory will be managed by us with
appropriate charges included in your analysis statement.
(c) We will disburse printed checks either by first-class mail
or by courier arranged by us or you. If you elect to have printed checks
disbursed by first-class mail, we will deliver checks to the United States
Postal Service, with appropriate postage paid. Any checks we print that
you elect to have delivered to your courier will be available for pickup at
the operation center designated by us, with shipping or delivery paid for
directly by you. You will be responsible for paying the amount charged
by us for postage and courier service arranged by us in connection with
your use of the EPP service, and such charges will be included in your
analysis statement. We may increase the amount charged for postage
and courier services at any time immediately upon an increase in the
cost of postage or courier services.
(d) We conduct the check-printing services provided for
herein in a secure location accessible only to authorized personnel to
whom access is granted in connection with their job responsibilities.
Moreover, we will take reasonable steps to (i) prevent unauthorized use
of your check stock and signature facsimiles and (ii) preserve the
confidentiality of your payment data once in our possession.
(e) If you elect to have the payment for an entry in your
payment data file made by ACH, you will be the originator of the ACH
entry we create from your payment data file, whether such payment data
is transmitted to us through one of our online services or a designated
website. In order to elect ACH payments as part of the EPP service, we
must have agreed to provide you ACH origination service and you must
have confirmed a service profile for ACH origination service. Each ACH
entry created in accordance with your payment data file will be settled to
one of the settlement accounts designated in your ACH origination
service profile. Except as otherwise provided in these EPP terms and
conditions, the terms and conditions for the ACH origination service will
govern each entry which, in accordance with your payment data file, we
create, format and transmit to settle through ACH, including without
limitation, those relating to exposure limits and delays or suspension of
processing.
(f) Remittance data included with your payment data file
may be printed with the corresponding check or made available at our
designated website or by separate mailing for ACH entries to the payee
at the address provided by you in your payment data file. Remittance
data may be made available to the payee at our designated website
through the online remittance reporting feature of the EPP service as
defined in the reference materials. If you elect to use the online
remittance reporting feature, you must provide the payee’s contact and
identification information to us. You are solely responsible for notifying
your payees that the online remittance information will be available and
providing your payees access instructions for the designated website as
provided for in Section 9, Payee Access.
3. UTransmission of Payment Data FileU. You must transmit your
payment data file to us by using one of our online services as defined in
the reference materials. You must transmit your payment data file to us
by the cut-off deadline we have established in your EPP service profile.
Your payment data may not be processed or processing may be delayed
if you submit your payment data file after the cut-off time or on a day
other than as provided in your EPP service profile. If you wish to make a
change to your payment data file (other than adding one or more
payment entries), including changes in formatting or technical
requirements, adding an account, or changing the settlement account for
a payment entry, you must test the changes with us, to our satisfaction,
before transmitting a file of payment data containing the changes.
Failure to test a payment data file that has been changed prior to
submitting the file to us may result in your payment data not processing
or the processing being delayed. In the event we experience difficulties
receiving or accessing your payment data files, the parties shall
cooperate with one another's efforts to access the payment data
Exhibit G - SunTrust Treasury Management Master Agreement
and Terms and Conditions
TREASURY MANAGEMENT
TERMS AND CONDITIONS
Page 30 of 63
promptly. We will maintain a copy of all payment data as provided for in
the reference materials. Each time you submit a payment data file, we
will notify you by email when we receive the file. You must access the
designated website or one of our online services, as more specifically
described in your EPP service profile and verify the control totals, as
more specifically described below and the accuracy of each payment
entry included in your payment data. Once you have verified the control
totals and the accuracy of the payment data, you will release your
payment data files for processing. All payment files will remain
suspended until released by you. You are responsible for payment
entries included in data files that you release for processing, even if the
payment entry is a duplicate of another payment entry or otherwise is
submitted by you in error. We are under no obligation to determine if a
payment data file or any payment entry in a payment data file is a
duplicate of a previously submitted payment data file or payment entry.
You agree that our records of payment data files you release for
processing will be deemed correct and will control in the event of any
dispute regarding a payment data file or payment entry in a data file.
4. UCancellation Instructions.U We have no obligation to honor or
process any request to cancel the processing of any of your payment
data, to amend any payment data, to pull from disbursement a check
printed, or cancel any ACH file created, in accordance with your
payment data file and EPP service profile. As an accommodation to you,
however, we will use good faith efforts to honor your request to cancel
the processing of a payment data file or a payment entry in a payment
data file or pull any check printed from disbursement, if your request
complies with the security procedures and we receive the request at a
time and in a manner that gives us a reasonable opportunity to act on it
prior to printing or disbursing any checks or prior to creating or
transmitting any ACH entry. We are not liable if we are unable to honor
your request to cancel the processing of a payment data file or a
payment entry in a payment data file or to pull a printed check prior to
disbursement. You agree to reimburse us for any expenses we may
incur in attempting to honor any such requests.
5. USecurity Procedures.U You agree to comply with the following
security procedures in using the EPP service and agree that these
security procedures are commercially reasonable.
(a) Online Services. For a payment data file that is
transmitted to us through one of our online services you are required to
comply with the security procedure for that online service as defined in
the reference materials. During our implementation of your setup for the
EPP service, you must designate a security administrator for the online
service. The security administrator will have full access rights as more
fully described in the reference materials.
(b) Control Totals. Each time you submit a payment data file,
we will notify you by email when we receive the file. Upon receipt of this
email, you must access our online services, as more specifically
described in your EPP service profile, and verify the number of check
print entries, the number of ACH credit entries, the aggregate dollar
amount of all ACH credit entries and the aggregate dollar amount of all
check entries (the “control totals”). In addition, you must submit a
transmittal form to us indicating the total amount of ACH credit entries in
the payment data file.
(c) Cancellations. Instructions canceling a payment data file
or any payment entry in a payment data file or requesting that any check
created be pulled prior to distribution must be in writing and transmitted
to our EPP staff as indicated in the reference materials. We may verify
or authenticate any of these instructions by any means we believe to be
reasonable in the circumstances, but we are under no obligation to do
so. We will have no liability for acting on any of these instructions we
believe in good faith to have been given by one of your authorized users.
(d) Payee Access. Before a payee can access our online
remittance reporting feature or vendor enrollment feature, that payee
must register in the designated website, using access instructions
provided by you. Once registered, the payee will choose its own user id
and password.
6. URisk of Delivery.U We shall have no responsibility for any
checks once delivered to the United States Postal Service or a courier.
You assume all risks associated with delays caused by complications
arising in the transmission of payment data files and delays in postal
service or courier service, except when such delays are caused by our
failure to provide the checks by the delivery time or to transmit an ACH
entry by the appropriate ACH processing cut off time, provided you
submitted the payment data for such payments to us in a timely manner.
7. ULimitation of LiabilityU Notwithstanding anything herein to the
contrary, we shall have no liability with respect to a check issued or ACH
entry transmitted in accordance with the services described in these
EPP terms and conditions, conforming to the payment data or after the
period during which we must maintain the payment data with respect
thereto. In addition to any obligation you have to us under the master
agreement or the general terms and conditions, you agree to be
responsible for any and all claims, expenses, costs, or liabilities arising
out of the issuance of a payment against a payable in dispute or not yet
due and payable.
8. UCreation of Issue File for Positive Pay, Account Reconciliation,
or Controlled Payment Service.U You may elect for the printed check
information included in your payment data file to be used by us to create
a Positive Pay, Account Reconciliation or Controlled Payment issue file
on your behalf to be used in connection with one of those services. If
you make this election, we must have agreed to provide you the
applicable Positive Pay, Account Reconciliation or Controlled Payment
service and you must have confirmed a service profile for the service. By
making this election, you authorize us to create an issue file on your
behalf on each day on which checks are printed against any SunTrust
account that is included in your setup for Positive Pay, Account
Reconciliation or Controlled Payment service. Each issue file and your
use of the Positive Pay, Account Reconciliation or Controlled Payment
service is governed by the terms and conditions for each service,
including without limitation those relating to limits on our liability and
suspending your use of the service.
9. UPayee Access.U Payees have access to several features of
EPP service through a designated website.
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and Terms and Conditions
TREASURY MANAGEMENT
TERMS AND CONDITIONS
Page 31 of 63
(a) Online Remittance Reporting Feature-before a payee can
access our online remittance reporting feature, that payee must register
in the designated website, in compliance with the security procedures
referenced herein. The payee’s access and use of the website shall be
subject to the terms and conditions posted at the website. Through the
website, registered payees may utilize the online remittance reporting
feature to view and download documents and information in connection
with payments, including remittance data and statements. Documents
and information will be available to the payee through the online
remittance reporting feature for the number of days provided in the EPP
reference materials. Payees will be notified by email when new
documents and information are available online. The payee will be
deemed to have received any email sent by us to the email address
reflected at that time in the payee’s registration information in the
designated website. We are not responsible for undelivered emails.
(b) Vendor Enrollment- under the vendor enrollment feature,
a registered payee may provide notice through the website to receive
payments by ACH rather than by check. This election is for your
information and we have no duty to comply with your payee’s election to
receive payments by ACH. 1TThis election is not available for payments to
a consumer account, as defined in the NACHA Operating Rules. We will
notify you if the payee 1Tprovides notice through the website1T to receive
payments by ACH. If you approve such election, you1T2T must instruct us to
make 1T2Tsuch payments by ACH in your payment data file.
(c) EPP Vendor Services-you or your payees may elect to
obtain additional services directly from our EPP vendor, such as, but not
limited to, data download capabilities. SunTrust is not a party to
providing additional services and is not responsible for any obligations or
liabilities that may arise in the course of our vendor providing those
additional services to you or your payees.
Image Cash Letter Service
1. UDescription of the ICL Service. UThe SunTrust Image Cash
Letter or “ICL” service is intended to allow you to transmit to us for
deposit files of electronic images of batches of checks (and associated
information describing each check) and check total information, each file
an “image cash letter,” in place of forwarding the original checks to us
for deposit. Details regarding ICL’s functionality and certain formatting
and other technical requirements that you must follow when using the
ICL service are provided in the “ICL reference materials” as we update
them from time to time. The ICL service is intended for transmission of
your electronic images and associated information in one file, not as
separate transmissions. The ICL service may also encompass image
quality analysis adjustments, image integrity analysis adjustments,
duplicate item or duplicate file adjustments and return item adjustments
(all as defined in the ICL reference materials) being sent to you. The
ICL service may not be used outside the United States without our prior
written approval or to transmit an electronic image of a remotely created
check (as that term is defined in Regulation CC). These ICL terms and
conditions do not otherwise affect any other agreement between you
and us relating to deposits of original checks.
2. UOperation of the ICL ServiceU. You may use the ICL service
with respect to the account(s) identified in your ICL service profiles as
they are in effect at the relevant time and that we have included in our
implementation of your setup for the ICL service.
(a) Each electronic check image included in an image cash
letter is an “item” as defined in Article 4, Section 104(a)(9) of the
Uniform Commercial Code as adopted in the state whose laws govern
this agreement and a “check” as defined in Section 229.2(k) of the
Regulation CC, which must be an exact image of the front and back of
the original check with full-field magnetic ink character recognition
(MICR) line encoding (absent the amount). You should endorse the
original check prior to image capture and you must provide an electronic
endorsement record in accordance with the ICL reference materials,
which are based on our interpretation of the relevant American National
Standard Institute (ANSI) standards. Each image cash letter must be
formatted, including the batching of images, as provided in the ICL
reference materials. To be eligible for processing, an electronic check
image must meet the items eligible for exchange requirements as
outlined in the ICL reference materials. At a minimum, the item must be
a negotiable item and all characters in all MICR fields present on the
document must be readable. This will allow you to capture the
information required for the image cash letter. It is not acceptable to
pass digit errors (represented by an * within a MICR field) on a file
forwarded to us. All fields on the MICR line of an electronic check
image must be repaired prior to forwarding any files to us. You warrant
that any repair of the MICR line fields will be repaired correctly.
(b) You must transmit each image cash letter to us through
one of our online services which support the transmission of image cash
letters. To submit an image cash letter to us through an online service,
you are required to comply with the security procedures for that online
service. Any image cash letter transmitted to us in accordance with
those security procedures will be deemed an image cash letter of yours,
whether or not you actually authorized it. Transmission times, image file
receipt times, other applicable deadlines and transmission locations are
set forth in the ICL reference materials and/or your ICL service profiles
as they are in effect at the relevant time.
(c) Each image (and associated information regarding a
check) included in an image cash letter must meet our quality standards
for processing an image for deposit as described in the ICL reference
materials. Those standards are referred to in these ICL terms and
conditions as the “ICL standards.” We may add to or change the ICL
standards at any time immediately upon notice to you. Once we receive
your image cash letter, as the bank of first deposit, our systems will
process each image and associated information included in that image
cash letter that are on-us items to determine if all images and
associated information satisfy the ICL standards for qualified image
cash letters. Also, if your imaging process does not produce acceptable
images you will be required to use our unqualified ICL service that
performs image quality analysis and image integrity analysis on all items
Exhibit G - SunTrust Treasury Management Master Agreement
and Terms and Conditions
TREASURY MANAGEMENT
TERMS AND CONDITIONS
Page 32 of 63
in each image cash letter. This may result in requiring an earlier image
file receipt time for your unqualified image cash letter. All image cash
letters are also subject to duplicate item and duplicate file detection. If
an image and associated information satisfy the ICL standards, the ICL
system will accept them. If the ICL system determines an image or
associated information does not satisfy the ICL standards, the ICL
system may reject the nonconforming image or duplicate item, which
shall mean those items are sent back to you for reasons of poor quality,
missing images or duplicate items. A summary debit adjustment will be
made to your account and a debit advice will be sent to you. Also you
may request that the list of rejected images which failed to meet the ICL
standards or were found to be duplicates be transmitted through one of
our online services to your designated contact identified in your ICL
service profiles as they are in effect at relevant time. In addition, any
image and associated information included in an image cash letter must
satisfy the quality standards of the Federal Reserve Bank or other
collecting bank to which we have forwarded an image and associated
information for collection, the “collecting bank quality standards.” All
check images which fail to meet collecting bank quality standards will be
sent to you as a return advice with attached image for each item. There
are no specific timelines for these types of adjustments, but they are
usually completed within 30 business days of deposit. If an image is
rejected for failing to meet the ICL standards or the collecting bank
quality standards, you must take corrective action to either recapture the
image and associated information and submit it in a new image cash
letter or submit the original check for deposit. Once you have
transmitted an image cash letter to us, you may not cancel it unless we
have rejected the file. If more than two percent of the images and
associated information included in an image cash letter fail to meet the
ICL standards, the entire file may be rejected, which will require you to
resubmit that image cash letter.
(d) In using the ICL service, you agree to use formats as
indicated below, which may be amended from time to time.
(i) DSTU X9.37 – 2003 TIFF 6.0 CCITT Group IV black
and white (Images attached) Paper will be truncated at your location
(ii) Image – Same as above
(iii) Companion Document for exchange – Federal
Reserve Bank Adoption of DSTU X9.37 (2003) Image Cash Letter
Customer Documentation (Excluding portions referring to Fed specific
details)
All files must be sent to us through our Online File Transfer service.
You must send a notification to the designated e-mail address as
identified in the ICL reference materials, which must include your name,
image cash letter file total dollar amount and image cash letter file total
item count. Federal Reserve Bank's Image Quality Assurance (IQA)
Settings should be adhered to at minimum. This includes the
parameters of images relative to length, height, corners, document
skew, darkness/lightness, noise and image size compression. These
image quality standards are provided in the reference materials.
Authentication will be conducted through the Online File Transfer log in
process utilizing security procedures and authorization codes. Image
Quality Adjustment Detail reporting will be facilitated through the use of
our Online Courier service if you elect to use that service.
(e) Once we have accepted an image cash letter for deposit,
we will use each image and associated information included in that
deposit to process it as an electronic item or, at our option; to create a
substitute check. If we elect to process an image and associated
information as an electronic item, we will process that image for deposit
to your account and forward it for presentment to the drawee bank (as
defined below) through the electronic item collection channels that we
would otherwise use to present an electronic item to the drawee bank.
If we use an image and associated information to create a substitute
check, we will process that substitute check for deposit to your account
and forward it for presentment to the financial institution on which the
original check was drawn or through or at which it was payable (that
institution is referred to in these ICL terms and conditions as the
“drawee bank”) through the check collection channels that we would
otherwise use to present a check to the drawee bank. In either event,
your deposit will be subject to the terms of any agreement we have with
other financial institutions relating to the presentation of electronic items.
We will make funds for each electronic item or substitute check that we
process for deposit to your account available to you under the enhanced
schedule that applies to your account on the business day that we
received the file containing a conforming image of that check.
(f) We must receive your image cash letter by the image file
receipt times set forth in the ICL reference materials. In that regard, we
are not liable for any delays or errors in transmission of an image cash
letter. If the online service you use to transmit your image cash letter is
not available, you must make your deposits by another method, such as
delivery to us of appropriate CD-ROM(s) containing the image cash
letter or delivery of the original checks to us. You may not transmit to us
an image cash letter which exceeds 20,000 items per file if you are
using the unqualified ICL service or 40,000 items per file if you are using
the qualified ICL service. You may send more than one image cash
letter each day prior to your image file receipt time.
(g) You agree to make original checks available to us
promptly upon our reasonable request. You agree that you will not
capture more than one image of (or associated information regarding)
any original check and that you will not negotiate, deposit or otherwise
transfer any original check to us or to any other person or entity after
you have captured an image of (or associated information regarding) it.
You also agree that (i) you will not transmit an image of (or associated
information regarding) any original check to us more than once (unless
that item has been returned to you by us for corrective action), (ii) you
will not transmit an image of (or associated information regarding) any
original check to us that you previously transmitted to any other person
or entity, (iii) you will not transmit an image of (or associated information
regarding) any original check to any other person or entity after you
have transmitted it to us; (iv) you will not transmit an image of (or
associated information regarding) any original check to us if that check
has been used as a source document for the initiation of an ACH or
other electronic debit; and (v) you will not use any original check as a
source document for the initiation of an ACH or other electronic debit
after you have transmitted an image of (or associated information
regarding) that check to us. You agree to use commercially reasonable
Exhibit G - SunTrust Treasury Management Master Agreement
and Terms and Conditions
TREASURY MANAGEMENT
TERMS AND CONDITIONS
Page 33 of 63
security procedures to safeguard the original checks, images and
associated information in your possession.
(h) If there is any discrepancy between check image count
and/or the total dollar amount of the deposit reflected by you in an
image cash letter and our count of check images and/or the total dollar
amount of images included in the image cash letter, our count will
control and the image cash letter may be rejected. We will also debit
your account and send you a deposit adjustment notice for any image
which was rejected by us for failing the ICL standards, was determined
to be a duplicate, or rejected for failing the collecting bank quality
standards, or returned by any collecting bank for any reason.
(i) We may reject, impose a special fee and/or delay
processing of any image cash letter if (i) the image cash letter was not
prepared and formatted in accordance with the requirements set forth in
the ICL reference materials, (ii) the number of check images in the
image cash letter or the total dollar amount of the image cash letter
does not match what is included in the Cash Letter Control Record for
your image cash letter, and (iii) the number of check images in an image
cash letter file transmitted to us exceed the number permitted under
these ICL terms and conditions.
(j) Returns will be handled by printing substitute checks and
returning them through existing return channels.
3. UYour Representations and WarrantiesU. You make all of the
representations and warranties to us with respect to each electronic
check image and associated information that you transmit to us that you
would have made if you had deposited the original check into your
account. In addition, you represent and warrant to us with respect to
each image of and associated information that you transmit to us that
(a) the image and associated information (i) accurately represent all of
the information on the front and back of the original check at the time
the image and associated information were captured and (ii) are
otherwise sufficient for us to satisfy our obligations as the truncating
and/or reconverting bank and (b) no person or entity will receive a
transfer, presentment or return of, or otherwise be charged for, (i) the
original check, (ii) an electronic item or substitute check that we create
from the image and associated information, or (iii) a paper or electronic
representation of the original check or of a substitute check that we
create from the image and associated information, such that the person
or entity will be asked to make a payment based on a check that it has
already paid.
4. Your ObligationsU In addition to any other obligation you have
to us, you agree to be responsible for any and all liabilities, claims,
damages, losses, demands, fines (including those imposed by any
Federal Reserve Bank, clearing house or funds transfer system),
judgments, disputes, costs, charges and expenses (including litigation
expenses, other costs of investigation or defense and reasonable
attorneys’ fees) which relate in any way to (a) the receipt by any person
or entity of (i) an electronic item, (ii) a substitute check or (iii) a paper or
electronic representation of the original check or the substitute check
that we create from a electronic check image and associated
information that you transmit to us, instead of the original check, or
(b) any encoding error on any check included in an image cash letter, or
(c) any duplicate item or duplicate file created or authorized by you, or
(d) the delayed processing of any returned items by any subsequent
bank for any items that were processed as electronic items, or (e) a
remotely created check being included in an image cash letter.
Image Cash Letter Service – Financial Institutions
1. UDescription of the ICL-FI ServiceU. The SunTrust Image Cash
Letter service for financial institutions or “ICL-FI” is intended to allow you
to transmit to us for deposit files of electronic images of batches of
checks (and associated information describing each check referred to
as “presentment notice”) and check total information, each file an
“image cash letter,” in place of forwarding the original pre-encoded
check deposits to us for deposit. Details regarding ICL-FI’s functionality
and certain formatting and other technical requirements that you must
follow when using the ICL-FI service are provided in the ECCHO Rules,
Section XIX and in the “ICL-FI reference materials” as we update them
from time to time. By using this service, you agree to be bound by the
Electronic Check Clearing House Organization Operating Rules referred
to as “ECCHO Rules” for these electronic image transactions and we
will sponsor your membership if you are not currently a member of
ECCHO. Unless otherwise agreed upon, you will be charged for the
ECCHO sponsorship fees. Unless otherwise indicated, terms used in
these ICL-FI terms and conditions shall have the meanings ascribed to
such terms in the ECCHO Rules. The ICL-FI service is intended for
transmission of your presentment notice and electronic images in one
file, not as separate transmissions. The ICL-FI service also
encompasses image quality analysis adjustments and return items
processing sent to you. The ICL-FI service may not be used outside the
United States without our prior written approval or to transmit an
electronic image of a remotely created check (as that term is defined in
Regulation CC). These ICL-FI terms and conditions do not otherwise
affect any other agreement between you and us relating to exchanges
under the ECCHO Rules or deposits of original checks.
2. UOperation of the ICL-FI ServiceU. You may use the ICL-FI
Service with respect to the account(s) that are identified in your ICL-FI
service profiles as they are in effect at the relevant time and that we
have included in our implementation of your setup for the ICL-FI service.
(a) Each electronic check image included in an image cash
letter is an “item” under the Uniform Commercial Code, a “check “ under
Regulation CC and an “item” under ECCHO Rules which must be an
exact image of the front and back of the original check with full MICR
line information. You must endorse the original check or the electronic
check image with the bank of first deposit endorsement in accordance
with the ANSI endorsement requirements, ECCHO Rules and ICL-FI
reference materials. Each image cash letter must be formatted,
including the batching of images, as provided in the ECCHO Rules and
the ICL-FI reference materials. To be eligible for processing, an
electronic check image must meet the items eligible for exchange
requirements as outlined in the ECCHO Rules, Section III (A). The
ECCHO Rules require, at a minimum, that the item be a negotiable item,
and all characters in all MICR fields present on the document must be
readable. This will allow you to capture the information required for the
Exhibit G - SunTrust Treasury Management Master Agreement
and Terms and Conditions
TREASURY MANAGEMENT
TERMS AND CONDITIONS
Page 34 of 63
image cash letter. Repair of the MICR line on documents in order to
make the items eligible for processing must be done with responsibilities
assigned as outlined in ECCHO Rules, Section III(B). It is not
acceptable to pass digit errors (represented by an * within a MICR field)
on a file forwarded to us. All fields on the document must be repaired
prior to forwarding any files. Repair of the MICR line fields will be
governed by ECCHO Rules.
(b) You must transmit each image cash letter to us through
one of our online services which support the transmission of image cash
letters. To submit an image cash letter to us through an online service,
you are required to comply with the security procedures for that online
service. Any image cash letter transmitted to us in accordance with
those security procedures will be deemed an image cash letter of yours,
whether or not you actually authorized it. Transmission times, Image
Ledger Cutoff times, other applicable deadlines and transmission
locations are set forth in the ICL-FI reference materials and/or your ICL-
FI service profiles as they are in effect at the relevant time.
(c) Each image of (and associated information regarding a
check) included in an image cash letter must meet our quality standards
for processing an image for deposit as described in the ECCHO Rules
and the ICL-FI reference materials. Those standards are referred to in
these ICL-FI terms and conditions as the “ICL-FI standards.” We may
add to or change the ICL-FI standards at any time immediately upon
notice to you. Once we receive your image cash letter, our systems will
process each image and associated information included in that image
cash letter that are on-us items to determine if that image and
associated information satisfy the ICL-FI standards. If an image and
associated information satisfy the ICL-FI standards, the ICL-FI system
will accept them. If the ICL-FI system determines an image or
associated information does not satisfy the ICL-FI standards, the ICL-FI
system may reject the nonconforming image, which shall mean those
items are sent back to you for reasons of poor quality or missing
images. Each day we will fax to your contact that you have designated
(in a form acceptable to us) the list of rejected images which failed to
meet the ICL-FI standards and this will be followed by a research and
adjustment debit advice. In addition any image and associated
information included in an image cash letter must satisfy the quality
standards of the Federal Reserve Bank or other collecting bank to which
we have forwarded an image and associated information for collection,
the “collecting bank standards.” All check images which fail to meet
Federal Reserve Bank quality standards will be returned as an advice
with attached image for each item via U.S. Mail. All check images which
fail to meet collecting bank quality standards will result in items coming
back in Return Item processing. If an image is rejected for failing to
meet the ICL-FI standards or the collecting bank standards, you must
either recapture the image and associated information and submit it in a
new image cash letter or submit the original check for deposit. Once
you have transmitted an image cash letter to us, you may not cancel it.
(d) Once we have received an image cash letter for deposit,
we will use each image and associated information included in that
deposit to create a substitute check or, at our option; process it as an
electronic item. If we use an image and associated information to
create a substitute check, we will process that substitute check for
deposit to your account and forward it for presentment to the financial
institution on which the original check was drawn or through or at which
it was payable (that institution is referred to in these ICL-FI terms and
conditions as the “drawee bank”) through the check collection channels
that we would otherwise use to present a check to the drawee bank. If
we elect to process an image and associated information as an
electronic item, we will process that image for deposit to your account
and forward it for presentment to the paying bank through the electronic
item collection channels that we would otherwise use to present an
electronic item to the paying bank. In either event, your deposit will be
subject to the terms of any agreement we have with other financial
institutions relating to the presentation of electronic items. We will make
funds for each substitute check or electronic item that we process for
deposit to your account available to you under the same schedule that
would have applied if you had deposited the original check to your
account on the business day that we received the file containing a
conforming image of that check.
(e) We must receive your image cash letter by the then-
current deadline set forth in the ICL-FI reference materials. In that
regard, we are not liable for any delays or errors in transmission of an
image cash letter. If the online service you use to transmit your image
cash letter is not available, you must make your deposits by another
method, such as delivery of the original checks to us. You may not
transmit to us an image cash letter which exceeds 20,000 items per file
if you are using the unqualified ICL service or 40,000 items per file if you
are using the qualified ICL service. You may send more than one image
cash letter each day prior to your image file receipt time.
(f) You agree to make original checks available to us
promptly upon our reasonable request. You agree that you will not
capture, nor will you allow any of your customers to capture, more than
one image of (or associated information regarding) any original check
and that you will not negotiate, deposit or otherwise transfer, or allow
any of your customers to negotiate, deposit or transfer, any original
check to us or to any other person or entity after you have or that
customer has captured an image of (or associated information
regarding) it. You also agree that (i) you will not transmit an image of
(or associated information regarding) any original check to us more than
once, (ii) you will not transmit an image of (or associated information
regarding) any original check to us that you or one of your customers
has previously transmitted to any other person or entity, (iii) neither you
nor any of your customers will transmit an image of (or associated
information regarding) any original check to any other person or entity
after you have transmitted it to us; (iv) you will not transmit an image of
(or associated information regarding) any original check to us if that
check has been used as a source document for the initiation of an ACH
or other electronic debit; and (v) neither you nor any of your customers
will use any original check as a source document for the initiation of an
ACH or other electronic debit after you have transmitted an image of (or
associated information regarding) that check to us. You agree to use
and cause your customers to use commercially reasonable security
procedures to safeguard the original checks, images and associated
information.
(g) If there is any discrepancy between check image count
and/or the total dollar amounts of the deposit reflected by you in an
image cash letter and our count of check images and/or the total dollar
Exhibit G - SunTrust Treasury Management Master Agreement
and Terms and Conditions
TREASURY MANAGEMENT
TERMS AND CONDITIONS
Page 35 of 63
amount of images included in the image cash letter, our count will
control and the image cash letter will be rejected. We will also debit
your account and send you a deposit adjustment notice for any image
which was rejected by us for failing the ICL-FI standards or rejected for
failing the Federal Reserve Bank quality standards or returned by any
collecting bank for failing its collecting bank standards.
(h) We may reject, impose a special fee and/or delay
processing of any image cash letter if (i) the image cash letter was not
prepared and formatted in accordance with the requirements set forth in
the ECCHO Rules and ICL-FI reference materials, (ii) the number of
checks images or batches of check images in the image cash letter, the
dollar amount of a batch of check images in an image cash letter or the
total dollar amount of the image cash letter does not match what is
included in the presentment notice for that image cash letter, and (iii) the
number of check images in all image cash letter files transmitted to us
on any banking day, exceed the number permitted under these ICL-FI
terms and conditions.
(i) Returns will be handled by printing substitute check
documents and returning them through existing paper return channels.
As a financial institution you act as the bank of first deposit (BOFD) on
all items you deposit with us. This will require you to place a BOFD
endorsement on all physical items deposited and/or a 26 record
containing the BOFD record on all image cash letter items deposited
with us. This endorsement must be in compliance with Regulation CC
regarding content and placement, ANSI x9.37 standard, and as
provided in ECCHO Rules Section XIX (E).
(j) As the BOFD, you are expected to be the primary agent
of resolution of all research items. As the BOFD, your organization has
total access to the clearing cycle of each item deposited with us. As
your clearing agent, we do not have access to all of the returns
information and as such we are less able to resolve all research items.
You may re-deposit indemnified copies of previously missing items with
us at any time through any depository channel.
3. UYour Representations and WarrantiesU. You make all of the
representations and warranties to us with respect to each electronic
check image and associated information that you transmit to us that you
would have made if you had deposited the original check into your
account. You further agree to the Sending Bank Warranties and
Indemnification as provided in ECCHO Rules Section XIX (M).
4. Your Obligations. In addition to any other obligation you have
to us, you agree to be responsible for any and all liabilities, claims,
damages, losses, demands, fines (including those imposed by any
Federal Reserve Bank, clearing house or funds transfer system),
judgments, disputes, costs, charges and expenses (including litigation
expenses, other costs of investigation or defense and reasonable
attorneys’ fees) which relate in any way to (a) the receipt by any person
or entity of (i) an electronic item, (ii) a substitute check or (iii) a paper or
electronic representation of the original check or the substitute check
that we create from a electronic check image and associated
information that you transmit to us, instead of the original check, or
(b) any encoding error on any check included in an image cash letter, or
(c) the delayed processing of any returned items by any subsequent
bank for any items that were processed as electronic items, or (d) a
remotely created check being included in an image cash letter.
Image Delivery Services
1. UDescription of the Image Delivery Services.U The image file
transmission feature for Image Delivery Services includes the delivery of
imaged items such as paid items, returned items, deposit tickets and
deposited items through the Online File Transfer service. The images of
the various items, as well as images or text files of account statements,
selected by you are downloaded and transmitted on a variety of time
frames. The CD-ROM feature for Image Delivery Services includes the
delivery of imaged items such as paid items, returned items, deposit
tickets and deposited items with an encrypted CD-ROM delivery process
available on a variable basis. The various items selected by you will be
imaged, MICR corrected, balanced, and posted before delivery. If any
deposited items are out of balance for an account (total of deposited
items does not match deposit ticket), then those deposited items will not
be included in any of the Image Delivery Services. You may also select
certain one-time historical CD-ROM services for any of the imaged
items, such as a one month CD-ROM, a twelve month CD-ROM or a
seven year archive CD-ROM.
2. USelection of Image Delivery ServicesU. You may select either
image file transmission or CD-ROM delivery method for the various
items selected by you with respect to the accounts that you have or may
in the future identify to us and that we have agreed to include in your
setup for the Image Delivery Services. Your selection for each account
is reflected in your Image Delivery service profiles, which may be
grouped under a lead account for all accounts capturing the same types
of images using the same delivery method. Details regarding these
Image Delivery Services, their functionality and certain requirements that
you must follow when using the Image Delivery Services are provided in
the Image Delivery reference materials as they are updated from time to
time.
(a) Image file transmission –after online delivery, you have
access to your imaged items along with indexed fields of information that
can be downloaded directly into your image archiving systems. Image
file transmissions are encrypted and are transmitted using File Transfer
Protocol (FTP). You must designate a contact responsible for receiving
or retrieving your image file transmissions. You will retrieve your image
file transmissions after setup on Online File Transfer service by using
the unique user ID and password assigned to your company. If you
elect for us to “push” your image file transmissions to you, you can
provide us the information needed to access your computer system to
deliver the files. We will send the URL address and the user ID and
password to the person you designate as your contact.
(b) CD-ROM - after delivery by express mail, you have
access to your imaged items along with indexed fields of information to
facilitate research and for long term archival purposes. CD-ROM images
can be retained on the CD-ROM or downloaded onto your computer.
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TERMS AND CONDITIONS
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You must designate a security administrator responsible for accepting
the software used to access the CD-ROM images. The CD-ROM will be
encrypted to protect your data during transit. We will assign encryption
codes that your security administrator will use to de-encrypt and access
the CD-ROM. Before you may use the CD-ROM Image Delivery
Service, you must have or obtain a computer and related software
materials necessary to access electronic images of (and associated
information regarding) checks that are imaged on the CD-ROM. As part
of providing the CD-ROM Image Delivery Service, our vendor will
sublicense the software and related materials to you that you need to
access electronic images of (and associated information regarding)
checks. The software and related materials are referred to as the
“software materials”. You must download the software materials and
install them on a computer that you will use in connection with the Image
Delivery Services.
(c) Security Procedures-you agree that the security
procedures noted above for the Image Delivery Services you select are
commercially reasonable. You are completely responsible for controlling
access to and maintaining the confidentiality of the security procedures,
authorization codes and encryption codes and you must promptly report
any breach of that confidentiality to us. You are also completely
responsible for the actions of your users to whom we or your security
administrator or your contact provide authorization codes or encryption
codes and any other person who has obtained access to your
authorization codes or encryption codes. You represent and warrant
that you will maintain commercially reasonable security procedures to
prevent unauthorized access to or any misuse of the imaged items or
misuse of the information contained in the imaged items once you have
received image file transmissions or CD-ROMs.
3. UImaged Items.U You agree that we will have no liability for any
missing image or if any image we capture is not legible. Our
responsibility for missing or illegible images is to use reasonable efforts
to provide a replacement image.
Online Bill Consolidator Service
1. UDescription of the OBC ServiceU. The Online Bill Consolidator
or “OBC” service enables you to receive remittance information
regarding payments sent to you through the online bill payment service
of any third-party online payment processor (each, an “online payment
processor”) that participates in the OBC service. You may use the OBC
service with respect to the accounts identified in your OBC service
profiles and the online payment processors that are identified in our
records, as those profiles and records are in effect at the relevant time,
and that we have included in our implementation of your setup for the
OBC service. Details regarding the OBC service’s functionality and
requirements that you must follow when using the OBC service are
provided in the OBC reference materials, as we update them from time
to time.
2. UEnrolling as a BillerU.
(a) You authorize us to enroll you as a biller for which
remittance information should be provided to us in each online bill
payment service identified in our records as they are in effect at the
relevant time using the information you give us in connection with our
implementation of your OBC setup. That information is referred to in
these OBC terms and conditions as your “biller profile.” You must
ensure that all information you give (or a third party on your behalf
gives) us or an online payment processor to enroll you as a biller or
otherwise for use in the online bill payment service of an online payment
processor is complete and accurate at all times and in all respects. If
you learn or have reason to believe that any such information is or may
not be complete and accurate in all respects, then you must notify us as
soon as reasonably practical and take such operational and other steps
as we or the applicable online payment processor reasonably require to
correct the information and appropriately adjust any sums remitted in
response to our reliance on the incomplete or inaccurate information.
(b) You represent and warrant to us that you do not owe any
outstanding amounts to an online payment processor and that you are
not currently using (and, so long as we are providing the OBC service to
you, will not use) the services of any other financial institution to enroll in
or otherwise obtain access to the online bill payment service of an
online payment processor.
(c) You agree to complete, sign and give us or the
applicable online payment processor all forms required to receive
payments and remittance information for payments processed through
an online payment processor’s online bill payment service, including an
ACH debit authorization form.
3. URemittance Files; Settlement; Reconcilement; PostingU.
(a) Once you have been enrolled as a biller in an online
payment processor’s online bill payment service and we have
completed our implementation of your setup for the OBC service, that
online payment processor will send us remittance information regarding
payments sent to you through that online payment processor’s online bill
payment service. After we receive that remittance information from an
online payment processor, we will reformat it in accordance with the file
formatting requirements we have agreed to with you and create a file of
such reformatted remittance information (each, a “remittance file”).
Unless an earlier deadline for an online payment processor’s online bill
payment service is provided in the OBC reference materials or any
guides, rules or other documentation (collectively, the "online payment
processor's documentation") governing participation in such online
payment processor’s online bill payment service as it is in effect at the
relevant time, we will send each remittance file to you no later than the
first banking day after the day we receive the relevant remittance
information from an online payment processor. You may designate (in a
form acceptable to us) whether we send your remittance files by (1)
appending them to your file of items processed in your wholesale or
scannable lockbox service setup, if you use either of those services, or
(2) as a separate transmission. You may elect (in a form acceptable to
us) to have remittance information from multiple online payment
processors included as separate batches in one file. You are solely
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TERMS AND CONDITIONS
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responsible for maintaining copies of all remittance files that we send or
otherwise make available to you.
(b) Each online payment processor will be solely responsible
for settling all payments sent to you through that online payment
processor’s online bill payment service and that are reflected in each
remittance file. The applicable online payment processor will do so by
sending one or more ACH credit entries to the account (each a
“settlement account”) included in our implementation of your OBC setup
that is identified as the settlement account for that online payment
processor in our records as they are in effect at the relevant time. Each
settlement for a payment credited to a settlement account is provisional
until the online payment processor receives final settlement from the
originator of that payment. All payments credited to a settlement
account, or otherwise owed to you, for payments sent to you through an
online payment processor’s online bill payment service are subject to
any rights that online payment processor may have to unwind
transactions and exercise setoff under that online payment processor’s
documentation.
(c) You are solely responsible for reconciling the remittance
information in each remittance file to the ACH credits you receive from
each online payment processor. If you are unable to reconcile the two,
you must notify us of the inconsistencies by the end of our banking day
on the day you receive the ACH credit. If you have notified us in the
time required, we will use good faith efforts to resolve any such
inconsistencies with the applicable online payment processor.
(d) You are solely responsible for posting each payment
reflected in a remittance file to the correct customer account in your
receivables system. Unless an earlier time for posting for an online
payment processor’s online bill payment service is provided in the OBC
reference materials or that online payment processor’s documentation,
you must electronically post each payment reflected in a remittance file
to your receivables system so that such payment is posted to the correct
customer account before your posting cut-off time on the calendar day
immediately following the date we received the remittance information
included in that remittance file from an online payment processor, as
reflected by the date in the file header information (the “file header
date”). If the immediately following calendar day is a holiday or
weekend day, you must post the payment on the immediately following
business day, and you must also backdate the time the payment is
shown to have been posted in your receivables system so that it reflects
it was posted before your payment posting cut-off time on the calendar
day immediately following the file header date.
4. UReturns; Refusals; ReversalsU.
(a) If you are unable to determine from a remittance file the
correct customer account to which a payment should be posted, then
(unless a shorter period for an online payment processor’s online bill
payment service is provided in the OBC reference materials or that
online payment processor’s documentation) you must complete your
research of the payment and post it to the correct customer account
within two banking days from the file header date of that remittance file.
You may not post the payment to a general ledger suspense account or
otherwise hold the payment beyond that period while you continue to
research the payment. If you have been unable to determine the correct
customer account and post the payment within that period, then (unless
a shorter period for an online payment processor’s online bill payment
service is provided in the OBC reference materials or that online
payment processor’s documentation) you must request (in a form
acceptable to us) that we return the payment and we must receive that
request no later than 5:00 p.m. ET (the “returns deadline”) on the
second banking day after the file header date of that remittance file and,
if required by the applicable online payment processor, notify the
applicable online payment processor directly by the time specified in
such online payment processor’s documentation. If a remittance file
contains incorrect information, but you are able to post the payment,
then (unless a shorter period for an online payment processor’s online
bill payment service is provided in the OBC reference materials or that
online payment processor’s documentation) you must give us a notice
(in a form acceptable to us) that describes what was incorrect in the
remittance information no later than the returns deadline on the day that
is two banking days after the file header date of that remittance file and,
if required by the applicable online payment processor, notify the
applicable online payment processor directly by the time specified in
such online payment processor’s documentation.
(b) You may not refuse to accept a payment that one of your
customers sends you through an online payment processor’s online bill
payment service unless (i) the customer account data for that payment
is incorrect or incomplete or (ii) you have elected not to accept any
payments from that customer. If you are not willing to accept any
payments from a customer, then (unless a shorter period for an online
payment processor’s online bill payment service is provided in the OBC
reference materials or that online payment processor’s documentation)
you must request (in a form acceptable to us) that we return the
payment no later than the returns deadline on the day that is two
banking days after the file header date of the remittance file containing
that payment information.
(c) Some online payment processors offer a “guaranteed
payment” option as described in the OBC reference materials. If an
online payment processor does not offer such an option or your biller
profile does not require guaranteed payments from an online payment
processor that offers such an option, originators can initiate reversals of
payments previously made to you through that online payment
processor’s online bill payment service, and that online payment
processor will send an ACH debit entry to your settlement account (or
such other account as you may have designated to that online payment
processor) for such reversals. We will not have any responsibility for
any reversals processed through an online payment processor’s online
bill payment service or debits by an online payment processor to one of
your accounts to reverse a payment. If you want us to attempt to return
an erroneous reversal entry, then (unless a shorter period for an online
payment processor’s online bill payment service is provided in the OBC
reference materials or that online payment processor’s documentation)
you must request (in a form acceptable to us) that we return the reversal
entry no later than the returns deadline on the day that is one banking
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TERMS AND CONDITIONS
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day after the settlement date of the reversal entry. We will use good
faith efforts to honor your request to return a reversal entry, but will have
no liability if we cannot effect the return or your return request is not
honored by the applicable online payment processor. You agree to
reimburse us for any expenses we may incur in attempting to honor your
return request.
(d) In addition to any other rights we may have to act on
instructions we believe in good faith to have been given by a person you
have authorized, we may act upon any request or notice we receive
pursuant to this Section 4 that we believe in good faith to have been
given by one of your authorized users.
5. ULimitation of Liability; Disclaimer. In addition to any other
limits on our liability under the agreement and to the extent permitted by
applicable law, you agree that we will not have any liability for any acts
or omissions of an online payment processor (including, without
limitation, (a) any error or delay in processing any payments or
remittance information through that online payment processor’s online
bill payment service (including, without limitation, any error or delay in
initiating any funds transfers to you), (b) any breach of confidentiality of
any information (including, without limitation, any of your or your
customers’ payment, account or personal information), (c) the
inaccuracy of any remittance information, or (d) any reversals or other
debits initiated against your account). Neither we nor any online
payment processor makes any representations or warranties of
any kind with respect to that online payment processor’s online bill
payment service or the OBC service, including any implied
warranties of merchantability or fitness for a particular purpose. In
addition to any other obligation you have under the agreement and to
the extent permitted by applicable law, you agree to be responsible for
any claims, liabilities, losses, damages, costs and expenses (including,
without limitations, attorneys’ fees) arising from or related to (i) any
amounts or other obligations we owe an online payment processor that
are related in any way to your use of that online payment processor’s
online bill payment service, (ii) faulty or erroneous information or
instructions you give us or an online payment processor, (iii) any of your
errors or delays in posting a payment to your accounts receivable
system, (iv) any breach of any of your other obligations under these
OBC terms and conditions, or (v) any of your acts or omissions which
result in a breach by you or us of the terms of any online payment
processor’s documentation.
6. UOnline Payment Processor DocumentationU. Your use of the
OBC service is subject to the terms of each online payment processor’s
documentation. You agree to take all actions we deem necessary for
both you and us to be in compliance with each online payment
processor’s documentation. You agree that we are not obligated to take
any action under these OBC terms and conditions that would cause us
to breach the provisions of any online payment processor’s
documentation. You agree that none of our obligations under any online
payment processor’s documentation create obligations for us under
these OBC terms and conditions unless expressly set forth as our
obligations in these OBC terms and conditions.
7. UTerminationU. You or we may terminate your use of the OBC
service immediately upon written notice to the other party, provided that
any termination by you will not be effective until we have had a
reasonable time to act on your notice.
Online Bill Presentment and Payment Service
1. UDescription of the Online Bill Presentment and Payment
ServiceU. The Online Bill Presentment and Payment or "OBPP" service
enables you to electronically collect bill payments from your customers
(each, a "payer") by initiating ACH debit entries against their deposit
accounts or by initiating charges against their credit or debit cards.
These ACH debit entries and credit or debit card charges (which are
generically referred to in these OBPP terms and conditions as
"payments") are initiated in response to payment authorizations payers
submit through the Internet or give your authorized users over the
telephone. The OBPP service is one of the online services described in
the general terms and conditions. Details regarding OBPP's
functionality and certain requirements that you must follow when using
the OBPP service are provided in the OBPP reference materials as we
update them from time to time. When first launched, the OBPP service
will only provide the ACH functionality described in these OBPP terms
and conditions. We will notify you when the card functionality is
available.
2. UFunctioning of the OBPP ServiceU. Each payment
authorization that you or a payer submits through the OBPP service will
initiate a payment in accordance with these OBPP terms and conditions.
You will be the “originator” and we will act as the originating depository
financial institution or “ODFI” for each ACH debit entry initiated through
your setup of the OBPP service. Similarly, you will be the "merchant' for
each credit or debit card charge initiated through your setup of the
OBPP service. However, we do UnotU act as the merchant bank
processor or "acquirer" with respect to those credit or debit card
charges. Instead, the OBPP service merely routes information for those
credit or debit card charges to your third-party merchant bank
processor, which will act as the acquirer for those credit or debit card
charges. In order to initiate credit or debit card charges through the
OBPP service you must have entered into a merchant services
agreement with a third-party merchant bank processor that is
acceptable to us and with whom we have entered into an agreement
regarding certain issues relating to your use of the OBPP service. A list
of acceptable merchant bank processors with whom we have such
agreements is set forth in the OBPP reference materials as we update
them from time to time. We need you to work with us and to provide us
with certain information to implement your setup for the OBPP service.
You agree to give us all of this information in a form that is acceptable to
us.
3. UOrigination and Processing of PaymentsU.
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(a) Payment authorizations may be submitted through the
OBPP service by (i) a payer through an Internet website (the “biller
website”) we provide or (ii) an authorized user through the biller website
based on a verbal authorization a payer gives an authorized user over
the telephone. The biller website is part of the “OBPP system” we use
to provide the OBPP service to you. You must provide and maintain a
secure link to the biller website on your general website and are
responsible for ensuring that this link takes a payer to the appropriate
area within the biller website. You are also responsible for providing
data concerning each payer that uses this link in a manner that meets
our encryption or security requirements during the linking process.
(b) Before a payer may submit a payment authorization
through the OBPP service, that payer must be registered in the OBPP
system. A payer may self-register through the biller website or an
authorized user may register a payer through the biller website based
on information that payer gives an authorized user over the telephone.
The registration process must include a commercially reasonable fraud
detection system and commercially reasonable procedures to verify the
identity of the payer. At your option (as reflected in your OBPP service
profile), payers may be allowed to give payment authorizations
immediately following the registration process or may be prohibited from
giving payment authorizations until you have authorized them to do so.
(c) The biller website will be formatted in accordance with
the specifications that you give us in connection with our implementation
of your setup for the OBPP service. You grant us the right and a license
to use (i) your name, trademarks, service marks, copyrights and logos
and other textual information in connection with the biller website and (ii)
your data in connection with the OBPP service, in each case as
contemplated by these OBPP terms and conditions. Once a payer has
accessed the biller website, that payer may authorize you to initiate a
payment against the payer's deposit account or credit or debit card on
the day that the authorization is submitted, each a “current payment,” or
to initiate one or more payments on scheduled future dates, each a
“scheduled payment.” Before a payer may submit a payment
authorization through the biller website, that payer must accept, while
online, terms regarding use of the biller website that, among other
things, authorize you to initiate one or more payments against that
payer’s deposit account or credit or debit card, as applicable, and permit
you and us to use the data provided by the payer to process those
payments (including, without limitation, consent for that data to be sent
outside of the United States). These terms of use must also comply
with (i) in the case of an ACH debit entry, the NACHA operating rules
and guidelines as they are in effect at the relevant time, or the “ACH
rules” or (ii) in the case of a credit or debit card charge, the operating
regulations and other requirements of the entity or association that
issues or sponsors the applicable credit or debit card as they are in
effect at the relevant time, or the "card rules". We may provide you
sample terms of use. Through the biller website, a payer may view
scheduled payments set up in, and prior payments made through, the
OBPP system and (prior to the deadline for submitting payment
authorizations set forth in the OBPP reference materials as they are in
effect at the relevant time) may also delete or modify scheduled
payments set up in the OBPP system.
(d) An authorized user may also use the biller website to
initiate payments against a payer's deposit account or credit or debit
card based on a verbal authorization that payer gives an authorized
user over the telephone, but only if (1) the payer initiated the telephone
call or (2) you have an existing business relationship with the payer as
more fully described in the OBPP reference materials as they are in
effect at the relevant time. An authorized user must provide the
information specified in the OBPP reference materials as they are in
effect at the relevant time to the payer and obtain the payer's
unambiguous verbal authorization prior to initiating a payment through
the biller website. After an authorized user has initiated a payment
through the biller website, the OBPP system will automatically send the
payer a notice confirming that verbal authorization to the payee's email
address as then reflected in the OBPP system. This confirmation notice
must comply with the ACH rules or the card rules, as applicable.
(e) Each ACH debit entry initiated through the OBPP service
will be originated using a WEB, TEL or CCD entry code. The OBPP
system will assign an entry code based on information provided by the
payer or an authorized user when initiating the payment.
(f) A charge to a payer's credit or debit card initiated through
the OBPP service will be processed and charged against that card on
the "payment date" of the relevant payment authorization. On the other
hand, an ACH debit entry to a payer’s deposit account initiated through
the OBPP service will not be processed and debited against that
account until the business day following the "payment date" of the
relevant payment authorization. For each current payment, the payment
date will be the date that the relevant payment authorization is
submitted through the OBPP system. For each scheduled payment, the
“payment date” will be the future date assigned by the payer for that
payment. If a payment authorization is submitted through the OBPP
service after the deadline set forth in the OBPP reference materials as
they are in effect at the relevant time, that payment authorization will not
be deemed to have been submitted until the next business day (which
will be the payment date for that payment authorization). For purposes
of submitting payment authorizations for an ACH debit entry only,
Sunday will be deemed a “business day” for any payment authorizations
submitted after the delivery deadline on Friday and before the delivery
deadline on Sunday. In that regard, you may receive two files of ACH
payments on Monday (or the next business day if Monday is not a
business day)—one for payments authorized before 5 p.m. on Friday
and another for payments authorized after 5 p.m. on Friday and before 5
p.m. on Sunday.
(g) The OBPP service will use commercially reasonable
procedures to verify that the routing number associated with any ACH
debit entry initiated using the OBPP service is valid.
4. UAdministrative FunctionsU. You may use the biller website to
perform certain administrative functions in connection with your use of
the OBPP service. These functions may include registering a payer,
administering and approving a payer's registration, viewing the status of
payments, deleting payments, modifying scheduled payments, receiving
certain notices, generating and viewing certain transaction reports,
establishing authorized users and the limits on each authorized user’s
authority, and downloading and uploading certain files of data. Any
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and Terms and Conditions
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TERMS AND CONDITIONS
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modification or deletion of a payment must be completed prior to the
deadline for submitting payment authorizations set forth in the OBPP
reference materials as they are in effect at the relevant time. Reports
are available to be viewed through the biller website only for the number
of days set forth in the OBPP reference materials as they are in effect at
the relevant time. All files uploaded or downloaded through the biller
website will be transmitted to us or to you as you selected during our
implementation of your setup for the OBPP service.
5. URepresentations and WarrantiesU. Except as otherwise
provided in section 3(g) above related to verification of routing numbers
and in section 7(d) below related to secure connections, (a) for each
ACH debit entry you initiate through the OBPP service, you must comply
with all obligations of an originator of, and automatically make all
representations, warranties and agreements set forth in the ACH rules
and the terms and conditions for the ACH origination service related to
any entries with the same entry code type as used for that ACH debit
entry and (b) for each credit or debit card charge you initiate through the
OBPP service, you must comply with all obligations of a merchant with
respect to, and automatically make all representations, warranties and
agreements set forth in the card rules related to that type of credit or
debit card charge. You further represent that any payment or other
authorization you or a payer submits through the OBPP system has
been authorized by the relevant payer. You also represent and warrant
to us that our use of your (i) name, trademarks, service marks,
copyrights and logos and other textual information in connection with the
biller website and (ii) data in connection with the OBPP service, in each
case as contemplated by these OBPP terms and conditions, does not
infringe or otherwise violate any intellectual property or other proprietary
rights of any third party.
6. UDesignation of Security AdministratorsU. You must identify at
least one person as your OBPP security administrator in your OBPP
service profiles as they are in effect at the relevant time. Each security
administrator will be set up with full user permissions with respect to the
biller website, including the right to administer the rights and
permissions of all other users. Each security administrator and other
user who has been granted user administration rights with respect to the
biller website will be a “security administrator,” and will have all of the
rights and responsibilities described in the general terms and conditions
and these OBPP terms and conditions. In addition to the ability to
administer the rights and permissions of your other users, each security
administrator may administer his or her own user rights and
permissions, including adding rights and permissions. One of your
security administrators may also delete another security administrator or
modify that security administrator’s rights and permissions through the
biller website.
7. USecurity ProceduresU. The following security procedures
apply to your use of the OBPP service:
(a) UYour use of the biller websiteU: We will provide each
security administrator identified in your OBPP service profiles as they
are in effect at the relevant time with a user id and password to log on to
the biller website. Your authorized users must log on to the biller
website using the authorization codes that will be supplied to them by a
security administrator. Each authorized user will have the rights and
permissions granted to them by a security administrator. You are solely
responsible for establishing the security procedures an authorized user
must follow to verify the identity of a payer and the authenticity of verbal
payment or other authorizations a payer gives an authorized user over
the telephone before those payment or other authorizations are
submitted through the biller website.
(b) UA payer's use of the biller websiteU: To access and use
the biller website, a payer must log on to the biller website using that
payer’s user id and the password, as then reflected in the OBPP
system. If a payer self-registers in the OBPP system through the biller
website, the payer will select the payer's own user id and password. If
an authorized user registers a payer through the biller website, you will
designate the payer's user id and a temporary password. The OBPP
system will prompt the payer to change this temporary password upon
the initial log in to the biller website and the payer will be required to
reset this temporary password before authorizing payments through the
biller website.
(c) UPassword and user id resetsU: A payer may reset the
payer's password through the biller website by providing the user id and
related email address then reflected in the OBPP system. An email
notification and temporary password will be sent to the payer’s email
address as then reflected in the OBPP system. The OBPP system will
prompt the payer to change this temporary password upon the next log
in to the biller website and the payer will be required to reset this
temporary password before authorizing payments through the biller
website. However, only an authorized user that has been given
administrator rights may reset a payer's user id. This can be done at
any time through the biller website.
(d) USecure connectionU: For each session on the biller
website, any payment information will be transmitted through the OBPP
system via a secure session utilizing a commercially reasonable security
technology that provides a level of security that, at a minimum, is
equivalent to 128-bit encryption technology, employed prior to the key
entry of any payment information and through transmission to us. All
payer information stored in the OBPP system will be stored in an
encrypted format utilizing security technology providing a level of
encryption that, at a minimum, is equivalent to 128-bit encryption
technology. You and each payer must have equipment and software
that supports encryption technology equivalent to 128-bit encryption.
(e) UPAL totalsU. Immediately prior to transmitting the NACHA
formatted file to us, the OBPP system will communicate the total dollar
amount of the file (referred to as the “Phone Authorization Line or PAL
Total”) to us through the biller website. We do not require that you
separately submit PAL totals through our PAL system to process files of
ACH debit entries initiated through the OBPP service.
You agree that these security procedures are commercially reasonable.
8. UProtection of Our VendorU. We utilize one or more vendors in
providing the OBPP service. As a result, you agree that (a) each
reference to "we," "us" and "our" in any provision in the general terms
and conditions or these OBPP terms and conditions that limits our
liability to you, protects our data, intellectual property or other
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and Terms and Conditions
TREASURY MANAGEMENT
TERMS AND CONDITIONS
Page 41 of 63
proprietary rights, gives us and/or our vendors a right or license to use
your data, intellectual property or other proprietary rights or imposes an
obligation on you will, with respect to the OBPP service, be deemed to
include our vendors and their licensors and (b) our vendors and their
licensors are third party beneficiaries of those provisions and may
enforce them directly against you.
9. UACH Origination ServiceU. These OBPP terms and conditions
are expressly made a part of the ACH origination terms and conditions
and are subject to the provisions thereof. Terms that are defined in the
ACH origination terms and conditions have the same meanings when
used in these OBPP terms and conditions. If there is any inconsistency
on a particular issue between these OBPP terms and conditions and the
ACH origination terms and conditions, these OBPP terms and
conditions will control. You understand and agree, however, that our
agreement to provide the OBPP service does not permit you to use any
other aspect of the ACH origination service unless we have agreed to
include it in our implementation of your setup for the ACH origination
service.
Online Check Deposit Service
This section applies to those who use Online Check Deposit prior to November 19, 2012.
1. UDescription of the OCD ServiceU. The Online Check Deposit
or “OCD” service allows you to capture an electronic image of an
original physical paper check (and associated information describing
that check) and to transmit that image and associated information to us
for deposit to your account in place of forwarding the original physical
paper check to us. The OCD service will also provide access to, and
the ability to export and print, deposited check images as well as
reports regarding your use of the OCD service. Details regarding
OCD’s functionality and certain formatting and other technical
requirements that you must follow when using the OCD service are
provided in the OCD reference materials as we update them from time
to time. The OCD service may not be used outside of the United States
without our prior written approval and may not be used to capture an
electronic image of a remotely created check (as that term is defined in
Regulation CC).
2. UOperation of the OCD ServiceU.
(a) URequired Hardware and SoftwareU. Before you may use
the OCD service, you must have or obtain a personal computer, printer,
scanner and related software necessary to capture electronic images of
(and associated information regarding) checks that you receive. The
scanner must be a model that we have approved. As part of providing
the OCD service, we will sublicense the software to you that you need
to capture electronic images of (and associated information regarding)
checks. You must download the software and install it on a personal
computer that you will use in connection with the OCD service. A
separate copy of the software materials must be downloaded for use
with each personal computer (for reviewing reports) and for each
approved scanner and personal computer that you need to capture
electronic images of (and associated information regarding) checks.
You must notify us and obtain our approval before you download each
copy of the software. You must have or acquire each approved
scanner needed by you to utilize the OCD service. You acknowledge
that you previously acquired or are currently acquiring each scanner
directly from a third party vendor and, as a result, all warranty
obligations and contracts are to be handled directly with that vendor. At
your request, we may provide (in a form acceptable to us) your
contact information and your scanner acquisition information to a
third party vendor. Upon receipt of your information, the third
party vendor will facilitate your scanner acquisition. You agree that
we are only providing this information to the third party vendor as an
accommodation to you to facilitate your acquisition of a scanner and
that we do not have any responsibility or liability for the delivery of or
any aspect of the operation, use or maintenance of the scanner.
(b) UOCD SetupsU. Your authorized users for the OCD
service (and the accounts with respect to which each such authorized
user may use the OCD service to make deposits or obtain information
or reports) are designated in your OCD service profiles as they are in
effect at the relevant time. The OCD service also offers you the option
(through its Location Identifier function) of assigning a Location ID
number or alphanumeric description for each store, branch or office
(each of which is referred to as a “location”) for which deposits are
captured and transmitted to us through the OCD service. Your election
to use the Location ID function and the numbers and/or descriptions for
each location are reflected in our implementation/setup forms for the
OCD service as they are in effect at the relevant time. You must
provide us with the street address for each scanner to include in our
implementation of your setup for the OCD service. Please note that
you must notify us before you add, delete, or relocate any scanner so
that addition, deletion or relocation can be reflected in your OCD
service profiles. If you want to completely delete an account that is
included in our implementation of your setup for the OCD service, you
must delete it from the setup for each authorized user in which it is
included as reflected in your OCD service profiles as they are in effect
at the relevant time. Each account or authorized user you have
previously identified to us continues to be authorized unless you
confirm an OCD service profile that deletes that account or authorized
user. Any authorized user will be able to access information regarding
deposited checks and reports for their assigned accounts from any
personal computer on which the software has been downloaded and
installed, even if there is no a scanner attached to that personal
computer and/or it is located at a different address than listed for that
authorized user in your OCD service profiles as they are in effect at the
relevant time. Additional information regarding the Location Identifier
function, plus adding or deleting accounts, locations or authorized users
is available in the OCD reference materials.
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and Terms and Conditions
TREASURY MANAGEMENT
TERMS AND CONDITIONS
Page 42 of 63
(c) UCapturing Check Images and InformationU. In order to
use the OCD service to capture check images (and associated
information) or review reports, you must log on using one or more
authorization codes that we will distribute directly to the authorized
users designated in a service profile for this service. Separate
authorization codes may be issued to an authorized user for each OCD
service setup in which the authorized user is included. After you have
logged on, you will be required to provide us a control total for each
deposit that you are going to capture. The control total is the total dollar
amount of all checks included in a particular deposit. After you have
provided the control total for a deposit, using the personal computer,
scanner and software (all of which are referred to in these OCD terms
and conditions as your “OCD system”), you may capture an electronic
image of (and associated information regarding) any original physical
paper check that you have endorsed and that meets the standards for
processing an image for deposit (including those set forth in the OCD
reference materials). Those standards are referred to in these OCD
terms and conditions as the “OCD standards.” As you capture images
and associated information for each check included in a deposit, the
OCD system processes them to determine if they satisfy the OCD
standards. If an image and associated information satisfy the OCD
standards, the OCD system will accept them. If the OCD system
determines an image or associated information does not satisfy the
OCD standards, the OCD system will reject the nonconforming image
or information and ask you to rescan the check, manually provide or
verify information or, for certain image quality failures, elect to submit
the image or associated information as captured. Please note that the
inclusion of this limited election to submit an image as captured in the
OCD system does not relieve you of the representations and warranties
you make with respect to each image and associated information you
transmit to us. Once all of the images and associated information for a
deposit have been processed, the OCD system will provide you a
summary of the deposit and ask you to submit the deposit to us. Once
you have submitted a deposit to us, you may not cancel it. We must
receive your deposit by the then-current deadline set forth in the OCD
reference materials. In that regard, we are not liable for any delays or
errors in transmission of the images or associated information. If the
OCD service is not available, you must make your deposits by another
method, such as an in-person deposit at one of our branches or a
deposit by mail.
(d) UProcessing of Images and InformationU. Once we have
received a deposit, we will use each image and associated information
included in that deposit to create a substitute check or, at our option,
process it as an electronic item. If we use an image and associated
information to create a substitute check, we will process that substitute
check for deposit to your account and forward it for presentment to the
financial institution on which the original check was drawn or through or
at which it was payable (that institution is referred to in these OCD
terms and conditions as the “drawee bank”) through the check
collection channels that we would otherwise use to present a check to
the drawee bank. If we elect to process an image and associated
information as an electronic item, we will process that image for deposit
to your account and forward it for presentment to the drawee bank
through the electronic item collection channels that we would otherwise
use to present an electronic item to the drawee bank. In either event,
your deposit will be subject to the terms of any agreement we have with
other financial institutions relating to the presentation of substitute
checks or electronic items. We will make funds for each substitute
check or electronic item that we process for deposit to your account
available to you under the same schedule that would have applied if
you had deposited the original check to your account on the business
day that we received the file containing a conforming image of that
check.
(e) UReturns and Rejected ImagesU. If we determine an
image or associated information is not in a satisfactory form or is a
duplicate, we may reject the nonconforming image or duplicate item,
which means those items are sent back to you for reasons of poor
quality, missing images or duplicate items. A summary debit
adjustment will be made to your account and a debit advice will be sent
to you. In addition, any image and associated information included in a
deposit must satisfy the quality standards of the Federal Reserve Bank
or other collecting bank to which we have forwarded an image and
associated information for collection, the “collecting bank quality
standards.” All check images which fail to meet collecting bank quality
standards will be sent to you as a return advice with attached image for
each item. There are no specific timelines for these types of
adjustments, but they are usually completed within thirty business days
of deposit. If an image is rejected for failing to meet the OCD standards
or the collecting bank quality standards, you must take corrective action
to either recapture the image and associated information and submit it
in a new OCD or submit the original check for deposit.
(f) UOriginal Checks and Captured ImagesU. You agree to
use commercially reasonable security procedures to safeguard the
original physical paper checks, images and associated information in
your possession after you have transmitted images of such items to us
and you agree to make such items available to us promptly upon our
request. You agree that you will not capture more than one image of
(or associated information regarding) any original check and that you
will not negotiate, deposit or otherwise transfer any original check to us
or to any other person or entity after you have captured an image of (or
associated information regarding) it. You also agree that (i) you will not
transmit an image of (or associated information regarding) any original
check to us more than once, (ii) you will not transmit an image of (or
associated information regarding) any original check to us that you
have previously transmitted to any other person or entity, (iii) you will
not transmit an image of (or associated information regarding) any
original check to any other person or entity after you have transmitted it
to us; (iv) you will not transmit an image of (or associated information
regarding) any original check if that check has been used as a source
document for the initiation of an ACH or other electronic debit; and
(v) you will not use any original check as a source document for the
initiation of an ACH or other electronic debit after you have transmitted
an image of (or associated information regarding) that check to us.
3. UYour Representations and WarrantiesU. You make all of the
representations and warranties to us with respect to each captured
check image and associated information that you transmit to us that you
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and Terms and Conditions
TREASURY MANAGEMENT
TERMS AND CONDITIONS
Page 43 of 63
would have made if you had deposited the original physical paper
check into your account. In addition, you represent and warrant to us
with respect to each captured check image and associated information
that you transmit to us that (a) the image and associated information
(i) accurately represent all of the information on the front and back of
the original physical paper check at the time the image and associated
information were captured and (ii) are otherwise sufficient for us to
satisfy our obligations as the truncating and reconverting bank and
(b) no person or entity will receive a transfer, presentment or return of,
or otherwise be charged for, (i) the original check, (ii) an electronic item
or substitute check that we create from the image and associated
information, or (iii) a paper or electronic representation of the original
check or of a substitute check that we create from the image and
associated information, such that the person or entity will be asked to
make a payment based on a check that it has already paid.
4. UYour ObligationsU. In addition to any other obligation you have
to us, you agree to be responsible for any and all liabilities, claims,
damages, losses, demands, fines (including those imposed by any
Federal Reserve Bank, clearing house or funds transfer system),
judgments, disputes, costs, charges and expenses (including litigation
expenses, other costs of investigation or defense and reasonable
attorneys’ fees) which relate in any way to (a) the use of the OCD
system or OCD service to capture an image of a remotely created
check, (b) your use of the OCD system or the OCD service (other than
as expressly provided in these OCD terms and conditions) or (c) the
receipt by any person or entity of (i) an electronic item, (ii) a substitute
check or (iii) a paper or electronic representation of the original check or
the substitute check that we create from a captured check image and
associated information that you transmit to us, instead of the original
check.
5. USecurity ProceduresU. The security procedures for the OCD
service include the requirement that your authorized users log on to
OCD service using the authorization codes that we supply to them. We
may replace the password portion of an authorization code upon your
request, by calling the telephone number of your authorized user as
shown in our records and giving the new password to any person
answering the phone at that number. You agree that we may give the
new password to anyone we believe in good faith is your user. Unless
you otherwise instruct us to limit the use of authorization codes to
certain accounts, any set of authorization codes issued for use with
OCD service could be used to transmit or receive files through OCD
service for any account that we have included in your setup for OCD
service. You agree that these security procedures are commercially
reasonable.
This section applies to those who use Online Check Deposit after
November 19, 2012. For those of you who were using the Online
Check Deposit Service prior to November 19, 2012, this section
applies to you upon your notice from us of your migration to the
new platform.
1. Description of the OCD Service and Restrictions on UseU The
Online Check Deposit or “OCD” service and the Internet-based OCD
system allow you to capture an electronic image of an original physical
paper check and an image of associated information describing that
check including optical character recognition (OCR) remittance coupons
and transmit the image of the check to us for deposit to your account.
The OCD service also provides access to, and the ability to export and
print, deposited check images and remittance coupon images as well
as reports regarding your use of the OCD service. Further details
regarding OCD’s functionality and certain formatting and other technical
requirements that you must follow when using the OCD service are
provided in the then current version of the OCD reference materials
which, among other things, include a user manual for OCD system
administrators and a user manual for end users of the OCD system.
The reference materials are contained in the Internet-based microsite
for this service. The OCD service may not be used outside of the United
States, US territories, US military bases or US Embassies. The OCD
Service may not be used to deposit ineligible items. A list of items that
are eligible and ineligible for transmission via the OCD Service is
provided in the OCD reference materials.
2. Required Hardware and SoftwareU. Before you can use the
OCD service, you must have a personal computer capable of Internet
access, a scanner, and the related software needed to capture
electronic images of checks, associated information and remittance
data. The scanner must be a model that we have approved. A list of
approved scanners and technical information related to scanner
installation can be found in the reference materials. When you acquire
a scanner from a third party vendor you agree that all warranty
obligations and contracts are to be handled directly with that vendor
and that we do not have any responsibility or liability for the
performance of the vendor, the delivery of the scanner or any aspect of
the operation, use or maintenance of the scanner. At your request, we
may provide your contact information and information related to your
desired scanner to a third party vendor. When the vendor receives your
information the vendor will contact you directly to facilitate your scanner
acquisition. You agree that we are only providing this information to the
third party vendor as an accommodation to you to facilitate your
potential acquisition of a scanner and that we do not have any
responsibility or liability for the performance of the vendor or the
delivery of the scanner or any aspect of the operation, use or
maintenance of the scanner.
3. Required Security Administrator and ContactU. Before you can
use the OCD service, you must designate one person who will act as
both your primary OCD security administrator and your OCD contact.
You will be required to confirm your selection of this person. Details on
how you will provide this confirmation will be provided to you during
implementation of the OCD service. The primary OCD Security
Administrator you select will have the authority, in his or her discretion,
to then set up users and one or more additional OCD security
administrators directly through the OCD service. These additional
security administrators will in turn then have the ability to establish
additional OCD security administrators and users. Details on how you
establish and terminate security administrator and user rights are
addressed in the OCD reference material for security administrators.
Given the ability of a security administrator to create additional security
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and Terms and Conditions
TREASURY MANAGEMENT
TERMS AND CONDITIONS
Page 44 of 63
administrators, the term “OCD security administrator” therefore includes
not only the primary OCD security administrator but any other user who
is granted administration entitlements by that OCD security
administrator or any other OCD security administrator(s). Security
administrator and user access to the OCD Service carries with it the
ability to access any accounts and services included in the functionality
that is available in the OCD service. Given the flexibility that is
designed into the OCD System to enable this cascading of
administrative and user rights for the benefit of customers who
require it, as a matter of your internal control policies, you must
consider carefully the person you will name as your primary OCD
security administrator and you must develop procedures to
routinely monitor the actions of all your security administrator(s)
and those to whom the primary security administrator has given
OCD access either as a user or security administrator. We will
provide information on such activity to any authorized signer who
makes a request for it but the bank undertakes no duty to monitor the
actions of any security administrator(s) or designated user(s). Each of
your OCD security administrators, has all of the rights and
responsibilities given to them in the general terms and conditions in
addition to the rights and responsibilities contained in these OCD terms
and conditions and related reference materials.
4. Deletion of Accounts Associated with the OCD Service. If you
want to completely delete an account that is included in your
implementation of the OCD service, an authorized signer on the
account must contact the bank and make this request. Additional
information regarding user entitlements and the process for adding or
deleting accounts, locations or authorized users is available in the OCD
reference materials for security administrators.
5. Using OCD to Capture and Transmit Check Images and
InformationU. In order to use the OCD service, an authorized user must
log on using a user ID number and password that we will distribute
directly to the authorized user(s). After a user has logged on, the user
will be required to provide us a control total for each deposit that he/she
intends to transmit. The control total is the total dollar amount of all
checks included in a particular deposit. After the user has entered the
control total for a deposit into the OCD system, the user may capture
images of original physical paper checks and associated information
that meets the eligibility and image quality standards set forth in the
OCD reference materials and in these OCD terms and conditions. All
such standards are referred to as the “OCD standards.” As the user
captures an image, the OCD system will determine if the image
satisfies the OCD standards. If an image satisfies the OCD standards,
the OCD system will accept it and information associated with it. If the
OCD system determines an image does not satisfy the OCD standards,
the OCD system will reject the nonconforming image and ask the user
to either a.) rescan the check, b.) manually provide or verify information
or, c.) for certain types of limited image quality failures, confirm the
user’s desire to submit the image or associated information as
captured. Please note that the inclusion of the ability for a user to
submit an image as captured in the OCD system in certain limited
situations does not relieve you of the representations and
warranties you make with respect to each image and associated
information you transmit to us. Once all of the images and
associated information for a deposit have been scanned, the OCD
system will provide the user a summary of the deposit and ask the user
to submit the deposit to us. Once the user has submitted a deposit, it
may not be cancelled.
6 Dual Approval Security Feature. The security procedures for
the OCD service include the option to use a dual approval security
protocol. The dual approval security feature requires that at least two
authorized users be involved in the check image capture and approval
process in order to submit an OCD file for deposit. One user must scan
the check images and then a second user with approval permissions
must release and send the check image file to the bank. Only users
with approval permission can submit the file to the bank for processing.
We highly recommend this internal control process for any
company large enough to have more than one employee involved
in accounts receivable and check collection and deposit
processes.
7. Processing of Images and InformationU. Once we have
received a deposit we will, at our option, use each accepted check
image and associated information to process the check image as an
electronic item or to create a substitute check. If we use an image and
associated information to create a substitute check, we will process that
substitute check for deposit to your account and forward it through the
check collection channels that we would otherwise have used to
present the original paper check to the bank on which the check is
drawn. If we elect to process an image and associated information as
an electronic item, we will process that image for deposit to your
account and forward it for presentment to the bank on which it is drawn
through the electronic item collection channels that we would otherwise
use to present an electronic item to such bank. In either event, your
deposit will be subject to the terms of any agreement we have with
other financial institutions relating to the presentation of substitute
checks or electronic items.
8. Deposit Credit and Alternative Deposit Methods. We must
receive your deposit by the daily deadline set forth in the OCD
reference materials in order for you to receive credit for that deposit on
that business day. Deposits received after the deadline will be
considered deposited on the next business day. Deposits submitted on
a Saturday, Sunday or holiday will be considered deposited on the next
business day following the weekend or holiday. We are not liable for
any delays or errors in transmission of the images or associated
information. If the OCD service is not available, you must make your
deposits by another method, such as an in-person deposit at one of our
branches or a deposit by mail. If you must make a deposit by other
means due to OCD service being unavailable you should deposit only
checks and should retain in your possession the other documents you
would normally scan with an OCD deposit.
9. Funds Availability. We will make funds for each substitute
check or electronic item that we process for deposit to your account
available to you under the same schedule that would have applied if
you had deposited the original paper check to your account.
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and Terms and Conditions
TREASURY MANAGEMENT
TERMS AND CONDITIONS
Page 45 of 63
10. Returns and Rejected Images. If we determine an image or
associated information is not in a satisfactory form or is a duplicate, we
may reject the nonconforming image or duplicate item. This means that
the item is not accepted for deposit and it will be sent back to you for
reasons of poor quality, missing images or duplicate items. A summary
debit adjustment will be made to your account, in situations where you
were given credit for the item, and a debit advice will be sent to you. In
addition to satisfying our image quality standards, any image and
associated information included in a deposit must also satisfy the
quality standards of the Federal Reserve Bank or other collecting bank
to which we have forwarded an image and associated information for
collection, the “collecting bank quality standards.” We will send you all
check images which fail to meet collecting bank quality standards.
There are no specific timelines for these types of adjustments. They
are, however, usually completed within thirty business days of deposit.
If an image is rejected for failing to meet the OCD standards or the
collecting bank quality standards, you must take corrective action to
either recapture the image and associated information and submit it in a
new OCD file transmission or submit the original check for deposit.
11. Original Checks and Captured Images. You agree to use
commercially reasonable security procedures to safeguard the original
physical paper checks, images of them and associated information in
your possession both before and after you have transmitted images of
such items to us. You also agree to make all such items available to us
promptly upon our request. You also agree to establish reasonable
retention and destruction schedules, policies and procedures for paper
checks that are retained by you after they have been scanned and
submitted for deposit and to employ methods to stamp or mark the front
of such items as having been previously deposited, and to establish
general internal control procedures related to physical and logical
security related to access, transmission, storage, and disposal of items
you have transmitted for deposit.
12. Your Representations and WarrantiesU. You represent,
warrant and agree that you will not:
a.) capture or transmit more than one image of any original
check;
b.) negotiate, deposit, or otherwise transfer any original check to
us or to any other person or entity after you have captured an
image of it;
c.) transmit an image of any original check to us that you have
previously transmitted or given to any other person or entity;
d.) transmit an image of any original check to any other person or
entity after you have transmitted it to us;
e.) transmit an image of any original check if that check has been
used as a source document for the initiation of an ACH or
other electronic debit; or
f.) use any original check as a source document for the initiation
of an ACH or other electronic debit after you have transmitted
an image of (or associated information regarding) that check
to us.
You also make all of the representations and warranties to us with
respect to each check image that you transmit to us that you would
have made under the Uniform Commercial Code (UCC) if you had
deposited the original physical paper check into your account.
In addition, you represent and warrant to us with respect to each
captured check image and associated information you transmit to us
that:
a.) the image and associated information (i) accurately represent
all of the information on the front and back of the original physical
paper check at the time it was received by you and at the time the
image and associated information were captured; and (ii) are
otherwise sufficient for us to satisfy our obligations as the
truncating and reconverting bank; and
b.) no person or entity will receive a transfer, presentment or return
of, or otherwise be charged for, (i) the original check, (ii) an
electronic item or substitute check other than the one that we
create from the image and associated information, or (iii) a paper
or electronic representation of the original check or of a substitute
check other than the one that we create from the image and
associated information, such that the person or entity will be asked
to make a payment based on a check that it has already paid.
13. Duty of Cooperation, Document Production, Audit. You agree
that you shall make original and imaged documents available to us to
facilitate investigations related to unusual transactions or poor image
quality transmissions, or to resolve disputes. You further agree that we,
at our option, upon prior notice, may perform periodic audits of your
processes related to use or proposed use of the OCD service including
your IT, security and internal control infrastructure related to your use of
the OCD service. You agree that we have the right to mandate specific
internal controls at any of your locations that use the OCD service
where we deem such actions necessary to protect the security and
integrity of the OCD service or where required or expected by bank
regulators, and that we may terminate the service if you refuse to
implement such controls. You further agree that we have the right, in
general, to terminate the OCD service pursuant to the rights of
termination stated in the general terms and conditions for all services
and to delay or refuse to process transactions, including OCD
transactions, for the reasons stated in the general terms and conditions
for all services.
14. Your ObligationsU. In addition to any other obligation you have
to us, you agree to be responsible for any and all liabilities, claims,
damages, losses, demands, fines (including those imposed by any
Federal Reserve Bank, clearing house or funds transfer system),
judgments, disputes, costs, charges and expenses (including litigation
expenses, other costs of investigation or defense and reasonable
attorneys’ fees) which relate in any way to (a) the use of the OCD
system or OCD service to capture an image of a remotely created
Exhibit G - SunTrust Treasury Management Master Agreement
and Terms and Conditions
TREASURY MANAGEMENT
TERMS AND CONDITIONS
Page 46 of 63
check, (b) your use of the OCD system or the OCD service in a manner
other than as expressly provided in these OCD terms and conditions or
(c) the receipt by any person or entity of (i) an electronic item, (ii) a
substitute check or (iii) a paper or electronic representation of the
original check or the substitute check that we create from a captured
check image and associated information that you transmit to us, instead
of the original check.
Online Courier Service
1. UDescription of the OLC ServiceU. The SunTrust Online Courier
or “OLC” service is an information reporting service that is available over
the Internet or dedicated telephone lines. It is one of the online services
described in the general terms and conditions. You may use the OLC
service with respect to the accounts and services that you have
identified (in a form acceptable to us) and that we have included our
implementation of your setup for the OLC service. Details regarding
OLC’s functionality and certain formatting and other technical
requirements that you must follow when using the OLC service are
provided in the OLC reference materials as we update them from time to
time.
2. UDesignation of Security Administrator and ContactU. In order to
use the OLC service, you must designate a person who will act as your
OLC security administrator and a person who will act as your OLC
contact. These people will have all of the rights and responsibilities
described in the general terms and conditions and will be identified in
your OLC service profiles as they are in effect at the relevant time.
3. UFeesU. Fees for the OLC service will be charged to the
account that is identified in your OLC service profiles as they are in
effect at the relevant time.
4. USecurity ProceduresU. The security procedures for the OLC
service include the requirement that your users log on to the OLC
service using the authorization codes that will be supplied by your
security administrator as described in the general terms and conditions.
You agree that these security procedures are commercially reasonable.
Online File Transfer Service
1. UDescription of the OFT ServiceU. The SunTrust Online File
Transfer or “OFT” service is an Internet-based data transmission
service. It is one of the online services described in the general terms
and conditions. Details regarding OFT’s functionality and certain
formatting and other technical requirements that you must follow when
using the OFT service are provided in the OFT reference materials as
we update them from time to time.
2. UUse of the OFT ServiceU. You may use the OFT service with
respect to the accounts and services that are identified in your OFT
service profiles as they are in effect at the relevant time and that we
have included in our implementation of your setup for the OFT service.
In that regard, if your service profile for any other service includes
information regarding an OFT contact, those service profiles constitute
OFT service profiles as well.
3. UMultiple Authorization CodesU. OFT authorization codes are
not tied to any particular account or service. As a result, unless you
have instructed us (in a form acceptable to us) to limit the use of
authorization codes to certain accounts and/or services, you should
understand that if multiple sets of OFT authorization codes have been
issued, any set of authorization codes may be used to transmit files
through the OFT service for any service or account that we have
included in your set up for the OFT service, whether or not the specific
authorization codes being used were intended to be used with the
particular account or service.
4. UDesignation of ContactU. In order to use the OFT service, you
must designate at least one person who will act as your OFT contact.
This person will have all of the rights and responsibilities described in
the general terms and conditions and these OFT terms and conditions
and will be identified in your OFT service profiles as they are in effect at
the relevant time. If you name only one such person on all of your OFT
service profiles, then that person will act as your OFT contact for all
accounts and services included in your set up for the OFT service. If
you want a separate OFT contact for one or more accounts and
services, then each of those separate OFT contacts must be identified
in your OFT service profiles as they are in effect at the relevant time.
You may also name a person as your backup OFT contact. If you name
only one such person on all of your OFT service profiles, then that
person will act as your backup OFT contact for all accounts and
services included in your set up for the OFT service. If you want a
separate backup OFT contact for one or more accounts and services,
then each of those separate backup OFT contacts must be identified in
your OFT service profiles as they are in effect at the relevant time.
5. UFeesU. Fees for the OFT service will be charged to the account
identified in your OFT service profiles as they are in effect at the
relevant time.
6. USecurity ProceduresU. The security procedures for the OFT
service include the requirement that your users log on to the OFT
service using the authorization codes that we supply to your OFT
contact(s) as described in the general terms and conditions. In that
regard, we will replace the password portion of an authorization code
upon your request. We will do so by calling the telephone number of
your OFT contact (s) listed in your OFT service profile as it is in effect at
the relevant time and giving the new password to the person answering
the phone at that number. You agree that we may give the new
password to anyone we believe in good faith is your authorized user.
You agree that these security procedures are commercially reasonable.
Online Treasury Manager Service
Exhibit G - SunTrust Treasury Management Master Agreement
and Terms and Conditions
Page 47 of 63
1. UDescription of the Online Treasury Manager ServiceU. The
SunTrust Online Treasury Manager or “OTM” service is an Internet-
based information reporting and transaction initiation service. It is one
of the online services described in the general terms and conditions.
Details regarding OTM's functionality and certain formatting and other
technical requirements that you must follow when using the OTM
service are provided in the OTM reference materials as we update them
from time to time.
2. UUse of the OTM ServiceU. You may use the OTM service with
respect to the accounts and services that you have identified (in a form
acceptable to us) and that we have included in our implementation of
your setup for the OTM service at the relevant time.
3. USecurity Administrators and ContactU. In order to use the OTM
service, you must designate at least one person who will act as your
OTM security administrator and a person who will act as your OTM
contact. You may identify your OTM security administrator(s) and your
OTM contact we are to include in our implementation of your setup of
the OTM service in your OTM service profiles as they are in effect at the
relevant time. You may set up one or more additional OTM security
administrators directly through the OTM service by granting
administration entitlements to a user. In addition to the OTM security
administrator(s) reflected in your OTM service profiles as they are in
effect at the relevant time, the term “OTM security administrator”
includes any other user set up in the OTM service who is granted
administration entitlements by any other OTM security administrator(s).
In addition to any of the rights and responsibilities of an OTM security
administrator or OTM contact described in these OTM terms and
conditions or any OTM reference materials, each of your OTM security
administrators and OTM contacts will have all of the rights and
responsibilities described in the general terms and conditions for
security administrators and contacts, respectively. Each of your OTM
security administrators may be able to grant any user authorized to use
the OTM service, including themselves, access to any accounts and
services included in your setup of the OTM service for any functionality
or entitlement that is available in the OTM service. In addition, you may
also terminate administration entitlements of any OTM security
administrator directly through the OTM service. If through the OTM
service you terminate the administration entitlements of an OTM
security administrator designated on one of your service profiles in
effect at that time, you are solely responsible for updating your service
profiles to delete that person from the service profiles as well, so that
your service profiles and authorizations in the OTM service are
consistent. We may rely on information in your service profiles as they
are in effect at the relevant time, and we have no responsibility if the
authorizations you have granted directly through the OTM service are
not consistent with your service profiles.
4. UFeesU. Fees for the OTM service will be charged to the
account(s) identified in your OTM service profiles as they are in effect at
the relevant time.
5. USecurity ProceduresU. The security procedures for the OTM
service include the requirement that each of your users logs on to the
OTM service using that user’s authorization codes. Your users should
not give their authorization codes to any other person or use them
anywhere other than within the OTM service. The user’s initial
authorization codes will be supplied by an OTM security administrator
as described in the general terms and conditions. You are solely
responsible for developing appropriate checks and balances to
effectively control and monitor the use of the OTM service by all users,
including each of your OTM security administrators. We may require
that a user provide additional information or use other additional security
procedures to authenticate that user. You agree that the security
procedures for the OTM service are commercially reasonable for you.
(a) 6TUDual Approval Security FeatureU.6T The security procedures
for the OTM service include the use of the “dual approval” security
feature. The dual approval security feature requires that at least two
authorized users be involved in the initiation and release of any wire
transfer or ACH transaction through the OTM service. One user with
sufficient initiation entitlements must input the transaction information;
and at least one other user with sufficient approval entitlements must
approve the transaction before it is released and processed.
(b) 6TUSecure Browsing SoftwareU6T. Effective on the requirement
date for the secure browsing software, the security procedures for the
OTM service will include the requirement that each of your users logs on
to the OTM service from a computer on which you have installed and
have running Rapport, the secure browsing software provided by
Trusteer Inc. (or one of its affiliates), or other secure browsing software
which we may have approved for use with the OTM service from time to
time. Trusteer Rapport or such other approved secure browsing
software is referred to herein as the “secure browsing software.” The
“requirement date for the secure browsing software” means either (i)
June 20, 2011, or (ii) for each of your setups of the OTM service we
have implemented or begun to implement by that date, the effective
date for the required use of secure browsing software that is set forth in
the letter we will send or have sent to you, to notify you of this change
and an amendment to the terms and conditions of the OTM service. We
use various means to detect if secure browsing software is installed and
running on a computer. If by using the methods we employ at the
relevant time, we are not able to detect that secure browsing software is
installed and running on the computer from which one of your users is
attempting to access the OTM service, your user will not be permitted to
log on to the OTM service from that computer. If, however, by using
those methods we employ at the relevant time, we determine that
secure browsing software is installed and running on a computer, your
user will be able log on to the OTM service from that computer (so long
as that user also complies with the other security procedures applicable
to that user accessing the OTM service). Your use of the secure
browsing software will be licensed to you by the vendor of the secure
browsing software you are using under a separate license agreement,
the “software license agreement.” You agree that your use of the
secure browsing software is subject to, and that you are bound by and
will comply with, the terms of that software license agreement. WE
DISCLAIM ALL REPRESENTATIONS AND WARRANTIES OF ANY
KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, WITH
RESPECT TO ANY SECURE BROWSING SOFTWARE, INCLUDING
ANY REPRESENTATIONS AND WARRANTIES OF PERFORMANCE,
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
TITLE AND NON-INFRINGEMENT. We make no guarantees and have
no responsibility with respect to (i) the operation of any secure browsing
software being uninterrupted, error free or free from program limitations,
(ii) defects in any secure browsing software or information provided
through it, or (iii) any secure browsing software being free of viruses,
disabling devices or other harmful components. You agree that
although the use of secure browsing software on any computer you are
using to log on to the OTM service is part of the security procedures for
Exhibit G - SunTrust Treasury Management Master Agreement
and Terms and Conditions
TREASURY MANAGEMENT
TERMS AND CONDITIONS
Page 48 of 63
the OTM service, WE WILL NOT HAVE ANY RESPONSIBILITY FOR
THE PERFORMANCE OF THE SECURE BROWSING SOFTWARE OR
ANY RELATED SERVICES OR FOR ANY LOSSES, DAMAGES,
COSTS, OR EXPENSES INCURRED RELATED TO YOUR USE OF,
OR ANY FAILURE, ERRORS, OR DEFICIENCIES OF, THE SECURE
BROWSING SOFTWARE OR ANY RELATED SERVICES, OR ANY
ACTS OF OMISSIONS OF THE VENDOR OF THE SECURE
BROWSING SOFTWARE, WHETHER RESULTING FROM BREACH
OF CONTRACT, NEGLIGENCE, VIOLATION OF LAW, OR WILLFUL
MISCONDUCT, EVEN IF WE HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH LOSSES, DAMAGES, COSTS OR
EXPENSES. Without limiting the foregoing, we will have no
responsibility if any equipment, communications capabilities, or software
that you are using at any time is not compatible with the secure
browsing software or when used with the secure browsing software has
an adverse impact on your ability to access the OTM service or the
performance of the OTM service. You are solely responsible for
determining if the secure browsing software will work with your
equipment, communications capabilities, and other software and for
ensuring that any installation of the secure browser software is in
accordance with your policies. You agree that any vendor of the secure
browsing software you are using is authorized to make certain
information related to the computer on which it is installed, including the
IP address, available to us, and in that event, we will have no obligation
to provide any notices to you, including with respect to any of that
information made available to us for the purposes of fraud prevention.
Your obligations under the general terms and conditions to maintain the
confidentiality of any software, software materials or other related
documentation will apply to any documents or information related to the
secure browsing software you use.
(c) 6TUYour Use of Non-standard Security ProceduresU6T. You
acknowledge that we have made available and offered to you
commercially reasonable security procedures for use of the OTM
service. If you elect to use non-standard security procedures (as
reflected by your OTM service profiles as they are in effect at the
relevant time or other form acceptable to us), you agree to be bound by
any access to the OTM service, any funds transfer to or from any
account of yours initiated through the OTM service, and any other
instructions submitted through the OTM service, in compliance with the
non-standard security procedures that you elected to use, whether such
access, funds transfer or other instructions were authorized or not, and
you further agree that the non-standard security procedures are
commercially reasonable for you. Non-standard security procedures
may include (but are not limited to) your election not to use the dual
approval security feature, which election may allow a single user to
initiate and approve wire or ACH transactions through the OTM service,
and your election not to use secure browsing software, which election
may allow one or more users to log on to the OTM service from a
computer that does not have secure browsing software installed on it
and actively running, You authorize each OTM security administrator to
elect on your behalf whether to use a non-standard security procedure.
We may, but are not obligated to, accept any such election from an
OTM security administrator, and any such election by an OTM security
administrator will be binding on you. We are not obligated to implement
your request to use non-standard security procedures, and you agree
we will have no liability whether or not we implement that request for
you.
(d) UYour ObligationsU. Without limiting or modifying any other
obligations you provide us and in consideration of our complying with
your request to use any non-standard security procedures, you agree, at
your sole cost and expense, to be responsible for any and all liabilities,
claims, damages, losses, demands, fines, judgments, disputes, costs,
charges and expenses (including litigation expenses, other costs of
investigation or defense and reasonable attorneys’ fees) incurred by us
as a result of your using a non-standard security procedure. In
particular, and without limiting your obligation under the foregoing
sentence, you will be responsible for any and all claims and liability
related to any unauthorized funds transfers or unauthorized ACH debit
entries that are initiated through the OTM service, or any access to data
available in the OTM service, in compliance with the non-standard
security procedures.
6. UAccountsU. If any loan or card account types are included in
your setup for the OTM service, the term “account” when used in these
OTM terms and conditions or the general terms and conditions in
reference to the OTM service includes these account types. In such a
case, you authorize us to release information relating to any loan or card
accounts identified in your OTM service profiles as they are in effect at
the relevant time in accordance with these OTM terms and conditions,
including the release of such information to any of your OTM users in
accordance with the access you have to such information granted to
each such OTM user.
7. UProtection of Our VendorU. We utilize a vendor in providing the
OTM service. As a result, you agree that (a) each reference to "we,"
"us" and "our" in any provision limiting our liability to you or imposing an
obligation on you will, with respect to the OTM service, be deemed to
include our vendor and (b) our vendor is a third party beneficiary of
these OTM terms and conditions.
8. UMultiple Setups of the OTM ServiceU. If you have requested
that we implement more than one setup of the OTM service for you,
then you will need to designate the OTM security administrator(s) and
OTM contact for each setup. For an OTM security administrator, OTM
contact or user to be authorized for more than one of your setups of the
OTM service, you must authorize that OTM security administrator, OTM
contact, or other user for each of those setups. An OTM security
administrator authorized for one or more of your setups is authorized
only to designate your users for those setups and grant those users
access to the accounts and services included in those setups of the
OTM service for any functionality or entitlement that is available in the
OTM service. The company identifier, or “company ID” will be different
for each of your setups of the OTM service, and to log on to a setup of
your OTM service, your OTM security administrator(s) and other users
will use their authorization codes for that setup. If you have more than
one setup of the OTM service, each service profile will be for the setup
of the OTM service that is identified by the company ID on that service
profile or if the service profile does not contain a company ID, the setup
of the OTM service for which we implemented the security administrator
named on that service profile or otherwise reflected in our records.
Exhibit G - SunTrust Treasury Management Master Agreement
and Terms and Conditions
Page 49 of 63
Positive Pay and Reverse Positive Pay Service
1. UDescription of the PPY and RPPY ServicesU. The SunTrust
Positive Pay (“PPY”) and Reverse Positive Pay (“RPPY”) services allow
you to give us instructions to return certain checks that you believe may
be fraudulent or not validly issued. Details regarding the functionality
the PPY and RPPY services and certain formatting and other technical
requirements that you must follow when using the PPY or RPPY service
are provided in the PPY and RPPY reference materials as we update
them from time to time.
2. USelection of Service OptionsU. You may select the PPY or
RPPY service for each account as described below. Your selection of
an option for an account is reflected in your PPY and/or RPPY service
profiles as they are in effect at the relevant time.
(a) 7TUPositive Pay or “PPY” Service OptionU7T.
(i) UPresentment ProcessingU. With the PPY service,
you must transmit an issue file to us on each day on which you have
issued any checks against any account that is included in your setup for
the PPY service. We must receive that issue file by the issue deadline
set forth in the PPY reference materials and it must contain all of the
information set forth in the PPY reference materials with respect to each
check you issued that day. You may send us a separate issue file for
each account, or you may send us an aggregate issue file for all of the
accounts that are included in your setup for the PPY service. Once we
have received your issue file, we will compare the information in that
issue file with the information in our systems with respect to checks
(A) that have been presented to us through normal check clearing
channels for payment against the relevant account and that we have
posted to the relevant account, and (B) for which we have provisionally
settled. You authorize us to finally pay and charge against the relevant
account, each check that matches the information in your issue file. We
will notify you of each presented check that is not included in the issue
file that we received from you or that reflects information that does not
match the information in the issue file we received from you. The
checks that are not listed or for which the information does not match
are referred to as “mismatched checks.” You must instruct us to pay or
return each mismatched check by the payment decision deadline set
forth in the PPY reference materials. Your instructions must contain all
of the information with respect to each mismatched check set forth in
the PPY reference materials. You may elect one of two ways for us to
deal with mismatched items if you fail to give us a pay or return decision
by the payment decision deadline. Under the “return default” option,
you authorize us to return unpaid each mismatched check unless we
receive an instruction from you to pay it before the payment decision
deadline. Even if you select a return default option, we may post, finally
pay and charge against the relevant account a mismatched check you
haven’t decisioned (A) as otherwise provided below, for mismatched
checks presented over the counter in one of our branches and
(B) mismatched checks that we believe in good faith result solely from
encoding errors. Under the “pay default” option, you authorize us to
finally pay each mismatched check and charge it against the relevant
account unless we receive an instruction from you to return it before the
payment decision deadline. Your election of these options is reflected in
your PPY service profiles as they are in effect at the relevant time. We
may give you the option of not providing information in your issue file on
one or more check attributes (such as the payee name) that the PPY
service is capable of matching. Of course, not matching all available
check attributes increases the risk that a fraudulent check will not be
detected as a mismatched check. As a result, if you make the business
decision of not providing information in your issue file with respect to all
available check attributes, you agree that, in addition to the other limits
on our liability provided by the master agreement, the general terms and
conditions or these PPY terms and conditions, we will not be liable for
paying any check that is fraudulent with respect to the attributes for
which you failed to provide us information, so long as we otherwise
satisfied our duty of care with respect to the other aspects of the PPY
service in processing that check.
(ii) UTeller Access ServiceU. As part of the PPY service,
we can also make your issue files available to our branches to assist our
tellers in cashing checks. This is referred to as “teller access.” If a
check presented for payment over the counter in one of our branches
against an account that uses teller access (A) is presented before we
have received and processed an issue file for such check or (B) is a
mismatched check, we will attempt to obtain approval for payment of the
mismatched check by calling one of the people you have designated as
a “telephone representative” for the relevant account as reflected in your
PPY service profiles as they are in effect at the relevant time. We will
make one attempt to call each telephone representative for the relevant
account until we have reached one of them. Each telephone
representative is authorized to instruct us to pay or return any
mismatched check. If the telephone representative we contact instructs
us to pay the check, then you authorize us to finally pay the check and
charge it against the relevant account. If we are unable to contact a
telephone representative, or the telephone representative we contact
does not instruct us to pay the mismatched check, then you authorize us
to return the check unpaid to the person presenting it to us. Our
documentation showing that we contacted or attempted to contact your
telephone representatives will be conclusive evidence that we took the
reflected action. Fraud involving checks presented to tellers for cashing
is a common form of check fraud. Using our teller access service is a
good way to defend against that form of fraud and we strongly
encourage you to take advantage of it. However, use of the teller
access service is not mandatory and you may make a business decision
to opt out of its use. Of course, opting out of the service increases the
risk that a fraudulent check may be cashed over the counter in one of
our branches. As a result, if you make the business decision to not
name at least one telephone representative for each account for which
you have elected the PPY service, (A) this will be reflected on your PPY
service profiles as they are in effect at the relevant time, (B) you will be
deemed to have opted out of the teller access service for that account
and (C) you agree that we will not have any liability for paying any check
presented over the counter in one of our branches, whether or not such
check bears a forged or unauthorized signature or is counterfeit, altered
or otherwise fraudulent or not validly issued, so long as we otherwise
process that check in accordance with our standard check cashing
procedures.
(b) 7TUReverse Positive Pay or “RPPY” Service OptionU7T. With the
RPPY service, we will provide you with information on all checks (i) that
have been presented to us through normal check clearing channels for
payment against the relevant account, (ii) that we have posted to the
relevant account, and (iii) for which we have provisionally settled. You
Exhibit G - SunTrust Treasury Management Master Agreement
and Terms and Conditions
TREASURY MANAGEMENT
TERMS AND CONDITIONS
Page 50 of 63
must compare that information with your own information on checks that
you have issued from the relevant account. If you determine that a
check included in the information we provide should be returned, you
must notify us by the payment decision deadline set forth in the RPPY
reference materials. If we do not receive a notice from you to return a
check by the payment decision deadline, you authorize us to finally pay
and charge that check against the relevant account. If you select the
RPPY service option, then teller access is not available. As a result,
you agree that if you select the RPPY service for an account we will not
have any liability for paying any check that is presented over the counter
in one of our branches, whether or not such check bears a forged or
unauthorized signature or is counterfeit, altered or otherwise fraudulent
or not validly issued, so long as we otherwise process that check in
accordance with our standard check cashing procedures. Similarly, if
you select the RPPY service option, we may not provide you information
for all check attributes (such as the payee name) that the PPY service is
capable of matching. Of course, not matching all available check
attributes increases the risk that a fraudulent check will not be detected
as a mismatched check. As a result, you agree that, in addition to the
other limits on our liability provided in the master agreement, the general
terms and conditions or these RPPY terms and conditions, if you select
the RPPY service for an account, then we will not be liable for paying
any check that is fraudulent with respect to the attributes for which we
do not provide you information, so long as we otherwise satisfied our
duty of care with respect to the other aspects of the RPPY service in
processing that check.
3. UTransmission of InformationU. We will transmit information
regarding mismatches (for the PPY service) and information regarding
checks that have posted to your account (for the RPPY service) to you
by using certain of our online services. You must transmit your issue
files (if you select the PPY service) and your pay or return decisions (for
both the PPY and RPPY services) to us by using certain of our online
services. Your issue files and pay or return decisions must be in a
format we have approved. If the relevant online service is not available,
then we will transmit the relevant information to you by facsimile at the
facsimile number listed for the relevant authorized representative in your
PPY or RPPY service profiles as they are in effect at the relevant time
and you must transmit your issue files and/or your pay or return decision
to us by facsimile at the facsimile number we specify.
4. ULimits on Our LiabilityU. You acknowledge that we will rely
completely on information and instructions you give us in providing the
PPY and RPPY services to you and that we are not required to inspect
any attribute of a check (other than those included in the relevant issue
file) that is processed through the PPY or RPPY service. As a result,
you agree that in addition to any limitations on our liability under the
agreement, we will not have any liability for (a) following instructions we
receive from any person we believe in good faith is one of your
authorized representatives or telephone representatives or (b) paying or
returning any check in accordance with these PPY and RPPY terms and
conditions, including any check that (i) bears a forged or unauthorized
signature or is counterfeit or otherwise not validly issued or (ii) is altered
or otherwise fraudulent with respect to an attribute that the PPY or
RPPY service is designed to match. Moreover, you acknowledge that
the PPY service is not a substitute for our stop payment service and you
agree not to report an item as “void” if you have released the item.
5. USuspension of ServiceU. You agree that you will be in material
breach of these PPY and RPPY terms and conditions if you repeatedly
fail to meet any of the deadlines described in the PPY reference
materials or have an excessive number of checks not reported on your
issue file for the PPY service or for which the information is not
consistent with our information on checks that have been presented
against the relevant account. In addition to any other rights we may
have under this the agreement or applicable law, we may immediately
suspend your use of the PPY or RPPY services.
Pre-Encoded Deposit Service
1. UDescription of the ServiceU. The SunTrust pre-encoded
deposit or “PED” service allows you to facilitate the processing of your
check deposits by encoding certain information in the MICR line of each
check prior to making the deposit with us. You may use the PED
service with respect to the accounts that are identified in your PED
service profiles as they are in effect at the relevant time and that we
have included in our implementation of your setup for the PED service.
Details regarding PED’s functionality and certain formatting and other
technical requirements that you must follow when using the PED service
are provided in the PED reference materials as we update them from
time to time.
2. UYour Obligations in Making DepositsU.
(a) You must encode, endorse and otherwise process all
checks in accordance with the requirements set forth in the PED
reference materials and place them in a sealed, disposable deposit
bag(s) or similarly designed tamper-proof bag(s) (each such bag is
referred to in these PED terms and conditions a “sealed deposit”) that is
clearly marked with your name or identification number. Before you
begin using the PED service, you must designate (in a form acceptable
to us) the type of bag that you will use. You may not switch to another
type of bag without giving us at least 10 days’ prior written notice. Each
sealed deposit must be prepared in accordance with the requirements
set forth in the PED reference materials. A deposit ticket listing your
name, deposit account number and the amount of checks must be
included in each sealed deposit.
(b) You must cause sealed deposits to be delivered to the
appropriate deposit location(s) that we separately disclose to you from
time to time. Delivery may be by mail, by your designated employees or
by a courier. Before you begin using the PED service, you must
designate (in a form acceptable to us) the delivery method you will use.
You may not switch to another delivery method without giving us at least
10 days’ prior written notice.
(c) We may reject, impose a special fee on and/or delay
processing of any deposit if (i) the deposit ticket does not match the
amount of the deposit, (ii) the deposit was not prepared in accordance
with the requirements set forth in the PED reference materials, (iii) the
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and Terms and Conditions
TREASURY MANAGEMENT
TERMS AND CONDITIONS
Page 51 of 63
deposit is delivered to the wrong deposit location, (iv) the deposit is
delivered by a method other than the one you have designated, or
(v) any deposit bag appears to be unsealed or to have been tampered
with.
(d) In the event that we accept delivery of an unsealed
deposit bag or a deposit bag that appears to have been tampered with
(each such bag is referred to in these PED terms and conditions as an
“unsealed deposit”), we will give you notice on the day we receive it.
Unless you have previously given us instructions on how to process
unsealed deposits, we will not process or take any action regarding an
unsealed deposit until you give us an instruction (in a form acceptable to
us) regarding its disposition.
(e) If you are a financial institution, you act as the bank of
first deposit (BOFD) on all items you deposit with us. This will require
you to place a BOFD endorsement on each physical item deposited with
us. This endorsement must be in compliance with Regulation CC
regarding content and placement. As the BOFD, you are expected to
be the primary agent for resolution of all research items. As the BOFD,
your organization has total access to the clearing cycle of each item
deposited with us. As your clearing agent, we do not have access to all
of the returns information and as such we are less able to resolve all
research items. You may re-deposit indemnified copies of previously
missing items with us at any time through any depository channel.
3. URisk of DeliveryU. You are solely responsible for selecting the
method that you will use to deliver deposits to us, including all risks
relating to or arising out of that delivery method. We have no
responsibility or liability for a deposit until we accept possession of it at
the appropriate deposit location (as evidenced by the signature of one of
our authorized representatives on the courier’s manifest or our issuance
of a receipt acknowledging receipt of the deposit). If you elect to use an
employee or a courier to deliver deposits to us, that employee or courier
must meet the requirements set forth in the PED reference materials
and otherwise be acceptable to us, in our sole discretion. If we
determine that your employee or courier does not meet those
requirements or is otherwise not acceptable to us in our sole discretion,
we may terminate your ability to use the PED service by giving you 10
days’ notice, unless you have switched to another permitted delivery
method or selected a new employee or courier that is acceptable to us
within that 10-day period.
4. UOur Obligations in Processing DepositsU.
(a) We will open each sealed deposit, verify the contents
against the deposit ticket and deposit the checks to the relevant
account. We will process deposits within 24 hours of delivery to the
appropriate deposit location. If there is any discrepancy between the
total amount of the deposit reflected by you on the deposit ticket and the
amount of the deposit reflected by our count, our count will control. A
deposit adjustment notice will be sent to you on the day that the
discrepancy is discovered.
(b) The relationship of debtor and creditor will not exist
between you and us until we deposit the checks to your account.
5. UCash and Other PropertyU. The PED service is only designed
to work with checks. As a result, you agree that we have no liability for
coins, currency or other property placed in deposit bags. If we discover
coins or currency in a deposit bag, we will process it for deposit to the
relevant account and credit that account with the amount of coins or
currency reflected by our count (which will control in the event of a
dispute). We will return any other property we discover in a deposit bag
to you.
6. UReconstructionU. You agree to maintain an image of, or MICR
line information for, each check contained in a deposit to aid in
reconstruction of the deposit if it is lost in transit or otherwise. If you fail
to do so, we will have no liability if the deposit cannot be reconstructed.
7. UYour ObligationsU. In addition to any other obligation you have
to us, you agree to be responsible for any and all liabilities, claims,
damages, losses, demands, fines (including those imposed by any
Federal Reserve Bank, clearing house or funds transfer system),
judgments, disputes, costs, charges and expenses (including litigation
expenses, other costs of investigation or defense and reasonable
attorneys’ fees) which relate in any way to any encoding error on a pre-
encoded check you deposit with us.
Return Items Transmission (“RIT”) Service
1. UDescription of the RIT ServiceU. The SunTrust Return Items
Transmission, or “RIT,” service allows you to receive a data
transmission of information on the checks and other paper items drawn
on domestic institutions that you have deposited into an account you
maintain with us and that were returned unpaid, each a “returned item.”
You may use the RIT service with respect to the accounts that are
identified in the RIT service profiles, as the same may be in effect at the
relevant time, and that we have included in our implementation of your
setup for the RIT service. Details regarding RIT’s functionality and
certain formatting and other technical requirements that you must follow
when using the RIT service are provided in the RIT reference materials
as we update them from time to time.
2. UOperation of the ServiceU.
(a) Each banking day we will transmit or make available a
data file transmission of information from each returned item that had
been deposited into an account included in your setup for that
transmission for the RIT service and that was returned on the prior
banking day. For each returned item deposited in an account included
in your setup for a transmission, we will include in the data file the
returned item information you have selected from the information we
report through the RIT service to have reported for any returned item
deposited into that account. Your selection of what returned item
information to report for an account will be reflected in our
implementation forms. If on any banking day no returned items are
presented for any account included in your setup for a transmission, a
data file transmission will not be prepared for that day.
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and Terms and Conditions
TREASURY MANAGEMENT
TERMS AND CONDITIONS
Page 52 of 63
(b) Each RIT service data file transmission will be
transmitted through our Online File Transfer, or “OFT,” service or
through the transmission means we may otherwise make available from
time to time and that you select. Your OFT contact for the setup of a
transmission must designate an authorized representative responsible
for receiving or retrieving your data file transmissions.
3. USecurity ProceduresU. To retrieve or have us “push” to you
your data file transmission through the OFT service you are required to
comply with the security procedure for the OFT service. In that regard,
you will retrieve your data file transmission after setup on the OFT
service by using the unique OFT user ID and password assigned to your
company for that setup of a transmission for the RIT service. If you
elect for us to “push” your data file transmissions to you through OFT or
by establishing a direct transmission, you must provide us the
information needed to access your computer system to deliver the files.
We will send the URL address and the user ID and password to the
person you designate as your OFT contact. You agree that these
security procedures are commercially reasonable for you. You are
completely responsible for controlling access to and maintaining the
confidentiality of the security procedures and authorization codes and
you must promptly report any breach of that confidentiality to us. You
are also completely responsible for the actions of your users to whom
we or your contact provides authorization codes and any other person
who has obtained access to your authorization codes. You represent
and warrant that you will maintain commercially reasonable security
procedures to prevent unauthorized access to or any misuse of the
information contained in the data file once you have receive the data file
transmission.
4. UMultiple Setups of the RIT ServiceU. If you have requested
that we implement for you more than one setup for a transmission for
the RIT service, a separate company identifier, or “client ID,” number will
be assigned for each of those setups for the RIT service. If you have
more than one setup of the RIT service, each service profile will be for
the setup of the RIT service that is identified by the client ID on that
service profile.
5. ULimitation of Liability Specific to the RIT ServiceU. You
acknowledge that information from returned items may be manually
keyed into the RIT service data file. You also acknowledge that inherent
in the process of manual data entry are mistakes, typos and other
inadvertent errors. We do not warrant that any returned item
information reported will be error free, and we shall have no liability or
other responsibility for errors in any reported returned item information,
unless such errors are caused by our gross negligence or willful
misconduct.
Scannable Lockbox Service
1. UDescription of the SLB ServiceU. The SunTrust Scannable
Lockbox or “SLB” service is designed to facilitate the receipt and
processing of your accounts receivable remittances. Details regarding
SLB’s functionality and certain formatting and other technical
requirements that you must follow when using the SLB service are
provided in the SLB reference materials as we update them from time to
time.
2. UImplementation of the SLB ServiceU. Once we have included
the account(s) identified in your SLB service profiles as they are in effect
at the relevant time in our implementation of your setup for the SLB
service, we will send you a copy of your initial lockbox operating
instructions for a particular lockbox number and will update those
instructions from time to time based on information you give us. To the
extent you elect to have us process items that are not accompanied by
coupons through our wholesale lockbox system, we will also give you a
copy of the instructions for that system. Once we send you a copy of
the initial instructions, we will begin providing the SLB service for you
with respect to the account(s) described in those instructions.
3. URequest for Image ServicesU. The Image services enable you
to view images of checks and remittance payment information that are
received through your lockbox. You can access these images and
transaction information through Image Browser, Image CD ROM and/or
Image Transmission Details regarding these services, their functionality
and certain requirements that you must follow when using the Image
services are provided in the Image reference materials as they are
updated from time to time. We will provide you one or more of the
following image service(s) for each lockbox as reflected in your SLB
service profiles as they are in effect at the relevant time:
(a) Image Browser - internet-based access to your lockbox
images and data with flexible viewing parameters and search capability
for check and document information using a specific date or several
search criteria, administrative management over users and their access
privileges, Web-accessible historical data, exportable transaction
information, check and document images that can be emailed directly
from this Image service and annotation tools that can be used to create
notes or highlight information on check or document images that can be
saved for future reference. Batch Download, Full Text Search, Remitter
Keying capabilities and direct access to the image browser using
Lockbox Programmer Interface are also available as additional service
selections. You must designate (in a form that is acceptable to us) a
security administrator responsible for setting up and maintaining your
users’ access to the Image Browser service. We will assign a unique
user-specific user ID and password to this designated security
administrator and enable access to Image Browser service for the
lockbox accounts which have been set up for you. This person has all
of the rights and responsibilities described in the general terms and
conditions. If you implement image archival services as part of your
Image Browser service and your Image Browser service is later
terminated, upon request from you, we can create a CD ROM of your
archived data and mail it to you.
(b) Image CD ROM - after delivery by mail, you have access
to your lockbox images along with index fields of information for long
term archival purposes. CD ROM of lockbox images can be downloaded
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and Terms and Conditions
TREASURY MANAGEMENT
TERMS AND CONDITIONS
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onto your computer. You must designate (in a form that is acceptable to
us) a security administrator responsible for using the software needed to
access the CD ROM of your lockbox images. The CD ROM will be
encrypted to protect your data during transit in the mail. We will provide
(by e-mail) a unique PIN number that your security administrator will use
to de-encrypt and access the CD ROM. This person has all of the rights
and responsibilities described in the general terms and conditions.
(c) Image Transmission file - customized access to your
lockbox images along with index fields of information that can be
downloaded directly into your Accounts Receivable systems. Image
Transmission files are encrypted and are transmitted using File Transfer
Protocol (FTP). You must designate (in a form that is acceptable to us)
a technical contact responsible for receiving or retrieving your Image
Transmission files. You will retrieve your Image Transmission files by
accessing a FTP site and by using the unique user ID and password
assigned to your company. If you elect for us to “push” your Image
Transmission files to you, you can provide us the information needed to
access your computer system to deliver the files. We will send the URL
address and the user ID and password to the person you designate as
your contact. This person has all of the rights and responsibilities
described in the general terms and conditions.
You agree that the security procedures for each of the Image services
you select are commercially reasonable.
4. UProcessing of DepositsU. We will establish one or more post
office boxes or “lockboxes” in your name as described in your SLB
service profiles as they are in effect at the relevant time. On each
banking day after a lockbox has been established, we will process the
checks, drafts and money orders (all of which are referred to as “items”)
received in a lockbox in accordance with the instructions in effect at the
relevant time and send you deposit advices for those items.
(a) UAutomated Processing SystemU. We process items
through the use of automated systems. You must design your
remittance documents (which are referred to as “coupons”) to include
supporting documentation containing the information required for us to
identify and validate items for automated processing. We will test the
performance of your coupons and will only begin providing the SLB
service to you only upon the satisfactory completion of the test.
(b) UItems With CouponsU. We will process items that are
accompanied by coupons automatically for deposit into the relevant
account. We will not inspect these items for payee name, drawer
signature, date, or for items and/or accompanying correspondence
containing “payment in full” or other similar payment dispute language.
We will not be liable for processing or depositing items without
inspecting them for issues relating to any of these attributes.
(c) UItems Without CouponsU. Items that are not accompanied
by coupons will be returned to you or processed manually as directed in
the instructions. If we process items, we will use good faith efforts to
inspect them as follows: (i) an item containing a payee name that does
not reasonably correspond with your acceptable payee list (if you have
given us one) will be handled in accordance with the instructions in
effect at the relevant time; and (ii) if an item contains inconsistent written
and numeric amounts, the item will be deposited for the written amount
unless the instructions that are in effect at the relevant time direct
otherwise. You agree that we do not fail to exercise good faith efforts to
inspect an item solely because we process it in a manner inconsistent
with this paragraph. We will not inspect (i) any processed item for the
drawer’s signature or date or (ii) unless otherwise agreed in writing and
in exchange for the payment of a separate per item fee, any processed
item and/or accompanying correspondence for “payment in full” or other
similar payment dispute language. We will not be liable for any loss
resulting from processing any such items, including any items we may
inspect for “payment in full” or similar payment dispute language under a
separate written agreement. As a part of processing an item, we will
enter data regarding certain aspects of an item (such as the drawer’s
name and the account invoice number shown on the item) into the data
file you will receive. You agree that we will not be liable for good faith
errors in any of that data.
(d) UEndorsementU. We will endorse items for deposit with our
standard lockbox endorsement and deposit them to the relevant
account. We will not be liable for any loss relating to our failure to
endorse an item properly.
(e) UStop FileU. You may give us a file of items that you do not
want us to process. Your file must be in the format and contain the
information that we separately disclose to you from time to time with
respect to each item that you do not want us to process and we must
receive it a reasonable period of time before the items in question are
received in a lockbox. We will use good faith efforts to stop processing
items described in your file and return them to you, but we will not have
any liability if we process any such item.
(f) UForwarding ItemsU. If you receive an item that should
have been delivered to a lockbox, you may forward it to our lockbox
department. We will process all such items (whether accompanied by a
coupon or not) automatically and without inspecting them. If you have
more than one lockbox, you must designate the lockbox through which
we should process the item.
(g) UCash and Other PropertyU. We will deposit any cash
received in a lockbox into the relevant account. Any property other than
items, cash and related remittance materials received in a lockbox will
be sent to you. You agree that we have no liability for any cash or other
property received in a lockbox.
(h) UData FilesU. On each banking day, we will make a data
file regarding the items processed in each lockbox that day available to
you through one of our online services. The data file will be in the
format and will contain the information described in the SLB reference
materials and the instructions in effect at the relevant time. We will
make this information available on each banking day by the reporting
time(s) disclosed in the SLB reference materials and the instructions in
effect at the relevant time.
5. URemittance MaterialsU. We will destroy the coupons within five
business days after we receive them. We will only return
correspondence and other materials (“original remittance materials”)
received in a lockbox to you if the instructions in effect at the relevant
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and Terms and Conditions
TREASURY MANAGEMENT
TERMS AND CONDITIONS
Page 54 of 63
time direct us to return those materials. We will destroy the original
remittance materials within five business days after we receive them.
Once we destroy the original remittance materials, the images of them
that we may capture during their processing will be the only source of
information about their contents. You agree that we will have no liability
for any missed image or if any image we capture is not legible.
6. UAffiliate DepositsU. If you have not given us an acceptable
payee list, you represent and warrant to us that you have the authority
to have each item received in a lockbox endorsed and deposited into
your account(s), even if the payee name on an item is not your name as
shown in our records. In addition, if you have given us an acceptable
payee list, you represent and warrant to us that if any name on that list
that is a separate legal entity (rather than merely a “d/b/a” or trade name
that you use), you have authority from that entity to have items payable
to it endorsed and deposited into your account(s). You agree to provide
us with satisfactory evidence of that authority upon request.
7. UReturn ItemsU. Unless otherwise stated in the instructions, we
will handle dishonored or returned items in accordance with our rules
and regulations for deposit accounts in effect at the relevant time.
8. UTerminationU. If these SLB terms and conditions or the
agreement is terminated, we will complete the processing of items we
received prior to the termination date. For a period of 90 days after the
termination date, we will forward all lockbox remittances to you or as
you may otherwise direct (in a form acceptable to us). After that time,
we will stamp all remittances “refused” and return them to the sender.
Smart Safe Daily Deposit Posting Service
1. Description of the Smart Safe Daily Deposit Posting Service.
The SunTrust Smart Safe Daily Deposit Posting or “SSDDP” service is
designed to facilitate your deposit needs by allowing you to include in
your daily cash vault deposit totals the amount of currency reported
electronically by a smart safe as having been accepted into that smart
safe. Your use of the SSDDP service is subject to the terms and
conditions for the cash vault service.
2. Definitions. The following terms have the specified meanings
for the purposes of these SSDDP terms and conditions:
(a) “UElectronic feedU” means an electronic file transmission
from a smart safe to the safe provider that services that smart safe
reporting the value of all currency accepted into that smart safe since
the last such electronic file transmission from that smart safe to such
safe provider.
(b) “UElectronic posting fileU” means an electronic file created
and transmitted to us by a safe provider, specifying by safe location the
total amount of currency accepted into all of your smart safes serviced
by such safe provider, based on the amounts reported by the electronic
feeds of those smart safes, since the last such electronic file was
created and transmitted to us by that safe provider.
(c) “ULoose currencyU” means any currency dropped into the
drop slot of a smart safe for safekeeping, rather than being inserted into
the note acceptor on the safe for purposes of being accepted, counted
and reported by the smart safe. Loose currency dropped into the drop
slot is not deemed accepted by the smart safe, will not be counted by or
included in an electronic feed from the smart safe, and for purposes of
these SSDDP terms and conditions is not considered part of the
contents of the safe.
(d) “Smart safe” means an intelligent safe (and related
software and accessories) that can count, record and electronically
report the currency accepted into it and that is compatible with the
SSDDP service.
(e) “USafe locationU” means a location where you maintain a
smart safe and which we have agreed to include in our implementation
of your setup for the SSDDP service as reflected in our records as they
are in effect at the relevant time.
(f) “USafe providerU” means a third-party armored courier or
other vendor that provides you a smart safe and with whom we have an
agreement regarding certain issues relating to your use of that smart
safe.
3. USmart Safe(s)U. To use the SSDDP service, you must obtain
one or more smart safes. You acknowledge that you will obtain each
smart safe directly from a safe provider and, as a result, all warranty
obligations and contracts are to be handled directly with that safe
provider. In no event will we be responsible for any aspect of the use or
maintenance of any smart safe or the acts or omissions of any safe
provider. You must identify (in a form acceptable to us) the safe
location and safe provider for each smart safe and may not change the
safe location or safe provider for a smart safe without giving us notice
(in a form acceptable to us) at least 5 business days before such
change takes effect.
4. UScheduled Pickups; Physical DeliveryU. You must have the
contents of each smart safe picked up by the relevant safe provider at
least once each week. If a scheduled pick-up falls on a holiday for you
or that safe provider, the pick-up must occur on the next day that is a
business day for both you and that safe provider. You are solely
responsible for engaging the relevant safe provider as your armored
courier to deliver the currency contained in each smart safe to such safe
provider’s processing site, count and verify the contents of the smart
safe, and deliver the currency to us. We have no responsibility or
liability for any currency contained in a smart safe until the relevant safe
provider delivers the currency to us by physically placing that currency
in our inventory held at such safe provider’s processing site. Any loose
currency must be prepared, placed in a sealed, disposable deposit bag
and delivered by your armored courier to the appropriate vault location
in accordance with the terms and conditions for the cash vault service.
Exhibit G - SunTrust Treasury Management Master Agreement
and Terms and Conditions
TREASURY MANAGEMENT
TERMS AND CONDITIONS
Page 55 of 63
5. UBack-up ReportsU. Upon our request, you will provide back-up
information to verify the amount of currency deposited in each smart
safe, including copies of the content reports and your business records.
6. UElectronic Posting; Cut-off TimeU. We will process an
electronic posting file and post the total amount of currency reported for
you in that electronic posting file to the account(s) included in your setup
of the SSDDP service which you designated, as reflected in our records
as they are in effect at the relevant time, as part of our nightly deposit
account processing on the night of our business day that we received
such electronic posting file. If we receive an electronic posting file from
a safe provider after the cut-off time on a business day that we
separately disclose to you from time to time, that electronic positing file
will be deemed to have been received by us on our next business day.
7. UProvisional Credits; Adjustments; DiscrepanciesU. You
acknowledge and agree that any credits posted to your account(s)
based on the amount of currency reported by a safe provider in an
electronic posting file are provisional. We may make adjustments to
your account(s), without prior notice to you, if the amount of the
currency delivered to us by a safe provider is different than the amount
reported in an electronic posting file or we otherwise do not receive all
currency for which you have been given a provisional credit. For
example, we may make adjustments to your account(s) if an electronic
feed over-reports the amount of the currency accepted into a smart
safe, if a safe provider misreports in an electronic posting file the
amount of currency reported in an electronic feed or if a smart safe or
the currency it contains are lost, stolen or destroyed before that
currency is physically placed in our inventory held at the relevant safe
provider’s processing site. In addition to any other rights we may have,
if there are insufficient funds in the account(s) to cover any such
adjustment, then you agree to reimburse us on demand for the
remaining amount of such adjustment and you authorize us to set-off
the remaining amount of such adjustment against any other accounts
you have with us and contents of any smart safe. The contents of each
smart safe will be counted and verified by the relevant safe provider
prior to being physically placed in our inventory held at that safe
provider’s processing site. We do not have any responsibility or liability
for any discrepancy between the amount of currency reported by any
smart safe and the amount of currency counted by the relevant safe
provider. If there is a discrepancy between the amount of the currency
reported by a smart safe and the count of that currency by the relevant
safe provider, the safe provider's count will control. Similarly, we do not
have any responsibility or liability for any discrepancy between the
amount of currency counted by the relevant safe provider and our count
of that currency. If there is a discrepancy between a safe provider's
count of currency in a smart safe and our count of the currency from that
smart safe that is physically placed in our inventory held at such safe
provider’s processing site, our count will be final.
8. UOwnership, Pick-up and Shortfalls of CurrencyU. If we have
given you provisional credit on the basis of an electronic posting file,
then you agree that the currency contained in your smart safe(s) to
which that provisional credit relates is our property, and we may pick up
that currency at any reasonable time. You will take any actions we
reasonably request to assist us in picking up the contents from your
smart safe(s). If, notwithstanding your agreement that ownership of
currency contained in a smart safe is transferred to us at the time we
provisionally credit your account(s) for that currency, it is ever
determined that you have any ownership or other rights in that currency,
then (a) you grant us a security interest in all your right, title and interest
in such currency to secure all of your obligations to us with respect to
the SSDDP service and (b) you acknowledge that your safe provider is
acting as our agent solely for the purpose of taking possession of such
currency. Notwithstanding the foregoing, and except as provided in the
next sentence, you will still be liable for the loss of any currency from
any smart safe until the relevant safe provider physically places that
currency in our inventory held at such safe provider’s processing site. If
we pick up the currency held in a smart safe, then you will not be
responsible for the loss of that currency (as reflected in the contents
report generated by such smart safe at the time we pick up such
currency) once it has been delivered to us or our armored courier. You
will not make any demand or bring any claim, action or proceeding of
any kind against any of our armored couriers, including any safe
provider serving as our armored courier, related to any of those armored
couriers picking up the contents of a smart safe or otherwise following
our instructions with respect to the contents of a smart safe. If, at any
time, there is not enough currency in that smart safe to satisfy both our
claim to the amount of currency that is our property and your claim to
any additional currency that the smart safe reports has been accepted
into it, then the currency that is in such smart safe will be allocated first
to satisfy our claim in full before any such currency is allocated to satisfy
any part of your claim. This means that you will be responsible for any
currency shortfall in such smart safe. For example, if we have given you
provisional credit for $1,000 with respect to the currency that has been
accepted into a smart safe as reported in an electronic posting file and
the smart safe also reports that it has accepted an additional $500, then
the smart safe should contain a total of $1,500 in currency. If, however,
the smart safe contains only $1,200 at the time we pick up the currency
that is our property from that smart safe, we would be entitled to the full
$1,000 that is our property before you would be entitled to any currency.
As a result, you would be responsible for the entire currency shortfall
($300 in this example) and would only have a claim to the remaining
currency in such smart safe ($200 in this example). Moreover, if the
smart safe contains only $900 at the time we pick up the currency that is
our property from that smart safe, we would be entitled to the full $900
that is our property and we would also be entitled to an adjustment to
your account(s) and exercise any other rights and remedies we have
against you to recover the remaining $100 that is our property. You
would not be entitled to any currency in such smart safe in this example.
9. UCash Vault ServiceU. These SSDDP terms and conditions are
expressly made a part of the terms and conditions for the cash vault
service and are subject to the terms and conditions for the cash vault
service. Terms that are defined in the terms and conditions for the cash
vault service have the same meanings when used in these SSDDP
terms and conditions. If there is any inconsistency on a particular issue
between these SSDDP terms and conditions and the terms and
conditions for the cash vault service, these SSDDP terms and
conditions will control. You understand and agree, however, that our
agreement to provide the SSDDP service does not permit you to use
any other aspect of the cash vault service unless we have agreed to
include it in our implementation of your setup for the cash vault service.
Exhibit G - SunTrust Treasury Management Master Agreement
and Terms and Conditions
TREASURY MANAGEMENT
TERMS AND CONDITIONS
Page 56 of 63
Your right to use the SSDDP service will terminate immediately upon
termination of your right to use the cash vault service.
10. UTerminationU. We may terminate the SSDDP Service
immediately by giving you written notice of that termination. You may
terminate your use of the SSDD Service by giving us written notice of
that termination; provided that any termination by you will not be
effective until we have had a reasonable time to act on your notice.
Tax Payment Service
1. UDescription of the TTAXplus ServiceU. The SunTrust Electronic
Tax Payment or “TTAXplus®” service allows you to initiate federal and
state electronic tax payment entries through the automated clearing
house (“ACH”), which is a funds transfer system for sending and settling
electronic entries among participating financial institutions. Details
regarding functionality and certain requirements that you must follow
when using the service are provided in the TTAXplus reference
materials, which are made a part of this agreement, as they are updated
from time to time.
2. UFunctioning of the TTAXplus ServiceU. Under the TTAXplus
service, we act as the originating depository financial institution or
“ODFI” with respect to tax payment entries that you send us or that are
sent to us on your behalf for the Federal Tax ID Numbers that you have
identified (in a form acceptable to us) and we have included in our
implementation of your setup for the TTAXplus service. Those tax
payments entries will be settled to the account that is identified in your
TTAXplus service profile as it is in effect at the relevant time. You may
use the TTAXplus service to send us state tax payment entries with
respect to any state tax authority supported by the service after you
have complied with our service requirements and the state enrollment
process. You will be the “originator” for each of those entries (as that
term is defined in) and your use of the TTAXplus service is subject to
and you are bound by the National Automated Clearing House
Association Rules and Operating Guidelines as in effect at the relevant
time.
3. UYour WarrantiesU. You represent and warrant to us that (i) you
will complete and return to us IRS Form 8655-Reporting Agent
Authorization and (ii) you will comply with all equivalent state tax
payment requirements. You agree to immediately notify us if any
representation or warranty you make to us is no longer true.
4. UOrigination and Processing of EntriesU. You must send all tax
payment entries to us by using the procedures set forth in the TTAXplus
reference materials. You will fund all tax payments at least two
business days prior to the date established for us to process and settle
your tax payment entries and we may not process tax payment entries if
timely funding has not occurred. Failure to provide timely funding may
be deemed a material violation of this agreement. If we receive your
tax payment entries after the delivery deadline set forth in the TTAXplus
reference materials, we will treat them as if we received them on our
next business day. We will format, process and settle to the account
identified in your TTAXplus service profile as it is in effect at the relevant
time, all tax payment entries that we receive from you in accordance
with the ACH Rules, this agreement and the TTAXplus reference
materials.
5. USecurity ProceduresU. The following security procedures apply
to all tax payment entries:
(a) UAccess CodeU. We will give you an authorization code
that the TTAXplus system may refer to as an access code. You must
use the access code (or your Tax Payment Identification Number) to
send us a tax payment entry for any Federal Tax ID Number that we
have included in your setup for the service.
(b) UPassword/PINU. We will give you another authorization
code that the TTAXplus system may refer to as a password or PIN.
Each password/PIN is uniquely linked to a particular Federal Tax ID
Number and for each Federal Tax ID Number you must use the
appropriate password/PIN for each particular tax payment entry you
want to send us.
The authorization codes are not user-specific. This means that all of
your authorized users must use the same set of authorization codes to
initiate a tax payment entry for a particular Federal Tax ID Number. We
will send all of the authorization codes to the person identified as your
"contact" in your TTAXplus service profile as it is in effect at the relevant
time. Your contact is then responsible for distributing the authorization
codes to your users. You agree that these security procedures are
commercially reasonable.
Universal Payment Identification Code Service
1. UDescription of the UPIC ServiceU. The SunTrust Universal
Payment Identification Code or “UPIC” service provides a unique
number assigned to one of your SunTrust demand deposit accounts,
which you can provide to your trading partners who make payments to
you through ACH. Your use of the UPIC service allows you to mask
your banking relationship and account number to reduce the risk of
fraudulent use of your account. Details regarding UPIC's functionality
and certain formatting and other technical requirements that you must
follow when using the UPIC service are provided in the UPIC reference
materials as we update them from time to time.
2. URoles under the UPIC ServiceU. We will assign a separate
UPIC number to each of your eligible accounts that is identified in your
UPIC service profiles as they are in effect at the relevant time. Under
the UPIC Service, we act as the receiving depository financial institution
or “RDFI” with respect to UPIC entries that are sent to us on your behalf.
As a Receiver, you agree to comply with the National Automated
Clearing House Association “NACHA” Rules and to comply with any
UPIC rules and procedures as adopted by The Clearing House
Payments Company L.L.C.
Exhibit G - SunTrust Treasury Management Master Agreement
and Terms and Conditions
TREASURY MANAGEMENT
TERMS AND CONDITIONS
Page 57 of 63
3. UEligible AccountsU. The UPIC service may only be used for a
demand deposit account or other transaction account of a corporation,
partnership, limited liability company, or unincorporated association; the
United States or an agency of the United States; a state or local
government or an agency of a state or local government; or one or more
individuals when the account is used primarily for business purposes.
An account of one or more individuals used primarily for personal or
household purposes may not be used with the UPIC Service.
4. UUse of UPIC NumberU. The UPIC number is only to be used
for incoming electronic ACH credits. You may provide the UPIC number
and the related universal routing number to your business trading
partners that wish to originate ACH credit entries to you. You represent
that you have not and will not authorize any person or entity to originate
any debit entries using the assigned UPIC number. We may terminate
your use of the UPIC service at any time.
Wholesale Lockbox Service
1. UDescription of the WLB ServiceU. The SunTrust Wholesale
Lockbox or “WLB” service is designed to facilitate the receipt and
processing of your accounts receivable remittances. Details regarding
WLB’s functionality and certain formatting and other technical
requirements that you must follow when using the WLB service are
provided in the WLB reference materials as we update them from time
to time.
2. UImplementation of the WLB ServiceU. Once we have included
the account(s) identified in your WLB service profiles as they are in
effect at the relevant time in our implementation of your setup for the
WLB service, we will send you a copy of your initial lockbox operating
instructions for a particular lockbox number and will update those
instructions from time to time based on information you give us. Once
we send you a copy of the initial instructions, we will begin providing the
WLB service for you with respect to the account(s) described in those
instructions.
3. URequest for Image ServicesU. The Image services enable you
to view images of checks and remittance payment information that are
received through your lockbox. You can access these images and
transaction information through Image Browser, Image CD ROM and/or
Image Transmission file. Details regarding these services, their
functionality and certain requirements that you must follow when using
the Image services are provided in the Image reference materials as
they are updated from time to time. We will provide you one or more of
the following image service(s) as reflected in your WLB service profiles
as they are in effect at the relevant time:
(a) Image Browser - internet-based access to your lockbox
images and data with flexible viewing parameters and search capability
for check and document information using a specific date or several
search criteria, administrative management over users and their access
privileges, Web-accessible historical data, exportable transaction
information, check and document images that can be emailed directly
from this Image service and annotation tools that can be used to create
notes or highlight information on check or document images that can be
saved for future reference. Batch Download, Full Text Search, Remitter
Keying capabilities and direct access to the image browser using
Lockbox Programmer Interface are also available as additional service
selections. You must designate (in a form that is acceptable to us) a
security administrator responsible for setting up and maintaining your
users’ access to the Image Browser service. We will assign a unique
user-specific user ID and password to this designated security
administrator and enable access to Image Browser service for the
lockbox accounts which have been set up for you. This person has all
of the rights and duties described in the general terms and conditions.
If you implement image archival services as part of your Image Browser
service and your Image Browser service is later terminated, upon
request from you, we can create a CD ROM of your archived data and
mail it to you.
(b) Image CD ROM - after delivery by mail, you have access
to your lockbox images along with index fields of information for long
term archival purposes. CD ROM of lockbox images can be downloaded
onto your computer. You must designate (in a form that is acceptable to
us) a security administrator responsible for using the software needed to
access the CD ROM of your lockbox images. The CD ROM will be
encrypted to protect your data during transit in the mail. We will provide
(by e-mail) a unique PIN number that your security administrator will use
to de-encrypt and access the CD ROM. This person has all of the rights
and responsibilities described in the general terms and conditions.
(c) Image Transmission file - customized access to your
lockbox images along with index fields of information that can be
downloaded directly into your Accounts Receivable systems. Image
Transmission files are encrypted and are transmitted using File Transfer
Protocol (FTP). You must designate (in a form that is acceptable to us)
a technical contact responsible for receiving or retrieving your Image
Transmission files. You will retrieve your Image Transmission files by
accessing a FTP site and by using the unique user ID and password
assigned to your company. If you elect for us to “push” your Image
Transmission files to you, you can provide us the information needed to
access your computer system to deliver the files. We will send the URL
address and the user ID and password to the person you designate as
your contact. This person has all of the rights and duties described in
the general terms and conditions.
You agree that the security procedures for each of the Image services
you select are commercially reasonable.
4. UProcessing of DepositsU. We will establish one or more post
office boxes or “lockboxes” in your name as described in your WLB
service profiles as they are in effect at the relevant time. On each
banking day after a lockbox has been established, we will process the
checks, drafts and money orders (all of which are referred to as “items”)
received in a lockbox in accordance with the instructions in effect at the
relevant time and send you deposit advices for those items.
(a) UEndorsementU. We will endorse items for deposit with our
standard lockbox endorsement and deposit them to the relevant
account. We will not be liable for any failure to endorse an item
properly.
Exhibit G - SunTrust Treasury Management Master Agreement
and Terms and Conditions
TREASURY MANAGEMENT
TERMS AND CONDITIONS
Page 58 of 63
(b) UForwarding ItemsU. If you receive an item that should
have been delivered to a lockbox, you may forward it to our lockbox
department. If you have more than one lockbox, you must designate
the lockbox through which we should process the item.
(c) UInspection of ItemsU. We will use good faith efforts to
inspect items as follows: (i) an item containing a payee name that does
not reasonably correspond with your acceptable payee list (if you have
given us one) will be handled in accordance with the instructions in
effect at the relevant time; and (ii) if an item contains inconsistent written
and numeric amounts, then: (A) if the item is accompanied by an invoice
and one of the amounts is consistent with the invoice amount, the item
will be deposited for the invoice amount or (B) if (1) the item is
accompanied by an invoice and neither of the amounts is consistent
with the invoice amount or (2) the item is not accompanied by an
invoice, the item will be deposited for the written amount unless the
instructions that are in effect at the relevant time direct otherwise. You
agree that we do not fail to exercise good faith efforts to inspect an item
solely because we process it in a manner inconsistent with this
paragraph.
(d) USignature, Date or Disputed ItemsU. We will not inspect
(i) any item for the drawer’s signature or date or (ii) unless otherwise
agreed in writing and in exchange for the payment of a separate per
item fee, any item and/or accompanying correspondence for “payment
in full” or other similar payment dispute language. We will not be liable
for any loss resulting from processing any such items, including any
items we may inspect for “payment in full” or similar payment dispute
language under a separate written agreement.
(e) UCash and Other PropertyU. We will deposit any cash
received in a lockbox into the relevant account. Any property other than
items, cash and related remittance materials received in a lockbox will
be sent to you. You agree that we have no liability for any cash or other
property received in a lockbox.
5. URemittance MaterialsU. We will only return to you the original
remittance materials (such as invoices, payment coupons,
correspondence and the like) received in a lockbox if the instructions in
effect at the relevant time direct us to return those materials. We will
destroy the original remittance materials within 10 days after we receive
them. Once we destroy the original remittance materials, the images of
them that we may capture during their processing will be the only source
of information about their contents. You agree that we will have no
liability for any missing image or if any image we capture is not legible.
6. UAffiliate DepositsU. If you have not given us an acceptable
payee list, you represent and warrant to us that you have the authority
to have each item received in a lockbox endorsed and deposited into
your account(s), even if the payee name on an item is not your name as
shown in our records. In addition, if you have given us an acceptable
payee list, you represent and warrant to us that if any name on that list
that is a separate legal entity (rather than merely a “d/b/a” or trade name
that you use), you have authority from that entity to have items payable
to it endorsed and deposited into your account(s). You agree to provide
us with satisfactory evidence of that authority upon request.
7. UReturn ItemsU. Unless otherwise stated in the instructions, we
will handle dishonored or returned items in accordance with our rules
and regulations for deposit accounts in effect at the relevant time.
8. UTerminationU. If your use of the WLB service or the agreement
is terminated, we will complete the processing of items we received prior
to the termination date. For a period of 90 days after the termination
date, we will forward all lockbox remittances to you or as you may
otherwise direct (in a form acceptable to us). After that time, we will
stamp all remittances “refused” and return them to the sender.
Wire Transfer Service
1. UDescription of the Wire Transfer ServiceU. The SunTrust Wire
Transfer service is a funds transfer system that is available over the
Internet through certain designated online services or dedicated
telephone lines for sending and settling payment orders among
participating financial institutions. You may use the Wire Transfer
service with respect to the accounts and authorized senders that you
have identified (by your confirmation of a Wire Schedule A and H
Service Profile and acceptance of the SunTrust Funds Transfer
Agreement) and that we have included in our implementation of your
setup for the Wire Transfer service. Details regarding the SunTrust
Funds Transfer Agreement are provided as an addendum to these
Terms and Conditions as we update them from time to time. In the
event of any conflict between these Terms and Conditions and the
SunTrust Funds Transfer Agreement, the Agreement will prevail.
2. UDesignation of Authorized SendersU. In order to use the Wire
Transfer service, you must designate person(s) as Authorized Senders
who will initiate and verify payment orders and provide instructions with
respect to any authorized account. These persons will have all of the
rights and responsibilities described in the SunTrust Funds Transfer
Agreement and will be identified in your Wire Transfer service profiles
as they are in effect at the relevant time.
3. USecurity ProceduresU. The security procedures for the Wire
Transfer service include the requirement that your Authorized Senders
use the PIN codes that we will assign as described in the SunTrust
Funds Transfer Agreement. You agree that these security procedures,
as defined in the SunTrust Funds Transfer Agreement are commercially
reasonable.
Zero Balance Account Service
1. UDescription of the ZBA ServiceU. The SunTrust Zero Balance
Account or “ZBA” service allows you to manage your cash flow by
aggregating debit and credit entries from one or more zero balance or
“subsidiary” accounts to a master account on a daily basis.
2. UDaily Posting and FundingU. You may use the ZBA service
with respect to the subsidiary accounts, master accounts any
supermaster accounts (if any) reflected in your ZBA service profiles as
they are in effect at the relevant time and that we have included in our
implementation of your setup of the ZBA service. At the end of each
Exhibit G - SunTrust Treasury Management Master Agreement
and Terms and Conditions
TREASURY MANAGEMENT
TERMS AND CONDITIONS
Page 59 of 63
banking day, we will transfer all debit and credit entries that were posted
to a subsidiary account that banking day to the master account for that
subsidiary account as identified in your ZBA service profiles as they are
in effect at the relevant time, so that each subsidiary account has a zero
ledger balance (or the target ledger balance, if any, indicated for that
subsidiary account in your ZBA service profiles as they are in effect at
the relevant time) at the end of each banking day. We will do this by
posting to the relevant master account a single debit entry equal to the
total amount of all checks, drafts, withdrawals and other debits (if any) in
each subsidiary account, and a single credit entry equal to the total
amount of all deposits, transfers and other credits (if any) in each
subsidiary account or, at your option, we will post to the relevant master
account a single entry equal to the net debit or credit activity in each
subsidiary account. When we post these entries to a master account,
we will also post offsetting entries to the relevant subsidiary account.
You agree to maintain sufficient available balances at all times in each
master account identified in your ZBA service profiles as they are in
effect at the relevant time to cover any debit activity (and any target
ledger balances) of all subsidiary accounts funded by that master
account as well as any debits presented directly against that master
account. We are not obligated to pay checks, drafts, withdrawal
requests or other debits presented against a master account or a
subsidiary account unless there are sufficient available funds on deposit
in the applicable master account. You agree that we may fund
subsidiary account activity from the applicable master account identified
in your ZBA service profiles as they are in effect at the relevant time
whether or not the ownership and/or authorized signers of the subsidiary
account are the same as those for the master account.
3. USuper Master AccountsU. If you have identified one or more
super master accounts in your ZBA service profiles as they are in effect
at the relevant time, any master account funded by the super master
account will be treated as a subsidiary account of that super master
account.
4. UDuration and Changing of OptionsU. Once you have confirmed
a service profile for this service and we have included the information
from it in our implementation of your setup for the ZBA service, we will
post the total of all debits and the total of all credits (or, at your option,
the net amount of all debits and credits) from each subsidiary account to
the relevant master account in accordance with the selections reflected
in that service profile for this service until (a) your use of the ZBA
service or the agreement is terminated or (b) you confirm a ZBA service
profile that adds, deletes or modifies your previous selections and we
have had a reasonable time to act on it before we receive the relevant
debits or credits.
5. UTermination of ServiceU. We may terminate the ZBA service
immediately by giving you notice of the termination. You may terminate
the ZBA service by giving us notice of the termination, provided that any
termination by you will not be effective until we have had a reasonable
time to act on your notice.
Exhibit G - SunTrust Treasury Management Master Agreement
and Terms and Conditions
TREASURY MANAGEMENT
TERMS AND CONDITIONS
Page 60 of 63
Funds Transfer Agreement
This SunTrust Funds Transfer Agreement, the terms and conditions
of which are set forth below, shall govern all funds transfers between
Bank and Customer.
1. Definitions. The following are defined terms:
Account means the account(s) designated by Customer on its
Schedule A to this Agreement (as superseded from time to time by
Customer as provided herein) to be used as the source of payment for
Payment Orders.
Authorized Sender means a person designated by Customer on
its Schedule A to this Agreement (as superseded from time to time by
Customer as provided herein), authorized to submit and/or verify
Payment Orders and Instructions to Bank.
Bank means the SunTrust Bank(s) where the Account is
maintained, its/their successors and assigns.
Confirmation means any notice (oral, written, electronic, or
otherwise) informing Customer of the date and amount of each Transfer
to or from an Account.
Customer means the individual who or entity which signed
Schedule A to this Agreement.
Instructions means the Transfer related directions given by an
Authorized Sender to Bank, including amendments or cancellations of
Payment Orders.
Payment Order means a request (oral, written, or electronic) from
an Authorized Sender directing Bank to initiate a Transfer from an
Account.
International Payment Order means a Payment Order in which
the beneficiary’s bank is located outside of the United States.
PIN means the personal identification number assigned by Bank to
each Authorized Sender.
Repetitive Transfers mean Transfers initiated by Payment Orders
in which the debit and beneficiary information designated by Customer
on its Schedule B to this Agreement (as amended from time to time by
Customer) remains constant, but the date and dollar amount vary.
Standing Order Transfers mean Transfers made as ordered by
Customer on its Schedule D to this Agreement (as amended from time
to time by Customer) in which the debit and beneficiary information
remain constant, but the date and dollar amount may vary.
Statement means Customer’s periodic Account statement.
Transfer means a transfer of funds by Fedwire, SWIFT, telex,
computer terminal, electronic, or other means, including Repetitive
Transfers and Standing Order Transfers, but excluding transfers made
through the ACH system, as defined by the operating rules of the
National Automated Clearing House Association.
Test Key means a method for detecting errors in the amount of a
Payment Order through codes, mathematical equations, identifying
words, or numbers.
2. Authorized Sender.
Authorized Senders may provide Payment Orders and Instructions
to Bank with respect to any authorized Account. If Customer desires to
revoke or modify the authority of any Authorized Sender or add
additional Authorized Senders, Customer shall execute and deliver to
Bank a new Schedule A which shall supersede its prior Schedule A and
revoke all prior authorizations. In addition to listing new Authorized
Senders, any subsequent Schedule A must list all Authorized
Senders designated on its prior Schedule A and state whether or
not there is any revocation or change of authority for each
previously listed Authorized Sender. Bank shall have no liability for
any loss arising from Customer’s failure to provide information revoking
or changing an Authorized Sender’s authority in the manner stated
above. Any new Schedule A shall not be effective until accepted by
Bank and Bank has had a reasonable time to act upon it.
3. Form of Instructions.
Bank may act upon Payment Orders or Instructions. Any Payment
Order or Instruction which does not comply with Bank's procedures or
which exceeds the available balance of the funds on deposit in an
Account may be canceled from Bank's wire system without notice to
Customer or liability to Bank.
USpecial InstructionsU. Customer may elect to authorize Repetitive
Transfers on its Schedule B and Standing Order Transfers on its
Schedule D to this Agreement. Bank's assignment, if any, of a repetitive
code for Repetitive Transfers is not a security procedure and will not be
used as such.
UElectronic InstructionsU. If Bank accepts Customer's election to
initiate Payment Orders and Instructions from Customer's electronic
access system, Customer shall be responsible for the security and
confidentiality of Customer's system and for the accuracy and
completeness of any data received by Bank. Bank will not verify any
electronically initiated Transfer.
4. Confirmations and Duty to Report Errors.
Exhibit G - SunTrust Treasury Management Master Agreement
and Terms and Conditions
TREASURY MANAGEMENT
TERMS AND CONDITIONS
Page 61 of 63
The date and amount of each Transfer are described on the
applicable Statement. Subject to the charges referenced in Paragraph
12, herein, Bank may also deliver Confirmations to Customer at the
address, telephone/facsimile number or other communications system
specified by Customer. Customer may elect on its Schedule E to this
Agreement, to receive facsimile Confirmations. A Customer initiating
Transfers from its electronic access system may receive on-line
Confirmation of each Transfer. Bank will not deliver next day notice of
receipt of incoming Transfers. Customer shall examine upon receipt, but
in no event later than 30 days after receipt, any Statement or
Confirmation (whichever first occurs) and notify Bank of errors, if any.
Failure to notify Bank of any error within such 30 day time period shall
relieve Bank of all liability for the Transfers reflected in such Statement
or Confirmation.
5. Amendment or Cancellation of Payment Orders.
Any Instruction canceling or amending a Payment Order is not
effective unless Bank has received such Instruction at a time and in a
manner affording Bank a reasonable opportunity to act before making
the Transfer. If an Authorized Sender requests that Bank attempt to
recover transferred funds, Customer may be required to deposit funds
with Bank or provide other payment assurances that are satisfactory to
Bank to cover the cost, expense, charges, and/or attorneys' fees
incurred by Bank in its recovery attempt. Bank's attempt to recover
funds shall not be an acceptance of responsibility for the completed
Transfer. Bank does not guarantee the recovery of all or any part of a
Transfer.
6. Deadlines.
Bank shall establish deadlines for the receipt of Payment Orders
and Instructions, including cancellations and amendments. Payment
Orders and Instructions received after the deadline shall be treated as
received on the next business day. Bank may, in its sole discretion,
execute Payment Orders received after the deadline on that same
business day only as an accommodation to Customer.
7. Security Procedures.
UAcknowledgment and AmendmentU. Customer acknowledges that
the Bank's security procedures are commercially reasonable. Bank
reserves the right to change the security procedures from time to time.
UPINsU. Bank shall assign a PIN to each Authorized Sender which
must be used each time an Authorized Sender makes or verifies
Transfers or provides Instructions. Customer shall be responsible for
maintaining the confidentiality of the PINs and shall promptly report any
breach of confidentiality to Bank.
UVerificationU. Bank may, in its sole discretion, verify or authenticate
any Payment Order or Instruction by contacting Customer by telephone
or by any other means deemed reasonable by Bank, but Bank is under
no obligation to do so. If Bank is unable to verify or authenticate a
Payment Order or Instruction, it is within the Bank's sole discretion to
either effect or refuse such Payment Order or Instruction. Bank will not
verify any Transfer initiated electronically.
UTest KeyU. Bank may upon Customer's written request, provide a
Test Key for detecting errors in the amount of a Payment Order. If
Customer elects to use a Test Key, any Payment Order which passes
the Test Key shall be deemed correct as to amount. Bank and Customer
acknowledge that no other error detection procedure for dollar amount
verification has been established.
8. Recording.
Customer consents to Bank recording telephone calls, including,
without limitation, Payment Orders and Instructions. Customer assumes
the responsibility for obtaining the consent of the Authorized Senders for
these recordings. The recordings made shall be conclusive confirmation
of Payment Orders and Instructions. Customer acknowledges that not
all calls will be recorded.
9. International Transactions.
International Payment Orders. If Bank receives a U.S. Dollar-
denominated International Payment Order, then (except as provided in
the next sentence) Customer hereby instructs Bank to either:
(a) convert the amount of such International Payment Order into
the currency (the “Conversion Currency”) of the country in which the
beneficiary’s bank is located (at Bank’s sale rate for the Conversion
Currency in effect on the date Bank executes such International
Payment Order), execute such International Payment Order by issuing a
payment order for the corresponding amount of the Conversion
Currency and forward to the beneficiary’s bank the relevant currency
conversion data; or
(b) execute such International Payment Order by issuing a U.S.
Dollar-denominated payment order in the amount of such International
Payment Order to an intermediary bank and instruct such intermediary
bank to convert the amount of such payment order into the Conversion
Currency (at such intermediary bank’s sale rate for the Conversion
Currency in effect on the date such intermediary bank executes such
payment order).
Bank will not convert (or instruct an intermediary bank to convert) a
U.S. Dollar-denominated International Payment Order into the
Conversion Currency if (1) such International Payment Order specifies
an intermediary bank, (2) the amount of such International Payment
Order exceeds an amount (the “Conversion Cap”) specified by Bank
and in effect on the date it executes such International Payment Order,
(3) the Conversion Currency is not a currency (an “Eligible Currency”)
specified by Bank as one into which it will convert U.S. Dollar-
denominated International Payment Orders on the date Bank executes
such International Payment Order, (4) Customer gives an Instruction (a
“No-Conversion Instruction”) along with such International Payment
Order that it is not to be converted into the Conversion Currency or (5)
such International Payment Order is subject to an opt out election for
automatic currency conversion as reflected on a Schedule H to this
Agreement (if any) that is in effect on the date Bank executes such
International Payment Order.
Bank’s experience is that a very high percentage of U.S. Dollar-
denominated International Payment Orders are converted into the
Conversion Currency by the beneficiary’s bank before being made
available to the beneficiary. Bank believes the conversion of U.S. Dollar-
denominated International Payment Orders into the Conversion
Currency before they are executed by Bank may offer several benefits
to Customer and/or the beneficiary, including earlier conversion, better
exchange rates and expedited availability of funds. However, Customer
is solely responsible for determining if the conversion of a U.S. Dollar-
denominated International Payment Order into the Conversion Currency
is consistent with Customer’s contractual and other obligations to the
Exhibit G - SunTrust Treasury Management Master Agreement
and Terms and Conditions
TREASURY MANAGEMENT
TERMS AND CONDITIONS
Page 62 of 63
beneficiary. If such conversion is not consistent with those obligations,
Customer should give Bank a No-Conversion Instruction along with the
International Payment Order. Moreover, if Bank receives a demand from
the beneficiary or the beneficiary’s bank for reimbursement of sums
relating to the conversion of a U.S. Dollar-denominated International
Payment Order, Bank will seek an Instruction from Customer as to
whether Bank should remit those sums to the beneficiary’s bank (in
which event, they will be charged to the Account).
Information regarding the current Conversion Cap and Eligible
Currencies may be obtained by contacting Bank. In that regard, Bank
may determine the Eligible Currencies without regard to whether it
trades those currencies generally. If Customer desires to ensure that
Bank executes an International Payment Order in a currency other than
U.S. Dollars, then Customer should denominate that International
Payment Order in the desired currency.
If Bank receives an International Payment Order that is
denominated in a currency other than U.S. Dollars, Bank will convert the
funds from the Account into the requested currency (at Bank’s sale rate
for that currency in effect on the date Bank executes such International
Payment Order). Any returned funds will be converted by Bank into U.S.
Dollars at Bank's then current buy rate for that currency on the day of
return. Bank shall not be liable for any resulting exchange losses. If, as
a result of the exchange rate, excess funds have been remitted, such
funds will be returned to the Account less the exchange costs.
Customer hereby instructs Bank that it may (a) obtain payment of
its charges for services and expenses in connection with the execution
of an International Payment Order by issuing a payment order in an
amount equal to the amount of that International Payment Order less
the amount of the charges and (b) instruct any subsequent receiving
bank to obtain payment of its charges in the same manner.
10. Name and Account Number Inconsistency.
Customer shall ensure the accuracy of its Payment Orders and
Instructions. If a Payment Order inconsistently describes the beneficiary,
beneficiary's bank, or intermediary bank by name and number, payment
might be made by the intermediary or beneficiary's bank on the basis of
the number even if the number identifies a person or bank other than
the named beneficiary or bank. Customer shall be responsible for any
loss associated with such inconsistency.
11. Liability.
UDuty of Reasonable CareU. Bank shall exercise good faith and
reasonable care in performing the services provided for in this
Agreement. Customer shall exercise good faith and reasonable care in
observing and maintaining security procedures, in communicating
Payment Orders and Instructions to Bank and in reviewing Statements
and Confirmations for errors.
ULimitation of LiabilityU. Bank shall only be liable as provided by
applicable law for any error or delay and shall have no liability for not
effecting a Transfer if: (a) Bank receives actual notice or has reason to
believe that Customer has filed or commenced a petition or proceeding
for relief under any bankruptcy, insolvency, or similar law; (b) the
ownership of the funds to be transferred or the Authorized Sender's
authority to do so are in question;
(c) Bank suspects a breach of the security procedures; (d) Bank
suspects that the Account has been used for illegal or fraudulent
purposes; (e) Bank attempts to verify a Payment Order and is unable to
do so;(f) Customer does not have available funds to effect the
Transfer;(g) Bank reasonably believes that a Transfer is prohibited by
federal law or regulation, including, but not limited to, those promulgated
by the Office of Foreign Assets Control/Department of the Treasury; or
(h) otherwise so provided in this Agreement.
Customer will hold Bank harmless: (w) if Bank acts in accordance
with Payment Orders and Instructions, including, but not limited to,
amendments or cancellations; (x) if Bank attempts to recover funds
upon the request of an Authorized Sender; (y) for any loss resulting from
the unauthorized access to or use of PINs; or (z) for any matters
referenced in this Agreement for which Customer has responsibility.
Any damages or other compensation due Customer resulting from
Bank's negligence shall be limited to interest on the funds at issue at the
federal funds rate paid by Bank at the close of business on each day the
error or delay remains uncorrected; provided, however, if Bank is unable
to recover the funds from the transferee who has no claim to all or any
portion of the funds erroneously transferred as a result of the Bank's
negligence, Bank shall be liable for Customer's actual loss, not to
exceed the amount of funds which Bank is unable to recover, plus
interest at the rate described above. Bank shall not be responsible for
any loss, damage, liability, or claim, arising directly or indirectly, from
any error, delay, or failure to perform any of its obligations hereunder
which is caused by fire, natural disaster, strike, civil unrest, any
inoperable communications facilities, or any other circumstance beyond
the reasonable control of the Bank. In no event shall Bank be liable to
Customer for indirect, consequential, special, punitive, or exemplary
damages.
12. Fees.
Customer shall pay all fees and charges which Bank may, from
time to time, impose for the performance of services provided in this
Agreement. In addition, Customer shall reimburse Bank for all out-of-
pocket expenses incurred by Bank in effecting Payment Orders and
Instructions, including cancellations, amendments and attempted
recoveries.
13. Notices.
Oral notices, Instructions, directions, Confirmations, verifications, or
other oral communications with respect to Transfers and this Agreement
shall be given, if to Bank, to Customer's assigned relationship manager,
and, if to Customer, to the telephone number provided by Customer on
its Schedule A to this Agreement. Written notices, Instructions,
directions, Confirmations, verifications, or other written communications
with respect to Transfers and this Agreement shall be sent, if to Bank, at
the Bank's address on the Statement, and if to Customer, at the address
provided by Customer on its Schedule A to this Agreement. Either party
may change its telephone number or address by giving written notice to
the other party.
14. Applicable Law, Jurisdiction and Account Agreement.
This Agreement is subject to all applicable Federal Reserve Bank
operating circulars and any other applicable provisions of Federal law. If
Bank uses Fedwire to effect a Transfer, Federal Reserve Board
Regulation J, Subpart B shall apply. Except as so provided, this
Agreement shall be governed by and interpreted in accordance with the
laws of the state in which the Account is located. Customer consents to
the jurisdiction and venue of any court located in such state, selected by
Exhibit G - SunTrust Treasury Management Master Agreement
and Terms and Conditions
TREASURY MANAGEMENT
TERMS AND CONDITIONS
Page 63 of 63
Bank in its sole discretion. The parties agree that, in the event of a
dispute, they will submit same to mediation prior to any legal action. The
terms and conditions of any schedule, account agreement, signature
card, authority, and the Bank's Rules and Regulations for Deposit
Accounts are incorporated herein by reference. If any conflict or
inconsistency exists between the terms and conditions of this
Agreement and any of the above, this Agreement shall control.
15. Jury Trial Waiver.
Customer and Bank hereby knowingly, voluntarily, intentionally,
and irrevocably waive the right either of them may have to a trial by
jury in respect to any litigation, whether in contract or tort, at law
or in equity, based hereon, or arising out of, under or in connection
with this Agreement and any other document or instrument
contemplated to be executed in conjunction herewith, or any
course of conduct, course of dealing, statements (whether verbal
or written) or actions of any party hereto. This provision is a
material inducement for Bank entering into this Agreement.
Further, Customer hereby certifies that no representative or agent
of Bank, or Bank’s counsel, has represented, expressly or
otherwise, that Bank would not, in the event of such litigation, seek
to enforce this waiver of right to jury trial provision. No
representative or agent of Bank, or Bank's counsel has the
authority to waive, condition, or modify this provision.
16. Amendment and Termination.
This Agreement may be amended by Bank from time to time by
written notice to Customer. Any use of services provided hereunder
after Customer's receipt of the notice shall constitute acceptance of the
terms of the amendment. Either party may terminate this Agreement by
giving at least 30 days prior written notice to the other party. Bank may
terminate this Agreement immediately, without prior notice to Customer,
if: (a) the Account(s) has no annual activity or has been closed; (b) Bank
suspects a breach of Customer's security procedures; (c) Bank receives
actual notice or has reason to believe that Customer has filed or
commenced a petition or proceeding for relief under any bankruptcy,
insolvency, or similar law; or (d) Bank suspects that the Account(s) have
been used for illegal or fraudulent purposes.
17. Miscellaneous.
This Agreement shall be binding upon and inure to the benefit of
the parties, their legal representatives, successors, and assigns, by
merger or otherwise. If any provision of this Agreement shall be
declared invalid or unenforceable, said provision shall be ineffective to
the extent it is invalid, without in any way affecting the remaining
provisions of this Agreement.
Client Name: City of Milton
Authorized Signer:
Print Name: Joe Lockwood
Print Title: Mayor
Date:
SunTrust Bank
Authorized Signer:
Print Name:
Print Title:
Date:
Exhibit G - SunTrust Treasury Management Master Agreement
and Terms and Conditions
City of Milton
13000 Deerfield Parkway, Milton, Georgia 30004
1
To: Honorable Mayor and City Council Members
From: David Frizzell, IT Manager
Date: Submitted on October 31, 2012, 2012 for the November 19, 2012, Regular
Council Meeting
Agenda Item: Approval of a Contract Renewal between the City of Milton and AT&T for
Telephone Services
____________________________________________________________________________
Department Recommendation:
The IT Manager recommends approval of this contract.
Executive Summary:
This contract provides for telephone service for the City of Milton. This renewal continues the
existing service and will lock in the rates for that service.
Funding and Fiscal Impact:
The cost for this service has been budgeted. There will be no change in the IT budget for the
new contract.
Alternatives:
Allowing service to continue at month-month billing rates will create significant cost increases
due to the fees involved.
Legal Review:
Paul Higbee, Jarrard & Davis, LLP – October 20, 2012
Concurrent Review:
Chris Lagerbloom, City Manager
Attachment(s):
Contract Service Arrangement Agreement with AT&T Georgia (GA12-3740-01)
Contract Service Arrangement Agreement
Case Number GA12-3740-01
Page 1 of 8
AT&T and Customer Confidential Information
This Contract Service Arrangement (CSA) Agreement (“Agreement”) is by and between BellSouth
Telecommunications, LLC d/b/a AT&T Georgia, (“Company”) and CITY OF MILTON, Georgia (“Customer” or
“Subscriber”). This Agreement is based upon the following terms and conditions as well as any Attachment(s)
affixed and the appropriate lawfully filed and approved tariffs which are by this reference incorporated herein.
1. Subscriber requests and Company agrees, subject to the terms and conditions herein, to provide the service
described in this Agreement at the monthly and nonrecurring rates, charges, and conditions as described in
this Agreement (“Service”). The rates, charges, and conditions described in this Agreement are binding upon
Company and Subscriber for the duration of this Agreement. For the purposes of the effectiveness of the
terms and conditions contained herein, this Agreement shall become effective upon execution by both parties.
For purposes of the determination of any service period stated herein, said service period shall commence the
date upon which installation of the service is completed.
2. Company agrees to provide Subscriber notice of any additional tariffed services required for the installation of
the Service. Subscriber agrees to be responsible for all rates, charges and conditions for any additional
tariffed services that are ordered by Subscriber.
3. This Agreement is subject to and controlled by the provisions of Company's or any of its affiliated companies'
lawfully filed and approved tariffs, including but not limited to Section A2 of the General Subscriber Services
Tariff and No. 2 of the Federal Communications Commission Tariff and shall include all changes to said
tariffs as may be made from time to time. All appropriate tariff rates and charges shall be included in the
provision of this service. Except for the expressed rates, charges, terms and conditions herein and except as
otherwise provided in Section 13 below, in the event any part of this Agreement conflicts with the terms and
conditions of Company’s or any of its affiliated companies’ lawfully filed and approved tariffs, the tariff shall
control.
4. This Agreement may be subject to the appropriate regulatory approval prior to commencement of installation.
Should such regulatory approval be denied, after a proper request by Company, this Agreement shall be null,
void, and of no effect.
5. If Subscriber cancels this Agreement prior to the completed installation of the Service, but after the execution
of this Agreement by Subscriber and Company, Subscriber shall pay all reasonable costs incurred in the
implementation of this Agreement prior to receipt of written notice of cancellation by Company.
Notwithstanding the foregoing, such reasonable costs shall not exceed all costs which would apply if the work
in the implementation of this Agreement had been completed by Company.
6. The rates, charges, and conditions described in this Agreement may be based upon information supplied to
Company by the Subscriber, including but not limited to forecasts of growth. If so, Subscriber agrees to be
bound by the information provided to Company. Should Subscriber fail to meet its forecasted level of service
requirements at any time during the term of this Agreement, Subscriber shall pay all reasonable costs
associated with its failure to meet its projected service requirements.
7. If Subscriber cancels this Agreement or a Service provided pursuant to this Agreement at any time prior to the
expiration of the service period set forth in this Agreement, Subscriber shall be responsible for all termination
charges. Unless otherwise specified by the tariff or stated elsewhere in this Agreement, termination charges
Contract Service Arrangement Agreement
Case Number GA12-3740-01
Page 2 of 8
AT&T and Customer Confidential Information
are defined as fifty percent (50%) of the recurring charges due or remaining as a result of the minimum
service period agreed to by the Company and Subscriber and set forth in this Agreement and any nonrecurring
charges that were not applied upon installation as set forth in this Agreement.
8. This Agreement shall be construed in accordance with the laws of the State of Georgia.
9. Except as otherwise provided in this Agreement, notices required to be given pursuant to this Agreement shall
be effective when received, and shall be sufficient if given in writing, hand delivered, or United States mail,
postage prepaid, addressed to the appropriate party at the address set forth below. Either party hereto may
change the name and address to whom all notices or other documents required under this Agreement must be
sent at any time by giving written notice to the other party.
Company
AT&T Georgia
Assistant Vice President
2180 Lake Blvd., 7th Floor
Atlanta, GA 30319
Subscriber
CITY OF MILTON
13000 DEERFIELD PKWY, BLDG 100
MILTON, GA 30004-
10. Subscriber may not assign its rights or obligations under this Agreement without the express written consent
of Company and only pursuant to the conditions contained in the appropriate tariff.
11. In the event that one or more of the provisions contained in this Agreement or incorporated within by
reference shall be invalid, illegal, or unenforceable in any respect under any applicable statute, regulatory
requirement or rule of law, then such provisions shall be considered inoperative to the extent of such
invalidity, illegality, or unenforceability and the remainder of this Agreement shall continue in full force and
effect.
12. Acceptance of any order by Company is subject to Company credit and other approvals. Following order
acceptance, if it is determined that: (i) the initial credit approval was based on inaccurate or incomplete
information; or (ii) the customer's creditworthiness has significantly decreased, Company in its sole discretion
reserves the right to cancel the order without liability or suspend the Order until accurate and appropriate
credit approval requirements are established and accepted by Customer.
13. Customer and Company acknowledge and agree that to the extent the Service provided under this Agreement
is deregulated or de-tariffed by operation of law, regulation, or otherwise, all references in this Agreement to
“BellSouth General Subscriber Services Tariff”, “BellSouth tariffs”, “BellSouth’s lawfully filed tariffs”, or
any other reference to BellSouth’s tariffs on file with the Public Service Commissioner(s) of the applicable
state or states shall be deemed reference to the terms set forth in this Agreement, as well as the Service
Descriptions and Price Lists and the BellSouth Service Agreement, all of which can be found at the link found
at www.att.com/servicepublications, all incorporated herein by reference as if fully included herein.
Customer agrees such deregulated or de-tariffed Service shall be provided in accordance with the terms and
Contract Service Arrangement Agreement
Case Number GA12-3740-01
Page 3 of 8
AT&T and Customer Confidential Information
conditions set forth in this Agreement, the Service Descriptions and Price Lists for each applicable state or
states and the BellSouth Service Agreement found at the link above. To the extent there exist any
discrepancies or inconsistencies between the terms set forth in the body of this Agreement and those
incorporated by reference, the terms and conditions set forth in the body of this Agreement shall govern.
14. Customer acknowledges that Customer has read and understands this Agreement and agrees to be bound by
its terms and conditions including all terms set forth in the Service Descriptions and Price Lists found at
www.att.com/servicepublications, as applicable. Customer further agrees that this Agreement and any
attachments hereto, constitute the complete and exclusive statement of the agreement between the parties,
superseding all proposals, representations, and/or prior agreements, oral or written, between the parties
relating to the subject matter of the Agreement. This Agreement is not binding upon Company until executed
by an authorized employee, partner, or agent of Customer and Company. This Agreement may not be
modified, amended, or superseded other than by a written instrument executed by both parties. The
undersigned warrant and represent that they have the authority to bind Customer and Company to this
Agreement.
15. Materially Adverse Impact. If AT&T revises a Service Publication, the revision has a materially adverse
impact on Customer and AT&T does not effect revisions that remedy such materially adverse impact within
30 days after receipt of notice from Customer, then Customer may, as Customer’s sole remedy, elect to
terminate the affected Service Components on 30 days’ notice to AT&T, given not later than 90 days after
Customer first learns of the revision to the Service Publication. “Materially adverse impacts” do not include
changes to non-stabilized pricing, changes required by governmental authority, or assessment of or changes to
additional charges such as surcharges or taxes.
Contract Service Arrangement Agreement
Case Number GA12-3740-01
Option 1 of 1
Page 4 of 8
AT&T and Customer Confidential Information
Offer Expiration: This offer shall expire on: 12/31/12.
Estimated service interval following acceptance date: Negotiable weeks.
Service description:
This Contract Service Arrangement (CSA) provides for BellSouth® Primary Rate ISDN - Voice/Data (Standard)
service.
Notwithstanding any terms to the contrary, and in accordance with Georgia law, the initial contract term shall begin on the
date of execution by the last party to this Agreement and shall automatically terminate at the end of the then current calendar
year. The Agreement will be automatically renewed for the annual renewals for up to a maximum of thirty-six (36) months
unless either party notifies the other party in wr iting, no less than sixty (60) days prior to the end of initial or renewal year,
that the contract will not be renewed for the following calendar year. Upon Company receiving or issuing said notice of non-
renewal the Agreement shall terminate absolutely and without further obligation on the part of either Party, effective the last
day of the then current calendar year. Under this Agreement, title to any supplies, materials, equipment, or other personal
property shall remain with Company until fully paid for by the Customer.
Subject to the terms of this Agreement, the Agreement shall terminate immediately and absolutely at such time as
appropriated and otherwise unobligated funds are no longer available to satisfy the obligations of the Customer under the
Agreement. The determination of the occurrence of such unavailability of funds shall be made by the Customer in its sole
discretion and shall be conclusive. Company acknowledges that Customer is a governmental entity and is dependent upon
budgetary funding to help pay for the Services being ordered by Customer under this Agreement. Provided that Customer
has diligently and in good faith applied for, submitted all required forms and information, and performed all other duties an d
obligations required of Customer in connection with obtaining initial and continuing funding from the Customer budget with
respect to the Services, Company agrees that Customer may terminate the Services and this Agreement at any time upon at
least thirty (30) days ‘ prior written notice to Company, without payment of any early termination charges that would
otherwise be due, such waiving of termination fees will apply if (and only if) Customer does not obtain substitution services
from a competitor within one year of any denial of funding under the Customer’s budget or the funding becomes depleted or
is changed during the term of this Agreement such that funding is no longer available to Customer for the Services. Such
waiver is also subject to any and all applicable tariffs or an ap proved CSA. Notwithstanding any failure to obtain such
funding, Customer shall remain fully liable and shall have an obligation to pay, in full, (1) all nonrecurring charges; and (2)
any costs that may not have been included in the nonrecurring charges which were incurred by the Company to deploy
Services, including and special construction charges, capital costs or other expenses, collectively (“Capital charges”).
This Agreement may not be modified except by written consent of both parties.
Use of Service: Customer agrees that the Service will only be used to transport the voice and/or data traffic of
Customer and its Affiliates, and not to originate or terminate voice and/or data traffic to bypass switched access
charges as defined by applicable state and federal telecommunications law. Customer understands that this
covenant is an essential part of the undertaking by AT&T herein, and that AT&T is relying upon Customer’s
covenant as an inducement to sell the Service. Customer agrees to compensate AT&T for any switched access
charges that AT&T is obligated to pay, or entitled to collect, as a result of Customer’s use of the Services, and
Customer further agrees that this obligation to compensate AT&T shall not be capped or limited. As used herein
the term Switched Access, generally speaking, means the charges that a long distance company is required to pay
to a local telecommunications company for the termination or origination of long distance calls to or from a
customer whose phone is connected to the local telecommunications company’s local switching network.
“Affiliate” of a party means any entity that controls, is controlled by, or is under common control with, such
party.
Contract Service Arrangement Agreement
Case Number GA12-3740-01
Option 1 of 1
Page 5 of 8
AT&T and Customer Confidential Information
Contract Service Arrangement Agreement
Case Number GA12-3740-01
Option 1 of 1
Page 6 of 8
AT&T and Customer Confidential Information
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized
representatives on the dates set forth below.
Accepted by:
Subscriber:
CITY OF MILTON
By: __________________________________________
Authorized Signature
Printed Name: __________________________________
Title: ______________________________________
Date: ______________________________________
Company:
AT&T Georgia
By: __________________________________________
Authorized Signature
Printed Name: __________________________________
Title: ______________________________________
Date: ______________________________________
Contract Service Arrangement Agreement
Case Number GA12-3740-01
Option 1 of 1
RATES AND CHARGES
Page 7 of 8
AT&T and Customer Confidential Information
Rate Elements Non-Recurring Monthly Rate USOC
1 BellSouth® Primary Rate ISDN,
Access Line, -Each
$.00 $130.00 1LD1E
2 BellSouth® Primary Rate ISDN,
Interface, -Each
- Voice/Data (Standard)
$.00 $375.00 PR71V
3 BellSouth® Primary Rate ISDN,
B-Channel, -Each
- Voice/Data (Standard)
$.00 $15.00 PR7BV
4 BellSouth® Primary Rate ISDN,
Calling Name Delivery Feature,
Per Primary Rate Interface
$.00 $75.00 PR7CN
5 BellSouth® Primary Rate ISDN,
D-Channel
- No Rate (Provisioning USOC)
$.00 $.00 PR7EX
6 BellSouth® Primary Rate ISDN,
Telephone Numbers for Flat Rate
Voice/Data,
-Per telephone number requested
inward and 2-way
$.00 $0.20 PR7TF
Contract Service Arrangement Agreement
Case Number GA12-3740-01
Option 1 of 1
Page 8 of 8
AT&T and Customer Confidential Information
RATES AND CHARGES
NOTES:
1. All rules and regulations for BellSouth® Primary Rate ISDN service as set forth in the General Subscriber
Services Tariff (GSST) are applicable to this Agreement with the exception that volume discounts as outlined in
the tariff do not apply. The rate elements included herein have been specifically discounted. Other rate elements
used in the provision of the service have not been listed, but may be found in the appropriate Company tariff.
Examples of other rate elements are: FCC surcharges, regulatory fees, taxes, or charges for features ordered that
are not listed in the Agreement.
2. Apply five End User Common Line Charges for each Primary Rate Interface.
3. The following nonrecurring charges will not apply upon initial installation. However, if all or any part of the
service is disconnected prior to the expiration of the selected term, then Customer will pay full nonrecurring
charges that were waived at initial installation as identified below in addition to applicable termination liability
charges:
USOC Description Nonrecurring Charge
1LD1E Access Line $875.00 each
PR71V Interface $110.00 each
PR7BV B-Channel $5.00 each
Furthermore, upon Customer’s request to disconnect all service prior to the expiration of the selecte d term,
Customer will be charged a one-time Contract Preparation Charge in the amount of $423.00.
All trademarks and service marks contained herein are owned by AT&T Intellectual Property and/or AT&T
affiliated companies.
END OF ARRANGEMENT AGREEMENT OPTION 1
City of Milton
13000 Deerfield Parkway, Milton, Georgia 30004
1
To: Honorable Mayor and City Council Members
From: Carter Lucas, PE – Director of Public Works
Date: Submitted on October 26, 2012 for the November 19, 2012 Regular Council
Meeting
Agenda Item: Approval of a Construction Services Agreement between the City of Milton
and Blount Construction Company, Inc. for Sidewalk, Curb and Gutter
Repair at Various Locations within the City
____________________________________________________________________________
Department Recommendation: Approval
Executive Summary:
The city completes repairs of sidewalk and curb and gutter as part of our routine
maintenance activities. The work to be completed under this Agreement is part of our
annual sidewalk and curb and gutter repair program. The work provided in this contract
represents 343 lf of sidewalk repair and 114 lf of curb and gutter repair at various
locations throughout the city.
In accordance with the city’s procurement procedures three bids were received for the
completion of this work. Blount Construction Company, Inc. submitted the lowest,
responsible bid and staff is recommending approval of the lump sum contract in the
amount of $19,500.
Funding and Fiscal Impact:
Funding for this project is available in the capital Infrastructure/Sidewalk fund.
Alternatives:
None, the city has a legal obligation to maintain the public infrastructure.
Legal Review:
Construction Services Agreement – Paul Higbee, Jarrard & Davis on 10/3/2012
Concurrent Review:
Chris Lagerbloom, City Manager
Attachment(s):
Construction Services Agreement
City of Milton
CONSTRUCTION SERVICES AGREEMENT
FOR
SIDEWALK AND CURB & GUTTER REPLACEMENT
This Agreement (the "Agreement") to provide intersection pedestrian improvements is
made and entered into this _ day of , 2012, by and between the CITY OF MILTON, a
municipal corporation of the State of Georgia, acting by and through its governing authority, the
Milton City Council (hereinafter referred to as the "City"), Blount Construction Company, Inc., a
corporation with its principal place of business located at 1730 Sands Place, Marietta, Georgia
30067, (hereinafter referred to as the "Contractor").
WITNESSETH:
WHEREAS, the City issued a Request For Bid (RFS Sidewalk and Curb & Gutter
Replacement), to solicit bids for drainage improvements at various locations within the City; and
WHEREAS, based upon Contractor's bid to construct and to install the storm drain line
as required by the bid documents, the City has selected Contractor as the winning bidder, and
WHEREAS, Contractor has agreed to perform such work as set forth in this Agreement,
according to the terms and conditions provided in this Agreement; and
WHEREAS, Contractor has familiarized itself with the nature and extent of the Contract
Documents, the Project, and the Work, with all local conditions and federal, state and local laws,
ordinances, rules and regulations in any manner that may affect cost, progress or performance of
work, and Contractor is aware that he must be licensed to do business in the State of Georgia.
NOW THEREFORE, the City and Contractor, in consideration of the mutual promises
contained herein and other good and valuable consideration, the sufficiency of which is hereby
acknowledged, agree as follows:
Section 1 Contract Documents
The following documents are incorporated herein by reference and constitute the
Contract Documents:
A. This Agreement (16 pages);
B. Request For Bid RFS (10 Pages), attached hereto as Exhibit "A";
C. Proposal and Bid from Contractor dated (2 Pages), attached hereto as Exhibit "B";
D. Performance and Other Bonds, attached hereto collectively as Exhibit "C";
E. Plans and specifications, attached hereto collectively as Exhibit "D",
F. Contractor Affidavit and Agreement, attached hereto as Exhibit "E";
G. Subcontractor Affidavit, attached hereto as Exhibit "F";
H. Sane Affidavit, attached hereto as Exhibit "G";
I. The following which may be delivered or issued after the Effective Date of the
Agreement and are not attached hereto: All Written Amendments and other
documents amending, modifying, or supplementing the Contract Documents if
properly adopted in writing and executed by the Parties; and
City of Milton Code of Ethics.
In the event of any discrepancy among the Contract Documents, that provision that inures most
to the benefit of the City, as determined by the City in its sole discretion, shall govern.
Section 2 Project Description
The Project is defined generally as the removal and replacement of damaged sidewalk
and curb & gutter sections at locations designated by the city. The scope is more particularly
defined in Exhibit "A".
Section 3 The Work
The Work is specified and indicated in the Contract Documents (the "Work"). In the
event of any discrepancy among the Contract Documents, the provision operating most to the
benefit of the City, as determined by the City in its sole discretion, shall govern. The Work
previously described includes all material, labor, insurance, tools, equipment, and any other
miscellaneous items necessary to complete the Work as described. Contractor shall complete the
Work in strict accordance with the Contract Documents.
Section 4 Contract Time
This Contract shall take effect on . Contractor agrees to complete the
Project within 34 calendar days from the date of Notice to Proceed. Every effort will be made by
Contractor to shorten this period.
Section 5 Contractor's Compensation; Time and Method of Payment
Contractor shall be paid in one lump sum for the full agreed -to contract amount of
$19,500. The City shall pay Contractor upon Final Completion of the Project as such is
determined by the City, net thirty (30) days from the date of invoice. No payments will be made
for unauthorized work. Upon the City's certification of Final Completion of the Project, an
2
invoice should be submitted to Rick Pearce (Budget and Procurement Coordinator), for approval.
Payment will be sent to the designated address by V. S. Mail only; payment will not be hand -
delivered.
Section 6 Work Changes
A. The City reserves the right to order changes in the Work to be performed under
this Agreement by altering, adding to, or deducting from the Work. All such
changes shall be incorporated in written change orders executed by the Contractor
and the City. Such change orders shall specify the changes ordered and any
necessary adjustment of compensation and completion time. If the Parties cannot
reach an agreement on the terms for performing the changed work within a
reasonable time to avoid delay or other unfavorable impacts as determined by the
City in its sole discretion, the City shall have the right to determine reasonable
terms and the Contractor shall proceed with the changed work.
B. Any work added to the scope of this Agreement by a change order shall be
executed under all the applicable conditions of this Agreement. No claim for
additional compensation or extension of time shall be recognized, unless
contained in a written change order duly executed on behalf of the City and the
Contractor.
C. The City Manager has authority to execute without further action of the Milton
City Council, any number of change orders so long as their total effect does not
materially alter the terms of this Agreement or materially increase the total
amount to be paid under this Agreement. Any such change orders materially
altering the terms of this Agreement or increasing the total amount to be paid
under this Agreement in excess of $50,000, must be approved by resolution of the
Milton City Council.
Section 7 Covenants of Contractor.
A. Ethics Code
Contractor agrees that it shall not engage in any activity or conduct that would be
in violation of the City of Milton Code of Ethics.
B. Time is of the Essence
Contractor specifically acknowledges that TIME IS OF THE ESSENCE for
completion of the Project.
C. Expertise of Contractor
Contractor accepts the relationship of trust and confidence established between it
and the City, recognizing that the City's intention and purpose in entering into this
Agreement is to engage an entity with the requisite capacity, experience, and
3
professional skill and judgment to provide the services in pursuit of the timely and
competent completion of the Work undertaken by Contractor under this
Agreement.
D. Budgetary Limitations
Contractor agrees and acknowledges that budgetary limitations are not a
justification for breach of sound principals of Contractor's profession and
industry. Contractor shall take no calculated risk in the performance of the Work.
Specifically, Contractor agrees that, in the event it cannot perform the Work
within the budgetary limitations established without disregarding sound principals
of Contractor's profession and industry, Contractor will give written notice
immediately to the City.
E. City's Reliance on the Work
The Contractor acknowledges and agrees that the City does not undertake to
approve or pass upon matters of expertise of the Contractor and that; therefore,
the City bears no responsibility for Contractor's services performed under this
Agreement. The Contractor acknowledges and agrees that the acceptance of
Work by the City is limited to the function of determining whether there has been
compliance with what is required to be produced under this Agreement. The City
will not, and need not, inquire into adequacy, fitness, suitability or correctness of
Contractor's performance. Contractor further agrees that no approval of designs,
plans, specifications, or work by any person, body or agency shall relieve
Contractor of the responsibility for adequacy, fitness, suitability, and correctness
of Contractor's professional and industry standards or for performing services
under this Agreement in accordance with sound and accepted professional and
industry principals.
F. Contractor's Reliance of Submissions by the Cid
Contractor must have timely information and input from the City in order to
perform the services required under this Agreement. Contractor is entitled to rely
upon information provided by the City, but Contractor shall be required to
provide immediate written notice to the City if Contractor knows or reasonably
should know that any information provided by the City is erroneous, inconsistent,
or otherwise problematic.
G. Contractor's Representative
725;�Z C,017-aC,-4A- L • d shall be authorized to act on
Contractor's behalf with respect to the Work as Contractor's designated
representative.
H. Assignment of Agreement
The Contractor covenants and agrees not to assign or transfer any interest in, nor
4
delegate any duties of this Agreement, without the prior express written consent
of the City.
I. Responsibility of Contractor and Indemnification of Cit
The Contractor covenants and agrees to take and assume all responsibility for the
services rendered in connection with this Agreement. The Contractor shall bear all
losses and damages directly or indirectly resulting to it on account of the
performance or character of the services rendered pursuant to this Agreement.
Contractor shall defend, indemnify and hold harmless the City, its officers,
boards, commissions, elected and appointed officials, employees and agents from
and against any and all claims, suits, actions, liability, judgments, damages,
losses, and expenses, including but not limited to, attorney's fees, which may be
the result of willful, negligent or tortuous conduct arising out of the Work,
performance of contracted services, or operations by the Contractor, any
subcontractor, anyone directly or indirectly employed by the Contractor or
subcontractor or anyone for whose acts the Contractor or subcontractor may be
liable, regardless of whether or not the negligent act is caused in part by a party
indemnified hereunder. Such obligation shall not be construed to negate,
abridge, or otherwise reduce any other right or obligation of indemnity which
would otherwise exist as to any party or person described in this provision. In any
and all claims against the City or any of its agents or employees, by any employee
of the Contractor, any subcontractor, anyone directly or indirectly employed by
the Contractor or subcontractor or anyone for whose acts the Contractor or
subcontractor may be liable, the indemnification obligation set forth in this
provision shall not be limited in any way by any limitation on the amount or type
of damages, compensation or benefits payable by or for the Contractor or any
subcontractor under workers' or workmen's compensation acts, disability benefit
acts or other employee benefit acts. This obligation to indemnify and defend the
City, its members, officers, agents, employees and volunteers shall survive
termination of this Agreement. Contractor shall not be required to indemnify the
City or its officers, boards, commissions, elected or appointed officials,
employees or agents against liability or claims for damages, losses, or expenses,
including attorney fees, arising out of bodily injury to persons, death, or damage
to property caused by or resulting from the sole negligence of the City or its
officers, boards, commissions, elected or appointed officials, employees or agents.
J. Independent Contractor
Contractor hereby covenants and declares that it is engaged in an independent
business and agrees to perform the services as an independent contractor and not
as the agent or employee of the City. The Contractor agrees to be solely
responsible for its own matters relating to the time and place the services are
performed; the instrumentalities, tools, supplies and/or materials necessary to
5
complete the services; hiring of Contractors, agents or employees to complete the
services; and the payment of employees, including compliance with Social
Security, withholding and all other regulations governing such matters. The
Contractor agrees to be solely responsible for its own acts and those of its
subordinates, employees, and subcontractors during the life of this Agreement.
Any provisions of this Agreement that may appear to give the City the right to
direct Contractor as to the details of the services to be performed by Contractor or
to exercise a measure of control over such services will be deemed to mean that
Contractor shall follow the directions of the City with regard to the results of such
services only.
The Contractor shall obtain and maintain, at the Contractor's expense, all permits,
licenses, or approvals that may be necessary for the performance of the services.
The Contractor shall furnish copies of all such permits, licenses, or approvals to
the City of Milton Representative within ten (10) days after issuance.
Inasmuch as the City of Milton and the Contractor are contractors independent of
one another neither has the authority to bind the other to any third person or
otherwise to act in any way as the representative of the other, unless otherwise
expressly agreed to in writing signed by both parties hereto. The Contractor
agrees not to represent itself as the City's agent for any purpose to any party or to
allow any employee of the Contractor to do so, unless specifically authorized, in
advance and in writing, to do so, and then only for the limited purpose stated in
such authorization. The Contractor shall assume full liability for any contracts or
agreements the Contract enters into on behalf of the City of Milton without the
express knowledge and prior written consent of the City.
K. Insurance
(1) Requirements: The Contractor shall have and maintain in full force and
effect for the duration of this Agreement, insurance insuring against
claims for injuries to persons or damages to property which may arise
from or in connection with the performance of the Work by the
Contractor, its agents, representatives, employees or subcontractors. All
policies shall be subject to approval by the City Attorney to form and
content. These requirements are subject to amendment or waiver if so
approved in writing by the City Manager.
(2) Minimum Limits of Insurance: Contractor shall maintain limits no less
than:
(a) Comprehensive General Liability of $1,000,000 combined single
limit per occurrence for bodily and personal injury, sickness,
disease or death, injury to or destruction of property, including loss
of use resulting there from.
(b) Comprehensive Automobile Liability (owned, non -owned, hired)
of $1,000,000 combined single limit per occurrence for bodily and
i1
personal injury, sickness, disease or death, injury to or destruction
of property, including loss of use resulting there from.
(c) Professional Liability of $1,000,000 limit for claims arising out of
professional services caused by the Contractor's errors, omissions,
or negligent acts.
(d) Workers' Compensation limits as required by the State of Georgia
and employers Liability limits of $1,000,000 per accident.
(3) Deductibles and Self -Insured Retentions: Any deductibles or self-insured
retentions must be declared to and approved by the City.
(4) Other Insurance Provisions: The policy is to contain, or be endorsed to
contain, the following provisions:
(a) General Liability and Automobile Liability Coverage.
(i) The City, its officials, employees, agents and volunteers are
to be covered as insured as respects: liability arising out of
activities performed by or on behalf of the Contractor;
products and completed operations of the Contractor;
premises owned, leased, or used by the Contractor;
automobiles owned, leased, hired, or borrowed by the
Contractor. The coverage shall contain no special
limitations on the scope of protection afforded to the City,
its officials, employees, agents or volunteers_
(ii) The Contractor's insurance coverage shall be primary
noncontributing insurance as respects to any other
insurance or self-insurance available to the City, its
officials, employees, agents or volunteers. Any insurance or
self-insurance maintained by the City, its officials,
employees or volunteers shall be excess of the Contractor's
insurance and shall not contribute with it.
(iii) Any failure to comply with reporting provisions of the
policies shall not affect coverage provided to the City, its
officials, employees, agents or volunteers.
(iv) Coverage shall state that the Contractor's insurance shall
apply separately to each insured against whom claim is
made or suit is brought, except with respect to the limits of
the insurer's liability.
(v) Coverage shall be provided on a "pay on behalf' basis,
with defense costs payable in addition to policy limits.
There shall be no cross liability exclusion.
7
(vi) The insurer agrees to waive all rights of subrogation against
the City, its officials, employees, agents and volunteers for
losses arising from work performed by the Contractor for
the City.
(vii) All endorsements to policies shall be executed by an
authorized representative of the insurer.
(b) Workers' Compensation Coverage: The insurer will agree to waive
all rights of subrogation against the City, its officials, employees,
agents and volunteers for losses arising from work performed by
the Contractor for the City.
(c) All Coverages:
(i) Each insurance policy required by this clause shall be
endorsed to state that coverage shall not be suspended,
voided, canceled, reduced in coverage or in limits except
after thirty (30) days prior written notice by certified mail,
return receipt requested, has been given to the City.
(ii) Policies shall have concurrent starting and ending dates.
(iii) Policies shall include an endorsement incorporating the
Indemnification obligations assumed by the Contractor
under the terms of this Agreement, including but not
limited to Section 7(1) of this Agreement.
(iv) Policies shall include an endorsement incorporating the
Indemnification obligations assumed by the Contractor
under the terms of this Agreement, including but not
limited to Section 7(I) of this Agreement.
(5) Acceptability of Insurers: Insurance is to be placed with insurers with an
A.M. Bests' rating of no less than A: VII.
(6) Verification of Coverage: Contractor shall furnish the City with
certificates of insurance and endorsements to the policies evidencing
coverage required by this clause prior to the start of work. The certificates
of insurance and endorsements for each insurance policy are to be signed
by a person authorized by that insurer to bind coverage on its behalf. The
certificate of insurance and endorsements shall be on a form utilized by
Contractor's insurer in its normal course of business and shall be received
and approved by the City prior to execution of this Agreement by the City.
The City reserves the right to require complete, certified copies of all
required insurance policies, at any time. The Contractor shall provide
N.
proof that any expiring coverage has been renewed or replaced at least two
(2) weeks prior to the expiration of the coverage.
(7) Subcontractors: Contractor shall include all subcontractors as insured
under its policies or shall furnish separate certificates and endorsements
for each subcontractor. All coverage for subcontractors shall be subject to
all of the requirements stated in this Agreement, including but not limited
to naming the parties as additional insured.
(8) Claims -Made Policies: Contractor shall extend any claims -made
insurance policy for at least six (6) years after termination or final
payment under the Agreement, whichever is later.
(4) City as Additional Insured and Loss Payee: The City shall be named as an
additional insured and loss payee on all policies required by this
Agreement.
L. Employment of Unauthorized Aliens Prohibited
(1) E -Verify Affidavits
It is the policy of the City of Milton that unauthorized aliens shall not be
employed to perform work on City contracts involving the physical performance
of services. Therefore, the City shall not enter into a contract for the physical
performance of services within the State of Georgia, unless the Contractor shall
provide evidence on City -provided forms, attached hereto as Exhibits "E" and "F"
that it and Contractor's subcontractors have within the previous twelve (12)
month period conducted a verification of the social security numbers of all
employees who will perform work on the City contract to ensure that no
unauthorized aliens will be employed. The City Manager or his/her designee
shall be authorized to conduct an inspection of the Contractor's and Contractor's
subcontractors' verification process to determine that the verification was correct
and complete. The Contractor and Contractor's subcontractors shall retain all
documents and records of its verification process for a period of three (3) years
following completion of the contract. This requirement shall apply to all
contracts for the physical performance of services where more than three (3)
persons are employed on the City contract.
The City Manager or his/her designee shall further be authorized to conduct
periodic inspections to ensure that no City Contractor or Contractor's
subcontractors employ unauthorized aliens on City contracts. By entering into a
contract with the City, the Contractor and Contractor's subcontractors agree to
cooperate with any such investigation by making its records and personnel
available upon reasonable notice for inspection and questioning. Where a
Contractor or Contractor's subcontractors are found to have employed an
unauthorized alien, the City Manager or his/her designee may order the
Contractor to terminate or require its subcontractor to terminate that person's
employment immediately and to report same to the Department of Homeland
Security. The Contractor's failure to terminate the employee, or otherwise
cooperate with the investigation may be sanctioned by termination of the contract,
and the Contractor shall be liable for all damages and delays occasioned by the
City thereby.
Compliance with the requirements of G.C.G.A. § 13-10-91 and Rule 300-10-1-.02
is mandatory.
Contractor agrees that, in the event the Contractor employs or contracts with any
subcontractor(s) in connection with this Agreement, the Contractor will secure
from the subcontractor(s) such subcontractor(s') indication of the above
employee -number category that is applicable to the subcontractor.
Contractor's compliance with the requirements of G.C.G.A. § 13-10-91 and Rule
300-10-1-.02 shall be attested by the execution of the contractor's affidavit
attached as Exhibit "E."
The above requirements shall be in addition to the requirements of State and
federal law, and shall be construed to be in conformity with those laws.
(2) SAVE Affidavit and Secure Verifiable Document
Pursuant to D.C.G.A. § 50-35-1, the City must obtain a SAVE Affidavit and a
secure and verifiable document evidencing the Contractor's legal status in the
Country each time that Contractor obtains a public benefit, including any
contract, from the City. Contractor hereby verifies that it has, prior to executing
this Agreement, executed a SAVE Affidavit (to be sworn under oath under
criminal penalty of false swearing pursuant to O.C.G.A. § 15-10-71), a form of
which is attached hereto as Exhibit "G", and submitted such affidavit to the City
in person, electronically, or by mail. Further, Contractor verifies that it has, prior
to executing this Agreement, submitted a secure and verifiable document,
evidencing the Contractor's legal status, to the City either in person or
electronically (in compliance with the Uniform Electronic Transactions Act).
Contractor verifies that it is in compliance with the Residency Status of an
Applicant for Public Benefit, as required by the Georgia Security and Immigration
Compliance Act (0-C.G.A. § 50-35-1).
M. Records. Reports and Audits
(1) Records:
(a) Records shall be established and maintained by the Contractor in
accordance with requirements prescribed by the City with respect
to all matters covered by this Agreement. Except as otherwise
authorized, such records shall be maintained for a period of three
years from the date that final payment is made under this
Agreement. Furthermore, records that are the subject of audit
findings shall be retained for three years or until such audit
10
findings have been resolved, whichever is later.
(b) All costs shall be supported by properly executed payrolls, time
records, invoices, contracts, or vouchers, or other official
documentation evidencing in proper detail the nature and propriety
of the charges. All checks, payrolls, invoices, contracts, vouchers,
orders or other accounting documents pertaining in whole or in
part to this Agreement shall be clearly identified and readily
accessible.
(2) Reports and Information: Upon request, the Contractor shall furnish to the
City any and all statements, records, reports, data and information related
to matters covered by this Agreement in the form requested by the City.
(3) Audits and Inspections: At any time during normal business hours and as
often as the City may deem necessary, there shall be made available to the
City for examination all records with respect to all matters covered by this
Agreement. The Contractor will permit the City to audit, examine, and
make excerpts or transcripts from such records, and to audit all contracts,
invoices, materials, payrolls, records of personnel, conditions of
employment and or data relating to all matters covered by this Agreement.
N. Conflicts of Interest
Contractor agrees that it shall not engage in any activity or conduct that would
result in a violation of the City of Milton Code of Ethics.
0. Confidentiality
Contractor acknowledges that it may receive confidential information of the City
and that it will protect the confidentiality of any such confidential information and
will require any of its subcontractors, consultants, and/or staff to likewise protect
such confidential information. The Contractor agrees that confidential
information it receives or such reports, information, opinions or conclusions that
Contractor creates under this Agreement shall not be made available to, or
discussed with, any individual or organization, including the news media, without
prior written approval of the City. The Contractor shall exercise reasonable
precautions to prevent the unauthorized disclosure and use of City information
whether specifically deemed confidential or not.
P. Licenses. Certifications and Permits
The Contractor covenants and declares that it has obtained all diplomas,
certificates, licenses, permits or the like required of the Contractor by any and all
national, state, regional, county, local boards, agencies, commissions, committees
or other regulatory bodies in order to perform the services contracted for under
this Agreement. All work performed by Contractor under this Agreement shall be
in accordance with applicable legal requirements and shall meet the standard of
11
quality ordinarily expected of competent professionals.
Q. [Reserved]
R. Authority to Contract
The Contractor covenants and declares that it has obtained all necessary approvals
of its board of directors, stockholders, general partners, limited partners or similar
authorities to simultaneously execute and bind Contractor to the terms of this
Agreement, if applicable.
S. Ownership of Work
All reports, designs, drawings, plans, specifications, schedules, work product and
other materials prepared or in the process of being prepared for the services to be
performed by the Contractor ("materials") shall be the property of the City and
the City shall be entitled to full access and copies of all such materials. Any such
materials remaining in the hands of the Contractor or subcontractor upon
completion or termination of the work shall be delivered immediately to the City.
The Contractor assumes all risk of loss, damage or destruction of or to such
materials. If any materials are lost, damaged or destroyed before final delivery to
the City, the Contractor shall replace them at its own expense. Any and all
copyrightable subject matter in all materials is hereby assigned to the City and the
Contractor agrees to execute any additional documents that may be necessary to
evidence such assignment.
T. Meetings
The Contractor is required to meet with the City's personnel, or designated
representatives, to resolve technical or contractual problems that may occur
during the term of the contract, at no additional cost to the City. Meetings will
occur as problems arise and will be coordinated by the City. The Contractor will
be given a minimum of three full working days notice of meeting date, time, and
location. Face-to-face meetings are desired. However, at the Contractor's option
and expense, a conference call meeting may be substituted. Consistent failure to
participate in problem resolution meetings, two consecutive missed or
rescheduled meetings, or to make a good faith effort to resolve problems, may
result in termination of the contract.
Section 8 Covenants of the City
A. Right of Entry
The City shall provide for right of entry for Contractor and all necessary
equipment along the Bethany Bend Road right-of-way, in order for Contractor to
complete the Work.
12
B. City's Representative
Matt Fallstrom shall be authorized to act on the City's behalf with respect to the
Work as the City's designated representative
Section 9 Warranty
Except as may be otherwise specified or agreed, the Contractor shall repair all defects in
materials, equipment, or workmanship appearing within one year from the date of Final
Completion of the Project at no additional cost to the City. An inspection shall be conducted by
the City or its representative(s) near the completion of the one-year general warranty period to
identify any issues that must be resolved by the Contractor.
Section 10 Termination
A. The City may terminate this Agreement for convenience at any time upon written
notice to Contractor. In the event of a termination for convenience, Contractor
shall take immediate steps to terminate work as quickly and effectively as
possible and shall terminate all commitments to third -parties unless otherwise
instructed by the City. Provided that no damages are due to the City for
Contractor's failure to perform in accordance with this Agreement, the City shall
pay Contractor for work performed to date in accordance with Section 5 herein.
The City shall have no further liability to Contractor for such termination.
B. The City may terminate this Agreement for cause if Contractor breaches any
material provision of this Agreement. The City shall give Contractor seven (7)
days written notice of its intent to terminate the Agreement and the reasons
therefore, and, if Contractor, or its Surety, fails to cure the default within that
period, the termination shall take place without further notice. The City shall then
make alternative arrangements for completion of the Project and deduct the cost
of completion from the unpaid Contract Price. The City will make no payment to
the Contractor or its Surety until all costs of completing the Project are paid. If
the unpaid balance of the amount due the Contractor, according to this agreement,
exceeds the cost of finishing the Project, the Contractor or its Surety will receive
the applicable funds due. If the costs of completing the Project exceed the unpaid
balance, the Contractor or its Surety will pay the difference to the City.
C. If the City terminates this Agreement for cause, and it is later determined that the
City did not have grounds to do so, the termination will be treated as a termination
for convenience under the terms of this Section (A) above.
D. Upon termination, the Contractor shall: (1) promptly discontinue all services
affected, unless the notice directs otherwise; and (2) promptly deliver to the City
all data, drawings, reports, summaries, and such other information and materials
as may have been generated or used by the Contractor in performing this
Agreement, whether completed or in process, in the form specified by the City.
E. The rights and remedies of the City and the Contractor provided in this Section
13
are in addition to any other rights and remedies provided under this Agreement or
at law or in equity.
Section 11 Miscellaneous
A. Complete Agreement. This Agreement contains all of the understandings and
agreements of whatsoever kind and nature existing between the parties hereto
with respect to the subject matter contained herein.
B. Governing Law. This Agreement shall be governed by and construed under the
laws of the State of Georgia.
C. Counterparts. This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
D. Invalidity of Provisions. Should any part of this Agreement for any reason be
declared by any court of competent jurisdiction to be invalid, such decision shall
not affect the validity of any remaining portion, which remaining portion shall
continue in full force and effect as if this Agreement had been executed with the
invalid portion hereof eliminated, it being the intention of the parties that they
would have executed the remaining portion of this Agreement without including
any such part, parts or portions which may for any reason be hereafter declared
invalid.
E. Notice. All notices requests, demands and other communications hereunder shall
be in writing and shall be deemed received, and shall be effective when personally
delivered or on the third day after the postmark date when mailed by certified
mail, postage prepaid, return receipt requested or upon actual delivery when sent
via national overnight commercial carrier to the parties at the addresses given
below, unless a substitute address shall first be furnished to the other parties by
written notice in accordance herewith:
NOTICE TO CITY shall be sent to:
City of Milton
Attn: City Manager
13000 Deerfield Parkway, Suite 107F
Milton, Georgia 30004
NOTICE TO CONTRACTOR shall be sent to:
Blount Construction Company, Inc.
1730 Sands Place
Marietta, GA 30067
14
F. Sovereign Immunity. Nothing contained in this Agreement shall be construed to
be a waiver of the City's sovereign immunity or any individual's qualified good
faith or official immunities.
G. Force Majeure. Neither the City nor Contractor shall be liable for their respective
non -negligent or non -willful failure to perform or shall be deemed in default with
respect to the failure to perform (or cure a failure to perform) any of their
respective duties or obligations under this Agreement or for any delay in such
performance due to: (i) any cause beyond their respective reasonable control; (ii)
any act of God; (iii) any change in applicable governmental rules or regulations
rendering the performance of any portion of this Agreement legally impossible;
(iv) earthquake, fire, explosion or flood; (v) strike or labor dispute, excluding
strikes or labor disputes by employees and/or agents of Contractor; (vi) delay or
failure to act by any governmental or military authority; or (vii) any war, hostility,
embargo, sabotage, civil disturbance, riot, insurrection or invasion. In such event,
the time for performance shall be extended by an amount of time equal to the
period of delay caused by such acts and all other obligations shall remain intact.
H. Headings. All headings herein are inserted only for convenience and ease of
reference and are not to be considered in the construction or interpretation of any
provision of this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
under seal as of the date first above written.
[SIGNATURES ON FOLLOWING PAGE]
15
(Blount nstru n o ny, Inc.)
signatu
Bob Cathcart
Print Name Vic® -President
Title
SIGNED, SEALED, AND DELIVEREI)
In the pres ce of:
ness (CorporajbfijfTjff6 jf8ould attest)
Secretary/Treasurer
P i Name
tary Public
[AFFIX CORPORATE SEAL]
t ���►tis�a��E
[NOTARY SEAL] �[�oo�
My Commission Expires: z ,� • NAOTT9�, ;
�GUNTY, G++++,MILTON
SIGNED, SEALED, AND DELIVERED_
In the presence of:
Witness
Notary Public
[NOTARY SEAL]
My Commission Expires:
CITY COUNCIL:
Joe Lockwood, Mayor
16
[CITY SEAL]
EXHIBIT "A"
REO VEST FOR BID
Sidewalk and Curb and Gutter
Replacement
BIDS DUE September 19th, 2012 BY 3:00
un4
City of Milton, Georgia
Scope of Work and Schedule
The undersigned, as bidder, declares and represents that it has examined the site of the work and
informed himself/herself fully in regard to all conditions pertaining to the place where the work is to be
performed, including those conditions affecting the cost of the work and the delivery, handling and
storage of materials and equipment. The bidder has examined and read the Bidding Document and
has satisfied himselflherself that the Bidding Document is an adequate and acceptable reflection of
the work which is required to be performed and that the bidder is willing and able to perform all of the
work necessary. The bidder further certifies that no additional information is required to complete the
work encompassed by this bid within the cost and schedule established and agreed upon within this
bidding document.
The bidder proposes and agrees that if this bid is accepted to contract with the City of Milton to
provide all construction labor, materials, equipment, products, transportation, and other facilities and
services as necessary and/or required to execute and complete the work in full in accordance with the
scope of work provided to the full satisfaction of the city. Bids over $5000.00 will require payment and
performance bonds on the form provided by the City of Milton
THE BASE BID IS THE AMOUNT UPON WHICH THE BIDDER WILL BE FORMALLY EVALUATED
AND WHICH WILL BE USED TO DETERMINE THE LOWEST RESPONSIBLE BIDDER.
The base bid may not be withdrawn or modified, except at the request of the city, for a period of sixty
(60) days following receipt of the bids.
This is a lump sum payment project. Quantities shown on the attached drawings are for reference
only.
BIDS DUE September 19th, 2012 BY 3:00 PM
1.0 General Conditions
a) Construction activity within 1000 feet on an occupied residence will be allowed Mon. -Fri. between
the hours of 7:34 AM and 7:30 PM and Sat. between 8:30 AM and 5:00 PM. Construction activity
more than 1000 feet from an occupied residence will be allowed Mon.- Fri. between the hours of
7:00 AM and 10:00 PM and Sat. between the hours of 8:30 AM and 6:00 PM.
b) Contractor must notify the City of Milton (678) 242-2500, twenty-four (24) hours prior to beginning
construction.
c) Burial of construction materials is not permitted within the City of Milton. All construction materials
and debris within the work area shall be properly disposed of by the contractor.
d) Contractor shall provide all necessary tools, equipment, labor and materials to perform all work as
defined in the following scope and schedule.
2.0 Erosion and Sediment Control
a) All erosion and sediment control work necessary for the completion of this project shall be in
accordance with the standards provided in the Georgia Manual for Erasion and Sediment Control
in Georgia, latest edition.
bj Temporary vegetation and/or heavy mulch will be used to stabilize areas. In no case shall a site
be left bare for more than fourteen (14) days.
c) Provide a minimum of 1/2 inch of mulching, temporary and permanent seeding on all other
disturbed areas.
3.0 E=arthwork
a) Sub -grade preparation shall be in accordance with GDQT specifications and these regulations.
b) Provisions shall be made by the contractor to ensure adequate drainage and prevent possible
damage to the work area.
4.0 Paving, Curia and Gutter, and Sidewalk
a) All asphalt, sidewalk and curb and gutter shall be saw -cut and removed at the nearest joint prior
to removal.
b) Curb and gutter shall be Class "B" concrete (as defined by Georgia D.D.F.) and have a minimum
strength of 3,000 PSI at 28 days.
c) Typical curb and gutter section shall match the existing curb and gutter and follow the detail in
Section 10.9 b).
d) One-half inch expansion joints or pre -molded bituminous expansion joint material shall be
provided at each tie-in point.
e) Curb and gutter shall be set true to line and grade to ensure proper drainage.
f) Curb ramps and detectable warning strips shall be provided at locations identified and meet ADA
requirements.
g) Sidewalk and concrete ramps shall be installed at locations in Section 9.0 and meet City of Milton
Subdivision Construction Standards.
h) Inferior workmanship or unprofessional construction methods resulting in unacceptable paving,
curb and gutter, or sidewalk will be cause for rejection of the finished work.
i) Temporary sidewalk shall be provided at all locations where existing sidewalk has been identified
to be removed and replaced.
5.0 Utilities
a) The contractor shall be required to coordinate and manage any and all utility locates and/or
relocations within the scope of this project.
6.0 Performance
a) All work performed shall be in accordance City of Milton Subdivision Construction Standards. The
contractor will adhere to all current State and Federal construction safety regulations, including
OSHA regulations. The Contractor will conform to MUTCD and the State of Georgia Department
of Transportation standards for traffic control_ The Contractor must maintain a safe work zone for
their employees, pedestrians, and vehicular transportation. All work shall be inspected and
approved by the City of Milton Department of Public Works (MDPW).
7.0 Schedule
a) Project shall start within 10 calendar days of the notice to proceed and be completed in
satisfactory manner, as deemed by MDPW, within 30 calendar days from the notice to proceed.
8.0 Unit Prices
The city shall have the option of exercising any or all of the unit prices listed below at any point in the
project. All unit price amounts shall be items furnished and installed based on the project specified
materials.
[tem #
Description
Unit
Unit Price
1
Graded Aggregate Base Course
TN
2
Saw -Cut Asphalt
LF
3
Saw -Cut Concrete
LF
4
Concrete Sidewalk, 4"
LF
5
Concrete Sidewalk, 5"
LF
6
Concrete Curb and Gutter, 6"x24"
LF
T
Concrete Pavement, 8"
SY
8
❑electable Warning Strip (2'x 4)
EA
9
Curb Cut Ramp
EA
10
Temporary Mulching
TN
11
Permanent Grass Seeding
SY
12
Type A Silt Fence
LF
Lump Sum Price $
9.0 Locations
Sunvalley Subdivision on Bethany Bend
Sidewalk along Bethany Bend Frontage 30f
N. Bethany Creek Subdivision On Bethany Bend
Sidewalk along Bethany Bend Frontage 50f
2055 N. Bethany Creek Dr. Sidewalk behind basin lid
2034 N. Bethany Creed Dr. Curb section under the mailbox and in front of
the address
S. Bethany Creek Subdivision on Bethany Bend
1180 S. Bethany Creek Dr. of Sidewalk
1140 S. Bethany Creek Dr. Sidewalk behind basin lid with meter
1110 S. Bethany Creek Dr. Sidewalk by cable box
1090 S. Bethany Creek Dr. sidewalk behind Basin lid
1175 S Bethany Creek Dr. Curb by Basin
1040 S. Bethany Creek Dr. Sidewalk behind basin
Curb along Bethany Bend frontage west of drive
Lake Laurel Subdivision on Hwy 9
175 Woodlake Dr. Sidewalk.
3125 Woodbranch Dr. Sidewalk
3255 Woodbranch Dr. Sidewalk.
3285 Woodbranch Dr. Sidewalk
130 Wood Pine Court Sidewalk
450 Pine Bough Sidewalk behind Basin
420 Pine Bough Sidewalk behind Basin
Laurel Grove Subdivision on Dinsmore Rd.
15375 Laurel Grove Dr. Curb
20ft
15400 Laurel Grove Dr. Curb
20ft
2105 Lake Grove Curb
loft
2115 Lake Grove Curb
loft
2155 Lake Grove Curb
24f
North Fields Subdivision on Hopewell Rd
435 North Fields Pass Sidewalk
12ft
495 North Fields Pass Sidewalk with water valves
left
Acaro Subdivision off Hwy 372
490 Acaro Dr. sidewalk across from this address
100f
5ft
25ft
20ft
5ft
12ft
5ft
loft
loft
loft
6ft
12ft
20ft
12ft
7ft
loft
15f
10.0 Details
Curb & Gutter Details
No Text
a) Standard Sidewalk Section
�ewR
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EXHIBIT `B"
BID FROM CONTRACTOR
Scope of Work and Schedule
The undersigned, as bidder, declares and represents that it has examined the site of the work and
informed himselflherself fully in regard to all conditions pertaining to the place where the work is to be
performed, including those oonditions affecting the cost of the work and the delivery, handling and
storage of materials and equipment. The bidder has examined and read the Bidding Document and
has satisfied himself/herself that the Bidding Document is an adequate and acceptable reflection of
the work which is required to be performed 2nd that the bidder is willing and able to perform all of the
work necessary. The bidder further certifies that no additional information is required to complete the
work encompassed by this bid within the cost and schedule established and agreed upon within this
bidding document.
The bidder proposes and agrees that if this bid is accepted to contract with the City of Milton to
provide all construction labor, materials, equipment, products, transportation, and other facilities and
services as necessary andlar required to execute and complete the work in full in accordance with the
scope of work provided to the full satisfaction of the city. Bids over $5000.OD will require payment and
performance bonds on the farm provided by the City of Milton
THE BASE BID IS THE AMOUNT UPON WHICH THE BIDDER WILL BE FORMALLY EVALUATED
AND WHICH WILL BE USED TO DETERMINE THE LOWEST RESPONSIBLE JBIDIDER.
The base bid may not be withdrawn or modified, except at the request of the city, for a period of sixty
(BO) days following receipt of the bids.
This is a lump sum payment protect. Quantities shown on the attached drawings are for reference
Drily.
BIOS DUE September 19th, 2012 BY 3:00 PM
Blount Construction Co., Inc.
(Company Name)
$ 19,500.00
(Dollar Amount in l'
Nineteen thousand, five hundred dollars and D01100
(Dollar Amount in Words) T
F�
Bab {'ash caTl #
Vice -Pres
8.0 Unit Prices
The city shall have the option of exercising any or all of the unit prices listed below at any point in the
project. All unit price amounts shall be items furnished and installed based on the project specified
materials.
Lump Sum Price $_18,500.00 f�
b A ] r.rafirr,c -
,::':`-::::; :.
Unit
Utah i?rice
1
Graded Aggregate Base Course
TIN
$66.00
2
Saw -Cut Asphalt
LF
$5.00
3
Saw -Gut Concrete
LF
$5.00
4
Concrete Sidewalk, 4"
SY
$54.14
5
6
Concrete Curb and Gutter, 6"x24"
LF
$30-00
7
Concrete Pavement, 8"
SY
$62.90
a
Detectable Warning Strip (2'x 4')
EA
$675.00
9
Curb Cut stamp
EA
$425-00
10
Temporary Mulching
TN
$100.00
11
Permanent Grass Seeding
SY
S4.50
12
Type A Silt Fence
LF
$9.ili1
Lump Sum Price $_18,500.00 f�
b A ] r.rafirr,c -
EXHIBIT "C"
BONDS
PAYMENT BOND
CITY OF MILTON, GEORGIA
KNOW ALL MEN BY THESE PRESENTS THAT Blount Construction Company, Inc. (as
CONTRACTOR, hereinafter referred to as the "Principal"), and
as SURETY COMPANY, hereinafter
referred to as the "CONTRACTOR'S SURETY"), are held and firmly bound unto the City of
Milton, Georgia (as OWNER, hereinafter referred to as the "City"), for the use and benefit of
any "Claimant," as hereinafter defined, in the sum of nineteen thousand five hundred Dollars
($19,500), lawful money of the United States of America, for the payment of which the Principal
and the Contractor's Surety bind themselves, their heirs, executors, administrators, successors
and assigns, jointly and severally, firmly by these presents.
WHEREAS, the Principal has entered, or is about to enter, into a certain written
agreement with the City, dated , which is incorporated herein by reference in
its entirety (hereinafter referred to as the "CONTRACT"), for the construction of a project
known as Sidewalk and Curb and Gutter Replacement (hereinafter referred to as "the
PROJECT").
NOW THEREFORE, the condition of this obligation is such that if the Principal shall
promptly make payment to any Claimant, as hereinafter defined, for all labor, services and
materials used or reasonably required for use in the performance of the Contract, then this
obligation shall be void; otherwise to remain in full force and effect.
A "Claimant" shall be defined herein as any Subcontractor, person, Party, partnership,
corporation or other entity furnishing labor, services or materials used or reasonably required for
use in the performance of the Contract, without regard to whether such labor, services or
materials were sold, leased or rented, and without regard to whether such Claimant is or is not in
privity of the Contract with the Principal or any Subcontractor performing Work on the Project.
In the event of any claim made by the Claimant against the City, or the filing of a Lien
against the property of the City affected by the Contract, the Contractor's Surety shall either
settle or resolve the Claim and shall remove any such Lien by bond or otherwise as provided in
the Contract.
The Parties further expressly agree that any action on this Bond may be brought within
the time allowed by Georgia law for suit on contracts under seal.
IN WITNESS WHEREOF, the Principal and Contractor's Surety have hereunto affixed
their corporate seals and caused this obligation to be signed by their duly authorized officers on
this day of , 2012.
(Blount Construction Company, Inc.)
IM
Title:
(Signatures Continued on Next Page)
Attest:
Title:
Date:
Attest:
Date:
(Name of Contractor's Surety)
IC
Title: (SEAL)
(ATTACH SURETY'S POWER OF ATTORNEY)
PERFORMANCE BOND
CITY OF MILTON, GEORGIA
KNOW ALL MEN BY THESE PRESENTS THAT Blount Construction Company,
Inc. (as CONTRACTOR, hereinafter referred to as the "Principal"), and
(as SURETY COMPANY, hereinafter referred to as the "CONTRACTOR'S SURETY"), are
held and firmly bound unto the City of Milton, Georgia (as OWNER, hereinafter referred to as
the "City"), for the use and benefit of any "Claimant," as hereinafter defined, in the sum of
nineteen thousand five hundred Dollars ($19,500), lawful money of the United States of
America, for the payment of which the Principal and the Contractor's Surety bind themselves,
their heirs, executors, administrators, successors and assigns, jointly and severally, firmly by
these presents.
WHEREAS, the Principal has entered, or is about to enter, into a certain written
agreement with the City, dated the of , 2012 which is incorporated
herein by reference in its entirety (hereinafter referred to as the "CONTRACT'), for the
construction of a project known as Sidewalk and Curb and Gutter Replacement, (hereinafter
referred to as "the PROJECT").
NOW THEREFORE, the conditions of this obligation are as follows:
I . That if the Principal shall fully and completely perform each and all of the terms,
provisions and requirements of the Contract, including and during the period of
any warranties or guarantees required thereunder, and all modifications,
amendments, changes, deletions, additions, and alterations thereto that may
hereafter be made, and if the Principal and the Contractor's Surety shall
indemnify and hold harmless the City from any and all losses, liability and
damages, claims, judgments, liens, costs and fees of every description, including
but not limited to, any damages for delay, which the City may incur, sustain or
suffer by reason of the failure or default on the part of the Principal in the
performance of any and all of the terms, provisions and requirements of the
Contract, including all modifications, amendments, changes, deletions, additions,
and alterations thereto and any warranties or guarantees required thereunder, then
this obligation shall be void; otherwise to remain in full force and effect;
2. In the event of a failure of performance of the Contract by the Principal, which
shall include, but not be limited to, any breach of default of the Contract:
a. The Contractor's Surety shall commence performance of its obligations
and undertakings under this Bond no later than thirty (30) days after
written notice from the City to the Contractor's Surety; and
b. The means, method or procedure by which the Contractor's Surety
undertakes to perform its obligations under this Bond shall be subject to
the advance written approval of the City.
The Contractor's Surety hereby waives notice of any and all modifications, omissions,
additions, changes and advance payments or deferred payments in or about the Contract, and
agrees that the obligations undertaken by this Bond shall not be impaired in any manner by
reason of any such modifications, omissions, additions, changes, and advance payments or
deferred payments. The Parties further expressly agree that any action on this Bond may be
brought within the time allowed by Georgia law for suit on contracts under seal.
35
IN WITNESS WHEREOF, the principal and Contractor's Surety have hereunto affixed
their corporate seals and caused this obligation to be signed by their duly authorized officers or
attorneys -in -fact, this day of , 2012.
Attest:
Title:
Date:
Attest:
Date:
(Blount Construction Company, Inc.)
M.
Title:
(Naine of Contractor's Surety)
LIM
Title: (SEAL)
(ATTACH SURETY'S POWER OF ATTORNEY)
36
EXHIBIT "D"
PLANS AND SPECIFICATIONS
All that work required by and included in Exhibit A
37
EXHIBIT "E"
STATE OF GEORGIA
CITY OF MILTON
CONTRACTOR AFFIDAVIT AND AGREEMENT
By executing this affidavit, the undersigned contractor verifies its compliance with O.C.G.A. §
13-10-91, stating affirmatively that the individual, firm, or corporation which is contracting with
the City of Milton has registered with and is participating in a federal work authorization
program, in accordance with the applicability provisions and deadlines established in O.C.G.A. §
13-10-91.
The undersigned further agrees that, should it employ or contract with any subcontractor(s) in
connection with the physical performance of services pursuant to this contract with the City of
Milton, contractor will secure from such subcontractor(s) similar verification of compliance with
O.C.G.A. § 13-10-91 on the Subcontractor Affidavit provided in Rule 300-10-01-.08 in the form
attached hereto as Exhibit "F" Contractor further agrees to maintain records of such compliance
and provide a copy of each such verification to the City of Milton at the time the subcontractor(s)
is retained to perform such service.
17 r 21 o
EEV / Basic Pilot ro a U e/r Ideentifi ation Number
BY: Authorized Officer or gent Date
(Blount Constru .on Company, Inc.)
r �r
V
Title of Authorized Officerq� Age t f Co tractor
ti015 eaWlcan
Vice -President
Printed Name of Authorized Officer or Agent
SUBSCRIBED AND SWORN
ZE ME ON
DAY OFaim,,)
, 2012
ILIr+.'Tim imDIM
My Commissio Expires:
.�� � � �;�SsfC7N�•ti I�
7a %q
..ares..:••
OUN;`
38
STATE OF GEORGIA
CITY OF MILTON
EXHIBIT "F"
SUBCONTRACTOR AFFIDAVIT
By executing this affidavit, the undersigned subcontractor verifies its compliance with O.C.G.A.
§ 13-10-91, stating affirmatively that the individual, firm or corporation which is engaged in the
physical performance of services under a contract with Blount Construction Company, Inc.
on behalf of the City of Milton has registered with and is participating in a federal work
authorization program, in accordance with the applicability provisions and deadlines established
in O.C.G.A_§ 13-10-91.
EEV 1 Basic Pilot Program User Identification Number
BY: Authorized Officer or Agent Date
Subcontractor Name
Title of Authorized Officer or Agent of Subcontractor
Printed Name of Authorized Officer or Agent
SUBSCRIBED AND SWORN
BEFORE ME ON THIS THE
DAY OF , 2012
Notary Public
My Commission Expires:
Me]
STATE OF GEORGIA
CITY OF MILTON
EXHIBIT "G"
SAVE Affidavit
By executing this affidavit under oath, and as an applicant for a public benefit, as referenced in
O.C.G.A. § 50-36-1, from the City of Milton, the undersigned applicant verifies one of the following with
respect to my application for a public benefit:
1) I am a United States citizen.
2) I am a legal permanent resident of the United States.
3) I am a qualified alien or non-immigrant under the Federal Immigration and Nationality Act
with an alien number issued by the Department of Homeland Security or other federal
immigration agency.
My alien number issued by the Department of Homeland Security or other federal
immigration agency is:
The undersigned applicant also hereby verifies that he or she is 18 years of age or older and has provided
at least one secure and verifiable document, as required by O.C.G.A.
§ 50-36-1(e)(1), with this affidavit.
The secure and verifiable document provided with this affidavit can best be classified as:
�jL�c1c-r�S �G�•tirS v
In malcing the above representation under oath, I understand that any person who knowingly and willfully
makes a false, fictitious, or fraudulent statement or representation in an affidavit shall be guilty of a
violation of O.C.G.A. § 16-10-20, and face criminal penalties as allowed by such criminal statute.
Executed in ��rZ- (city), (S rk (state).
61111:Ixtl N I :I :1 OW ►101 I ffiel 11► �
BEFORE ME S THE
DAY OF 201-1
N ARY PUBLIC
My Commission Expires:'r�y
r�
Sig ature of Applicant
Bob Cathcart
Printed Name of Applicant
,%%IIIIII111
Z Co s� t_,0TA9y ; 4'
4O-
1111111100
�C3�+ti hkgERH6��• `�
40
City of Milton
13000 Deerfield Parkway, Milton, Georgia 30004
1
To: Honorable Mayor and City Council Members
From: Sara Leaders, PE – Transportation Engineer
Date: Submitted on November 6, 2012 for the November 19, 2012 Regular Council
Meeting
Agenda Item: Approval of the Acquisition of 1,247.47 SF of Right of Way, 5,434.51 SF of
Permanent Construction and Maintenance Easement at 12655 New Providence
Road from Panayotis and Zoe Theofandis for a Total Combined Purchase Price
of $18,000
____________________________________________________________________________
Department Recommendation:
Staff is recommending approval of the acquisition of right of way and easements in the amount
of $18,000.
Executive Summary:
To provide for intersection improvements the acquisition of 1,247.47 SF of right of way, and
5,434.51 SF of permanent construction and maintenance easement is required. The
combined purchase price is $18,000.
Funding and Fiscal Impact:
Funding for this acquisition is available in the SR140/Arnold Mill Rd at New Providence Rd
Intersection Improvement capital grant fund account and 80% of purchase price is reimbursable.
Alternatives:
N/A
Legal Review:
N/A
Concurrent Review:
Chris Lagerbloom, City Manager
Attachment(s):
Purchase Agreement
RX Pandas .Johnston 7706710190
q p.1
~ � AGREEMENT To PURCHASE REAS. ESTATE
GA DDT Project#-JAPP00-4000-00(533). .`.
P.I. Number _0000533 Parcel 7
Tax Parcel ID # 22 3710-1139-034-0
GEORGIA, Ftp COUNTY -
For and In consideration of the sura of One Dollar ($9.00), recelptwhereof being acknowledged, the undersigned
grants to Ci a G es a a a sWqLailoa an option to acquire the following described real
estate.
Right of Way and/or Easement rights through that tract or Parcel of land located in Land Lot-IJ-39of the
end District, d Section of ufta County, Georgia, and being more
particularly described on Exhibit "A" attached hereto and made a Part hereof by fersnce.
AA
AUA
For the stun of $ ,� the undersigned agrees to execute and deliver to it onl ear la
D nt T s i fee simple title and easements to the lands owned by the undersigned as reflected
on the attached Exhibit "A".
* * A * * * * * a * * * • a a r a s, ,
The following conditions are Imposed upon the grant; of this option:
1) This option shall extend for 00 days from this elate.
2) The consideration recited Is full payment: for the rights conveyed.
12d7A7 jSquare Feet of Rlgitt of Way
Linear f=eet of Urnited Access
MUNI Square Feet of Consttuetion and Maintenance Easement
Squera Feet of TetaporaryConstruction Easement
3] All 7smpnrary Easements will terminate upon completion and acceptance of the sarme by the Repartment of
T(ansportation.
4) 'rite undersigned shall obtain all quit claEirn deeds or releases from any tenant now in possession and any
What parties having a claim or interest In the propefty described above.
6) Special Prnvlslons. If any, are listed on Exhibit "B". which is attached hereto and Incorporated hereln by
reference.
W tness my hand and seal this - - day of ]f) -p,
� —
SWned, Sealed and Delivered
In the pfesen of. *�o.0111 1114
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City of Milton
13000 Deerfield Parkway, Milton, Georgia 30004
1
To: Honorable Mayor and City Council Members
From: Sara Leaders, PE – Transportation Engineer
Date: Submitted on November 6, 2012 for the November 19, 2012 Regular Council
Meeting
Agenda Item: Approval of the Acquisition of 2,157.00 SF of Right of Way and 450.00 SF of
Permanent Construction and Maintenance Easement at 12700 New Providence
Road from Andrea L. and James R. Little for a Total Combined Purchase Price of
$34,500
____________________________________________________________________________
Department Recommendation:
Staff is recommending approval of the acquisition of right of way and easements in the amount
of $34,500.
Executive Summary:
To provide for intersection improvements at SR 140/Arnold Mill Rd and New Providence Rd, the
acquisition of 2,157.00 SF of right of way and 450.00 SF of permanent construction and
maintenance easement is required. The combined purchase price is $34,500.
Funding and Fiscal Impact:
Funding for this acquisition is available in the SR140/Arnold Mill Rd at New Providence Rd
Intersection Improvement capital grant fund account and 80% of purchase price is reimbursable.
Alternatives:
N/A
Legal Review:
N/A
Concurrent Review:
Chris Lagerbloom, City Manager
Attachment(s):
Purchase Agreement
AGREEMENT TO PURCHASE REAL ESTATE
GA DOT Project # HPP00-0000-00(533)
P. I. Number 0000533 Parcel # 6
Tax Parcel ID# 23 3710 1140-052-9
GEORGIA, FULTON COUNTY
For and in consideration of the sum of One Dollar ($1.00), receipt whereof being acknowledged, the undersigned
grants to City of Milton/Georgia Department of Transoortation an option to acquire the following described real
estate:
Right of Way and/or Easement rights through that tract or parcel of land logted in Land Lot 1� of the
2nd District, 2nd Section of Fulton County, Georgia, and being more
particularly described on Exhibit"A" attached hereto arse a part hereof by reference.
$39;989 X31;Su0,v
For the sum of $ the undersigned ag o execute and deliver to City of Milton/Georgia
Department of Transportation fee simple title and easements to the lands owned by the undersigned as reflected
on the attached Exhibit "A".
The following conditions are imposed upon the grant of this option:
1) This option shall extend for 90 days from this date.
2) The consideration recited is fuA payment for the rights conveyed.
2157 SF
JME, g>1 Square Feet of Right of Way
Square Feet of Temporary Construction Easement
� Special Provisions, If any, are listed on Exhibit "B",which is attached hereto and incorporated herein by
reference. (SEE ATTACHED SPECIAL PROVISIONS)
Witness my hand and seal this ��day of CJ ck
Signed, Sealed and Delivered
in the presence of:
DOT 663 -A -LG
Rev 08-01 2010
(Seal)
(Seal)
HPP00-0000-00(533)
Fulton County
Parcel 6
SPECIAL PROVISIONS
1. This agreement is contingent upon the City of Milton constructing a retaining wall
in accordance with the attached sketch, labeled "Option 3".
2. As a result of the wall design, the city of Milton agrees to reduce the permanent
easement area from 3,430 square feet to an area of 450+ square feet. Once the plan
revision is completed, the plans will be presented to property owner. If the area is
more than 480 square feet, the owner reserves the right to renegotiate the terms of
this agreement.
3. The compensation outlined herein compensates owner for the required right of way
area; permanent easement area; any affected landscaping; and any proximity
damages.
4. The City of Milton will add a note to the plans to request the roadway contractor
minimize the disturbance of trees and/or plants within the permanent easement area.
5. The City of Milton will agree to replace the affected drive at the north end of the
property as shown on the attached plat, at Station 23+90 Right.
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City of Milton
13000 Deerfield Parkway, Milton, Georgia 30004
1
To: Honorable Mayor and City Council Members
From: Sara Leaders, PE – Transportation Engineer
Date: Submitted on November 6, 2012 for the November 19, 2012 Regular Council
Meeting
Agenda Item: Approval of the Acquisition of 701.03 SF of Right of Way, 2,175.24 SF of
Permanent Construction and Maintenance Easement at 12600 Arnold Mill Road
from Fulton County for a Total Combined Purchase Price of $4,000
____________________________________________________________________________
Department Recommendation:
Staff is recommending approval of the acquisition of right of way and easements in the amount
of $4,000.
Executive Summary:
To provide for intersection improvements the acquisition of 701.03 SF of right of way, and
2,175.24 SF of permanent construction and maintenance easement is required. The
combined purchase price is $4,000.
Funding and Fiscal Impact:
Funding for this acquisition is available in the SR140/Arnold Mill Rd at New Providence Rd
Intersection Improvement capital grant fund account and 80% of purchase price is reimbursable.
Alternatives:
N/A
Legal Review:
N/A
Concurrent Review:
Chris Lagerbloom, City Manager
Attachment(s):
Purchase Agreement
AGREEMENT TO PURCHASE REAL ESTATE
GA DOT Project # HPP00-0000-00(533) LOCAL
P. I. Number 0000533 Parcel # 2
Tax Parcel ID # 23-3710-1139-009-2
GEORGIA, FULTON COUNTY
For and in consideration of the sum of One Dollar ($1.00), receipt whereof being acknowledged, the undersigned
grants to Georgia Department of Transportation/City of Milton an option to acquire the following described real
estate:
Right of Way and/or Easement rights through that tract or parcel of land located in Land Lot _1139_ of
the —2nd^ District, _2nd Section or GMD _1176 of FULTON County,
Georgia, and being more particularly described on Exhibit "A" attached hereto and made a part hereof by
reference.
For the sum of $ the undersigned agrees to execute and deliver to Georgia Department of
Transportation/Cil y of Milton fee simple title and easements to the lands owned by the undersigned as reflected on
the attached Exhibit "A",
The following conditions are imposed upon the grant of this option:
1) This option shall extend for 90 days from this date.
2) The consideration recited is full payment for the rights conveyed,
701.03 Square Feet of Right of Way
Linear Feet of Limited Access
2175.24 Square Feet of Permanent Construction and Maintenance Easement
Square Feet of Construction Easement
3) All Temporary Easements will terminate upon compfetion and acceptance of the same by the Department of
Transportation.
4) The undersigned shall obtain all quitclaim deeds or releases from any tenant now in possession and any
other parties having a claim or interest in the property described above.
5) Special Provisions, if any, are listed on Exhibit "B", which is attached hereto and incorporated herein by
reference.
Witness my hand and seal this `g day of
Signed, Seated and Delivered
in tig presence of:
IYV��a
Witittnnes's
Notary Public
IwnELlA M HUNTER
NOTARY PUBLIC
OEKALB COUNTY, GEO"
MY COMMISSION EXPIRE$
AUGUST 15, 2018
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City of Milton
13000 Deerfield Parkway, Milton, Georgia 30004
1
To: Honorable Mayor and City Council Members
From: Sara Leaders, PE – Transportation Engineer
Date: Submitted on November 6, 2012 for the November 19, 2012 Regular Council
Meeting
Agenda Item: Approval of the Acquisition of 15,648.88 SF of Right of Way and 14,060.42 SF of
Permanent Construction and Maintenance Easement at 14575 Providence Road
from Ray Sheppard and Melanie Lynn Brooks for a Total Combined Purchase
Price of $40,500
____________________________________________________________________________
Department Recommendation:
Staff is recommending approval of the acquisition of right of way and easements in the amount
of $40,500.
Executive Summary:
To provide for intersection improvements the acquisition of 15,648.88 SF of right of way and
14,060.42 SF of permanent construction and maintenance easement, is required. The
combined purchase price is $40,500.
Funding and Fiscal Impact:
Funding for this acquisition is available in the SR372/Birmingham Hwy at Providence Rd
Intersection Improvement capital grant fund account and 80% of purchase price is reimbursable.
Alternatives:
N/A
Legal Review:
N/A
Concurrent Review:
Chris Lagerbloom, City Manager
Attachment(s):
Purchase Agreement
AGREEMENT TO PURCHASE REAL ESTATE
GA DOT Project f#_HPPOO-0005-00(448)
P. 1. Number 00005448 Parcel # 12
Tax Parcel ID # 22•-3960-0847-014-4
GEORGIA, FULTON COUNTY
For and in consideration of the sure of One Dollar ($1.00), receipt whereof being acknowledge!, the undersigned
grants to City of MiltbnlGeorgia Department of Transportation an option to acquire the following described real
estate:
Right of Way and/or Easement rights through that tract or parcel of land located In Land Lot 847 of the 2nd
District, 2nd Section of nty, Georgia, and being more particularly described on Exhlbit "A"
attached hereto and m a pa hereof by reference.
$40,500.00
For the sum of JP the undersigned agrees to execute and deliver to City of Milton/Georgia Department of
Transportation fee simple title and easements to the lands owned by the undersigned as reflected on the attached
Exhibit "A"
A tr ii * A * * * * i * * * * * k * * i
The following conditions are imposed upon the grant of this option:
1) This option shall extend for 9R days from this date.
2) The considwaflon recited is full payment forthe rights conveyed.
0.359 Acres of Right of Way
Linear Feet of Limited Access
0.323 Acres of Construction and Maintenance Easement
l Square Feet of Construction Easement
' 3) This agreement Includes the purchase of remainder right (.018 acres) which the Beilsouth Ulililies are located,
a) All Temporary Easements will terminate upon completion and acceptance of the same by the Department of
(ransportalion.
5) The undersigned shall obtain all quit claim deeds or releases from any tenant now In possession and any
other parties having a claim or interest in the property described above.
6) Special Provisions, 4 any, are listed on Exhibit "8% which is attached hereto and Incorporated herein by
reference.
Witness my hand and seat this LS day of
Signed, Seated and Delivered
if) the presence of: (Seat)
W � "°A�'4
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City of Milton
13000 Deerfield Parkway, Milton, Georgia 30004
1
To: Honorable Mayor and City Council Members
From: Jim Cregge, Interim Director of Parks and Recreation
Date: Submitted on October 31, 2012 for the November 19, 2012 Regular Council
Meeting
Agenda Item: Approval of a Professional Services Agreement between the City of Milton and
Owens Environmental Design, LLC for Conceptual Design of Deerfield Park
____________________________________________________________________________
Department Recommendation:
Staff is recommending approval of the professional services agreement with Owens
Environmental Design, LLC.
Executive Summary:
The Deerfield Park is currently an undeveloped parcel of land. This request for funding is to
create an initial design that can be used to explore options and seek public and council input.
The goal is to establish a design that can be priced and budgeted for development.
Funding and Fiscal Impact:
Funding for this project is available in the capital Parks and Trail Expansion fund.
Alternatives:
A design is required in order to move forward. Therefore, the only alternative is to seek a
different designer. Options include other professional agencies or seeking a volunteer effort
from a local college.
Legal Review:
Jarrard & Davis, LLP – Paul Higbee 10/29/2012
Concurrent Review:
Chris Lagerbloom, City Manager
Attachment(s):
1. Agreement
I1
rc-,ity of Milton
A5
PROFESSIONAL SERVICES AGREEMENT — SHORT FORM
AGREEMENTS $10,000.00 OR LESS
DEERFIELD PARK DESIGN
This Professional Services Agreement (the "Agreement") is made and entered into this day of
, 201_, by and between the CITY OF MILTON, GEORGIA (hereinafter referred to as
the "City"), and Owens Environmental Design (hereinafter referred to as the "Consultant").
WITNESSETH THAT:
WHEREAS, the City desires to employ a Consultant to perform the services described herein (the
"Work"); and
WHEREAS, Consultant has familiarized itself with the Contract Documents, as defined below, the Work,
and with all local conditions and applicable federal, state and local laws, ordinances, rules and regulations.
NOW THEREFORE, the City and Consultant, in consideration of the mutual promises contained herein
and other good and valuable consideration, the sufficiency of which is hereby acknowledged, agree as
follows:
Section 1. Contract Documents: This Agreement and the following named Exhibits, attached hereto
and incorporated herein by reference, constitute the "Contract Documents":
EXHIBIT A WORK DESCRIPTION
EXHIBIT B INSURANCE CERTIFICATE
EXHIBIT C CONSULTANT AFFIDAVIT AND AGREEMENT
EXHIBIT D SUBCONTRACTOR. AFFIDAVIT
EXHIBIT E SAVE AFFIDAVIT
To the extent that there may be any conflict among the Contract Documents, the provision operating most
to the benefit of the City shall govern.
Section 2. The Work: Consultant shall provide all Work described in the Contract Documents.
Unless otherwise stated in the Contract Documents, the Work shall include Consultant's provision of
materials, labor, expenses, and any other cost or item necessary to complete the Work, which is generally
described For the Work, the Basic Services would include:
1. 2 design concepts for your review for City input and selection of a preferred design.
2. Layout Plan for feature placement, including pathways, furnishings and related features with
locations as required by your program, planting plan with quantities and locations, and grading
plan as required. The plan will be presented to the Design Review Board as required.
3. The planting will be selected to reflect the City's desire to create a recognized wildlife habitat.
Section 3. Contract Time: Consultant understands that time is of the essence of this Agreement and
warrants that it will perform the Work in a prompt manner, which shall not impose delays on the progress
of the Work. It shall commence Work pursuant to this Agreement on or before a date to be specified on a
written "Notice to Proceed" from the City and shall fully complete the Work within 60 days of the
"Notice to Proceed".
Page 1 of 5
Section 4. Work Changes: Any changes to the Work requiring an increase in the Contract Price, as
defined below, shall require a written change order executed by the City in accordance with its purchasing
regulations.
Section 5. Compensation and Method of Pa meant: City agrees to pay Consultant for the services
performed and costs incurred by Consultant upon the City's certification that the services were actually
performed and costs actually incurred in accordance with this Agreement. Compensation for services
performed and, if applicable, reimbursement for costs incurred shall be paid to Consultant upon the City's
receipt and approval of an invoice, submitted upon completion of the Work, setting forth in detail the
services performed and costs incurred. Invoices shall reflect charges incurred versus charges budgeted.
The total amount paid under this Agreement for the Work shall not, in any case, exceed $4,850.00 (the
"Contract Price"), except as outlined in Section 4 above. Consultant shall take no calculated risk in the
performance of the Work. Specifically, Consultant agrees that in the event it cannot perform the Work
within the budgetary limitations established without disregarding sound principles of Consultant's
industry, Consultant will give written notice thereof immediately to the City.
Section G. Covenants of Consultant
A. Assignment_ of Agreement: Consultant covenants and agrees not to assign or transfer any interest
in, nor delegate any duties of this Agreement, without the prior express written consent of the
City.
B. Responsibility of Consultant and Indemnification of City: Consultant covenants and agrees to
take and assume all responsibility for the services rendered in connection with the Work.
Consultant shall bear all losses and damages directly resulting to it on account of the negligent
performance or character of the services rendered pursuant to this Agreement. Consultant shall
defend, indemnify and hold harmless the City, its officers, boards, commissions, elected and
appointed officials, employees and agents from and against any and all claims, suits, actions,
liability, judgments, damages, losses, and expenses, including but not limited to, reasonable
attorney's fees, which are the result of willful or negligent acts, or tortious conduct to the extent
arising out of the negligent performance of contracted services, or operations by Consultant, any
sub -consultant, anyone directly employed by Consultant or sub -consultant or anyone for whose
negligent acts Consultant or sub -consultant may be liable, regardless of whether or not the
negligent act is caused in part by a party indemnified hereunder. Consultant shall not be required
to indemnify the City or its officers, boards, commissions, elected or appointed officials,
employees or agents against liability or claims for damages, losses, or expenses, including
attorney fees, arising out of bodily injury to persons, death, or damage to property caused by or
resulting from the sole negligence of the City or its officers, boards, commissions, elected or
appointed officials, employees or agents.
C. IndeMr►_dent Consultant: Consultant hereby covenants and declares that it is engaged in an
independent business and agrees to perform the Work as an independent Consultant, not as agent
or employee of City. Inasmuch as City and Consultant are parties independent of one another,
neither has the authority to bind the other to any third person or otherwise to act in any way as
the representative of the other, unless otherwise expressly agreed to in writing by both parties.
Consultant agrees not to represent itself as City's agent for any purpose to any party or to allow
any employee to do so, unless specifically authorized, in advance and in writing, and then only
for the limited purpose stated in such authorization. Consultant shall assume full liability for any
contracts or agreements Consultant enters into on behalf of City without the express knowledge
and prior written consent of City.
Page 2 of 5
D. Insurance: Consultant shall have and maintain in full force and effect for the duration of this
Agreement, insurance approved by the City as shown on Exhibit B.
E. Licenses. Certifications and Permits: Consultant covenants and declares that it has obtained and
will maintain all diplomas, certificates, licenses, permits or the like required by any national,
state, regional, City, and local boards, agencies, commissions, committees or other regulatory
bodies to perform the Work. Consultant shall comply with applicable legal requirements and
meet the standard of quality ordinarily expected of its industry.
F. Ownership of Work: All reports, drawings, specifications, and other items prepared or in the
process of being prepared for the Work by Consultant ("materials") shall be the property of the
City and the City shall be entitled to full access and copies of all materials. All copyrightable
subject matter in all materials is hereby assigned to the City and Consultant agrees to execute
any additional documents necessary to evidence such assignment.
G. Consultant's Representative: Richard E. Owens shall be authorized to act on Consultant's behalf
with respect to the Work as Consultant's designated representative.
H. Confidentiality: Consultant acknowledges that it may receive confidential information of the
City and that it will protect the confidentiality of any such confidential information and will
require any of its sub -consultants, consultants, and/or staff to likewise protect such confidential
information.
I. Meetings: Consultant shall meet with City's personnel or designated representatives to resolve
technical or contractual problems that may occur during the term of the contract, at no additional
cost to City.
Section 7. Standard of Care: In providing services under this Agreement, the Consultant shall
perform in a manner consistent with that degree of care and skill ordinarily exercised by members of the
same profession currently practicing under similar circumstances at the same time and in the same or
similar locality.
Section S. Termination: The City may terminate this Agreement for convenience at any time upon
written notice to Consultant. Provided that no damages are due to the City for Consultant's breach of this
Agreement, the City shall pay Consultant for Work performed to date in accordance with Section 5 herein.
Section 9. Miscellaneous
A. Governing Law. This Agreement shall be governed by the laws of the State of Georgia.
B. Counterparts. This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, but all of which together shall constitute one and the same
instrument.
C. Sovereigp Immunily. Nothing contained in this Agreement shall be construed to be a waiver of the City's
sovereign immunity or any individual's qualified good faith or official immunities.
D. E -Verify Affidavits. It is the policy of the City of Milton that unauthorized aliens shall not be employed
to perform work on City contracts involving the physical performance of services. Therefore, the City
shall not enter into a contract for the physical performance of services within the State of Georgia, unless
the Consultant shall provide evidence on City -provided forms, attached hereto as Exhibit "C" and "D",
Page 3 of 5
that it and Consultant's subcontractors have within the previous twelve (12) month period conducted a
verification of the social security numbers of all employees who will perform work on the City contract
to ensure that no unauthorized aliens will be employed. The City Manager or his/her designee shall be
authorized to conduct an inspection of the Consultant's and Consultant's subcontractors' verification
process to determine that the verification was correct and complete. The Consultant and Consultant's
subcontractors shall retain all documents and records of its verification process for a period of three (3)
years following completion of the contract. This requirement shall apply to all contracts for the physical
performance of services where more than three (3) persons are employed on the City contract.
The City Manager or his/her designee shall further be authorized to conduct periodic inspections to
ensure that no City Consultant or Consultant's subcontractors employ unauthorized aliens on City
contracts. By entering into a contract with the City, the Consultant and Consultant's subcontractors agree
to cooperate with any such investigation by making its records and personnel available upon reasonable
notice for inspection and questioning. Where a Consultant or Consultant's subcontractors are found to
have employed an unauthorized alien, the City Manager or his/her designee may order the Consultant to
terminate or require its subcontractor to terminate that person's employment immediately and to report
same to the Department of Homeland Security. The Consultant's failure to terminate the employee, or
otherwise cooperate with the investigation may be sanctioned by termination of the contract, and the
Consultant shall be liable for all damages and delays occasioned by the City thereby.
Compliance with the requirements of O.C.G.A. § 13-10-91 and Rule 300-10-1-.02 is mandatory.
Consultant agrees that, in the event the Consultant employs or contracts with any subcontractor(s) in
connection with this Agreement, the Consultant will secure from the subcontractor(s) such
subcontractors') indication of the above employee -number category that is applicable to the
subcontractor.
Consultant's compliance with the requirements of O.C.G.A. § 13-10-91 and Rule 300-10-1-.02 shall be
attested by the execution of the contractor's affidavit attached as Exhibit "C."
The above requirements shall be in addition to the requirements of State and federal law, and shall be
construed to be in conformity with those laws..
E. SAVE Affidavit and Secure Verifiable Document. Pursuant to O.C.G.A. § 50-36-1, the City must obtain
a SAVE Affidavit and a secure and verifiable document evidencing the Consultant's legal status in the
Country each time that Consultant obtains a public benefit, including any contract, from the City.
Consultant hereby verifies that it has, prior to executing this Agreement, executed a SAVE Affidavit (to
be sworn under oath under criminal penalty of false swearing pursuant to O.C.G.A. § 16-10-71), a form
of which is attached hereto as Exhibit "E", and submitted such affidavit to the City in person,
electronically, or by mail. /Further, Consultant verifies that it has, prior to executing this Agreement,
submitted a secure and verifiable document, evidencing the Consultant's legal status, to the City either in
person or electronically (in compliance with the Uniform Electronic Transactions Act). Consultant
verifies that it is in compliance with the Residency Status of an Applicant for Public Benefit, as required
by the Georgia Security and Immigration Compliance Act (O.C.G.A. § 50-36-1).
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed under seal as of the date first
above written.
(SIGNATURES ON THE FOLLOWING PAGE]
Page 4 of 5
Owens Environmental Design
Si nature:Printed Name:d e �lr 41";: 9 1 -
.;C!�
--
Title: vee a b � eF"l
[AFFIX CORPORATE SEAL]
CITY OF MILTON, GEORGIA
Joe Lockwood, Mayor
Page 5 of 5
Exhibit "A"
Work Description
Basic Scope of Services:
Consultant will provide professional site planning, civil engineering, landscape architecture, and
site work construction observation services for the City of Milton Park located at the intersection
of Deerfield Parkway and Webb Road. Consultant will prepare site work construction drawings,
along with the required storm water management plan (hydrology analysis and water quality best
management practices) and related details (Required if proposed disturbance or impervious area
exceeds 5,000 sf).
Client will provide Consultant with a current and accurate ground run (two [2] foot contour
interval) topographic and boundary survey (stamped reproducible) and .DWG digital CAD file of
survey. Said survey shall include City of Milton requirements for setbacks, zoning, buffers,
surrounding land use and zonings, and GIS benchmark reference.
Consultant will coordinate and incorporate base data as required to convert the electronic form of
the survey into a format that is best utilized by the software capabilities of Consultant in order to
complete the remaining tasks associated with this project.
Consultant will perform project research with the local governing authority and review project
scope with local officials. Findings will be incorporated into the preliminary site plan. Consultant
will attend appropriate design review and development meetings with the Client during the course
of the project. Consultant will prepare preliminary site plans for Client's review and approval.
Approval of preliminary drawings with any associated redline comments is required prior to
commencement of construction documents.
Client will handle bidding, negotiation and preparation of contracts in its entirety. Client will be
responsible for the preparation of the Construction Contract documents. Consultant shall assist the
Client in completing the preparation of Addenda, as required.
Refer to services excluded from basic scope. The basic scope of services for this project includes
the following tasks:
Task N. Concept Design
a. Consultant will prepare 2 concept designs for the layout of all furniture, fixtures, sidewalks,
pathways and other features as may be required by the city.
b. Consultant will prepare all necessary documents for submittal to the City of Milton Design
Review Board (DRB). Consultant shall attend and present the findings of the conceptual plan
to the DRB. All comments received from the DRB and approved by the city shall be
incorporated into the final approved concept plan.
Task #2. Site WorklLandscape Construction Drawings
Consultant will prepare construction drawings for site work and landscape related items based on
the approved concept design. These drawings may be combined as determined by Consultant.
These site work construction drawings will consist of:
a. Demolition and Removal Plan addressing existing improvements that need removal,
replacement or adjustment for new construction.
b. Staking/Layout Plan that will include layout of sidewalks, pathways, furnishings and related
features required Americans with Disabilities Act (ADA) parking/access and related site
improvements. ADA access from accessible parking to the park facilities will be reflected per
ADA requirements.
c. Site Grading/Drainage Plan that will include proposed grading for the site improvements,
existing and proposed contours, spot elevations, storm drainage system, water quality system,
and general notes. ADA access route between accessible parking and primary building
entrance will be graded per ADA requirements. Storrnwater plan shall include all plan and
profile information necessary for construction.
d. Erosion, Sedimentation, and Pollution Control Plan that will include Georgia Soil and Water
Conservation Commission required checklist information. Said plan will be three phased and
will reflect NPDES requirements for sites greater than one acre of disturbed area.
e. Site Utility Plans that will include plan and profile and related details for sanitary sewer, fire
and domestic water service.
f. Site work construction details for related site improvements.
g. Tree Protection/Replacement Plan that conforms to local issuing authority tree
protection/replacement requirements. Said plan will include required calculations and
necessary details.
h. Landscape and irrigation plans, including quantities.
Task #3: General NPDES Permit No. GAR 100001 Requirements (Only required if land
disturbance is more than 1 acre)
Task is deleted as the land disturbance will be far less than one acre.
Task #4. Land Disturbance and Water/Sanitary Sewer Permit Submittal
a. Consultant will meet with local issuing authority to review the project and research necessary
information to be placed on the plans in order to submit for a Land Disturbance/Development
Permit (LDP). Consultant will handle site work design submittals to local issuing authority
and obtain comments. Consultant will revise plans to address local issuing authority
comments, and will resubmit plans. Consultant makes no guarantees to secure LDP, as this is
outside of Consultant control. All required fees will be paid by Client.
b. Consultant shall submit sufficient information to Fulton County to obtain a water connection
and sanitary sewer connection permit.
Task #b. Technical Site Work Specifications
Consultant will prepare technical site work specifications for related site work in accordance with
the Client's format.
Task #7. Construction Administration/Observations
Consultant will perform construction administration services regarding the site work, including
phone and fax communications with the Client and Contractor. Consultant will review shop -
drawing and product submittals for general conformance with the intent of construction
documents. Consultant will make site visits (observations) appropriate to the stage, progress, and
quality of the work. These site visits include a pre -construction meeting, three (3) normal
construction observation site visits, a substantial completion inspection, and a final inspection.
Consultant will make written reports, as necessary, for site observation visits and will make
recommendations relative to the progress of the work. This proposal includes a maximum of
twelve (6) visits. Should additional site observations be required, they will be invoiced as
indicated below. Consultant will assist the Client in the preparation of Change Orders relating to
site construction items, if required.
The Client acknowledges that the Contractor is responsible for the construction of the project and
that Consultant is not responsible for the acts or omissions of any Contractor, subcontractor or
material supplier; for safety precautions, programs or enforcement; or for construction means,
methods, techniques, sequences, and procedures employed by the Contractor.
Reimbursable Expenses:
All printing to convey the design concept for site improvement to the Client will be provided by
Consultant. Mass reproduction, mounting, courier service, overnight delivery, long distance phone
calls, mileage, and photographs will be billed as direct Reimbursable Expenses. Reimbursable
expenses shall only be paid as directed expenses, without mark-up, and shall be included in the
monthly billing with all appropriate back-up information. Reimbursable expenses shall not exceed
the allowance provided in this contract without prior written authorization from the city.
Exhibit "B"
Insurance Certificate
Minimum Limits of Insurance:
Consultant shall maintain limits no less than:
(a) Comprehensive General Liability of $1,000,000 combined single limit per occurrence for
bodily and personal injury, sickness, disease or death, injury to or destruction of property,
including loss of use resulting there from.
(b) Comprehensive Automobile Liability (owned, non -owned, hired) of $1,000,000 combined
single limit per occurrence for bodily and personal injury, sickness, disease or death, injury
to or destruction of property, including loss of use resulting there from.
(c) Professional Liability of $1,000,000 limit for claims arising out of professional services
caused by the Consultant's errors, omissions, or negligent acts.
(d) Workers' Compensation limits as required by the State of Georgia and employers Liability
limits of $1,000,000 per accident.
City as Additional Insured and Loss Payee:_
The City shall be named as an additional insured and loss payee on all policies required by this
Agreement.
STATE OF GEORGIA
CITY OF MILTON
EXHIBIT "C"
CONSULTANT AFFIDAVIT AND AGREEMENT
By executing this affidavit, the undersigned contractor verifies its compliance with O.C.G.A. § 13-10-91,
stating affirmatively that the individual, firm, or corporation which is contracting with the City of Milton
has registered with and is participating in a federal work authorization program, in accordance with the
applicability provisions and deadlines established in O.C.G.A_ § 13-10-91.
The undersigned further agrees that, should it employ or contract with any subcontractor(s) in connection
with the physical performance of services pursuant to this contract with the City of Milton, contractor will
secure from such subcontractor(s) similar verification of compliance with O.C.G.A. § 13-10-91 on the
Subcontractor Affidavit provided in Rule 300-10-01-.08 in the form provided by the City. Consultant
further agrees to maintain records of such compliance and provide a copy of each such verification to the
City of Milton at the time the subcontractor(s) is retained to perform such service.
X51110
EEV / Basic Pilot Program User Identification Number
BY: Authorized Ci icer or Agent Date
Richard E. Owens
Title of Authorized cer r Agent of Contractor
Printed Name of Authorized Officer or Agent
SUBSCRIBED AND SWORN
BWORE ME ON THIS
201a ---1Z DAY OF , 201�
ublic
My Commission Expires.
_6/
Brenda W Robarts
N01AW PURUC
Forsyth County
State of Georgia
MY Comm, Exp. 12/01/2012
STATE OF GEORGIA
CITY OF MILTON
EXHIBIT "E"
SAVE AFFIDAVIT
By executing this affidavit wader oath, and as an applicant for a public benefit, as referenced in
O.C.G.A. § 50-36-1, from the City of Milton, the undersigned applicant verifies one of the following with
respect to my application for a public benefit:
1) X I am a United States citizen.
2) 1 am a legal permanent resident of the United States.
3) I am a qualified alien or non-immigrant under the Federal Immigration and Nationality Act
with an alien number issued by the Department of Homeland Security or other federal
immigration agency.
My alien number issued by the Department of Homeland Security or other federal
immigration agency is:
The undersigned applicant also hereby verifies that he or she is 18 years of age or older and has provided
at least one secure and verifiable document, as required by O.C.G.A.
§ 50-36-1(e)(1), with this affidavit.
The secure and verifiable document provided with this affidavit can best be classified as:
In making the above representation under oath, I understand that any person who knowingly and willfully
makes a false, fictitious, or fraudulent statement or representation in an affidavit shall be guilty of a
violation of O.C.G.A. § 16-10-20, and face criminal penalties as allowed by such criminal statute.
Executed in t 1240 r (city), State).
si4nature of A p ;icant
-/;-Agt4 f,
Printed Name of Applicant
SUBSCRIBED AND SWORN
BEFORE ME ON THIS. THE
PAY OF 20
L
No RY PLUBLIC
My Corr*Ma t&t spires:
r
Now PUBLIC, 7 U
County
State of CeV&
My Comm. Exp. 12/0112012
COPY OF
PERSONAL
SECURE AND
VERIFIABLE
DOCUMENTS
HELD IN
CITY CLERK'S
OFFIC
E
City of Milton
13000 Deerfield Parkway, Milton, Georgia 30004
1
To: Honorable Mayor and City Council Members
From: Sam Trager, Director of Human Resources
Date: Submitted on November 5, 2012 for the November 19, 2012 Regular Council
Meeting
Agenda Item: Approval of a Contract between the City of Milton and Families First, Inc. to
Provide Employee Assistance Program (EAP) Services to City Employees and
their Families.
____________________________________________________________________________
Department Recommendation:
Approve the attached contract for services with Families First.
Executive Summary:
Families First EAP provides free confidential counseling to employees and their immediate
family members for personal or emotional problems. EAP services include short-term
counseling, preventive education and referral services to assist employees in resolving personal
problems before the workplace becomes disrupted and careers are jeopardized.
In addition, Families First offers training and consultation with supervisors to help them
recognize when an employee may need referral to the EAP.
Our specific contract will allow employees and their families 4 counseling visits and access to a
24/7 crisis hotline. Additionally, the EAP provides for work-life referrals, financial referrals and
legal services. Families First will also provide initial orientation and training.
Funding and Fiscal Impact:
Funding has been included in this year’s annual budget.
Alternatives:
Continue with the current EAP program. Our current program is a concierge EAP that is not
local, difficult to reach and not responsive to our needs. Families First was selected based on
responsiveness, services, experience with local government and their ability to work more
closely with management.
Legal Review:
Paul Higbee, Jarrard & Davis - October 9, 2012
Concurrent Review
Chris Lagerbloom, City Manager
A
"S'KFamilies First
Employee Assistance Program (EAP) Services Contract Between
Families First, Inc.
AND
City of Milton, Georgia
This Contract is made and entered into by and between Families First, Inc. ("Families First"), 1105
West Peachtree Street NE, Atlanta GA 30309, and City of Milton, Georgia ("Client Company"),
13000 Deerfield Parkway, Ste. 107. Milton, GA 30004. This Contract outlines Employee
Assistance Program (EAP) services that Families First will provide to Client Company for the
contract period from December 1, 2012 to September 30th, 2013. Both parties acknowledge
that Families First is an independent EAP provider, and its employees, agents and counselors
are not to be construed as employees of the Client Company.
Any other agreement, representation, or understandings, verbal or otherwise, relating to Families
First's EAP services is hereby deemed to be null and void and of no force and effect whatsoever.
General Terms
Compliance with Laws
This Contract shall be governed by, construed and applied in accordance with the laws of the State of
Georgia. Each party represents and warrants that it currently maintains and shall maintain
throughout the term of this Contract, all licenses and permits required by applicable law and
shall comply with all applicable laws, regulations, and professional standards.
Nonexclusive
The parties agree and acknowledge that neither party will be the exclusive provider of the
services to the other as described herein and that either party may contract with other parties
to provide such services.
Services and Fees
Families First agrees to provide the EAP Services outlined in Attachment "A," attached hereto
and incorporated herein by reference, to Client Company for the noted fees. Counseling
services will be provided by masters -level, state -licensed social workers, marriage and family
therapists and/or professional counselors. Families First accepts the relationship of trust and
confidence established between it and Client Company, recognizing that the Client Company's
intention and purpose in entering into this Contract is to engage an entity with the requisite
Revised: October 31, 2012 1
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, v. 9
e �
A Families First
capacity, experience, and professional skill and judgment to provide the services in pursuit of
the timely and competent completion of the work undertaken by Families First under this
Contract. Families First covenants and declares that it has obtained all diplomas, certificates,
licenses, permits or the like required of Client Company by any and all national, state, regional,
county, local boards, agencies, commissions, committees or other regulatory bodies in order to
perform the services contracted for under this Contract. All work performed by Families First
under this Contract shall be in accordance with applicable legal requirements and shall meet
the standard of quality ordinarily expected of competent professionals.
Services beyond the Scope of Contract
If additional services are required for an individual employee and/or the Client Company
beyond the authorized sessions and/or services, Families First can offer services on a fee-for-
service basis.
Invoicing and Payment
Families First will invoice Client Company thirty (30) days prior to the date for payment. Fees
are to be paid by Client Company to Families First within that 30 day period. Payment should be
sent to Families First, 1105 West Peachtree Street, NE, Atlanta, GA 30309, ATTN: Business
Office. Inquiries about invoicing and payment should be directed to your EAP Account Manager
at 404-853-2846, or fcooper-richardson@familiesfirst.org.
Client Company employees ("Employees") can refer themselves or be referred by their Client
Company Supervisor or Manager for EAP services by calling 404-853-2823; or when outside the
Atlanta area, 800-854-2801.
Confidentiality and Utilization
The parties acknowledge that they and their respective employees, agents, or representatives
may, during the term of this Contract, be exposed to or acquire information that is proprietary
to or confidential to the parties or its affiliated companies, employees, agents or clients. The
parties will hold such information in strict confidence and represent and warrant that their
respective employees, agents, or representative will hold such information in strict confidence
and not disclose such information to third parties or use such information for any purposes
whatsoever other than the fulfillment of the parties' obligations under this Contract. To this
end, the parties will advise each of their respective employees, agents, and representatives to
keep such information confidential. The parties may enforce the provisions of this Contract by
all legal and equitable remedies available to the parties, including specific performance and
Revised: October 31, 2012 2
14A
,$
Families First
injunction. Compliance by the City of Milton, Georgia with the Georgia Open Records Act shall
not constitute a violation of this Contract.
The parties agree to comply with the applicable provisions of the Administrative Simplification
section of the Health Insurance Portability and Accountability Act of 1996, as codified at 42
U.S.C. § 1320d through d-8 ("HIPAA"), and the requirements of any regulations promulgated
there under including without limitation the federal privacy regulations as contained in 45 CFR
Part 164 (the "Federal Privacy Regulations"), the federal security standards as contained in 45
CFR Part 142 (the "Federal Security Regulations"), and any other applicable federal or state laws
and regulations.
Families First adheres to the privacy and security rules outlined in the federal Health Insurance
Portability and Accountability Act (HIPAA) Act of 1996.
Individual Self -Referrals — Families First will not inform Client Company of Employees who refer
themselves for Families First's EAP services, unless authorized in writing by the Employee.
Supervisory Referrals — Families First will accept referrals of Employees from Client Company
Supervisors and Managers. The Employee must consent and authorize Families First/EAP
Counselor to communicate with the Supervisor, Manager and/or Client Company by signing a
Release of Information (ROI) before any information, including whether the employee attended
sessions, is shared with the Client Company or the Company's representative. When such
consent is obtained, a report will be sent to Client Company's designated contact, noting the
number of sessions, any recommendations, and the disposition of the employee's case.
Employee service needs beyond agreed-upon contacts - If additional counseling is necessary
beyond the authorized number of sessions, or if clients need long-term treatment, employees
will be referred to an appropriate health care professional or facility within the insurance
network when possible.
Independent Contractors
It is mutually understood by the parties that Client Company and Families First, in performing
their respective duties and obligations under this Contract, are at all times acting and
performing as independent contractors with respect to each other, and nothing in this Contract
is intended, and nothing in this Contract shall be construed to create an employer/employee,
partnership or joint venture relationship between the parties. Neither party shall have the
authority to act on behalf of the other party, except as otherwise provided herein.
Revised: October 31, 2012 3
o%b ho; i d
e;
e
Families First
Changes in the Contract
Families First will notify Client Company in writing of any proposed changes in the terms,
conditions or pricing not less than sixty (60) days prior to the proposed change in the contract.
Similarly, Client Company must inform Families First in writing of any proposed changes in the
terms, conditions or pricing not less than sixty (60) days prior to the proposed change in the
contract.
Renewals and Non -Binding Agreement
Either party must provide a minimum of 60 days written notice to the other party prior to the
expiration date of the contract about desire to renew and/or terminate the contract.
Either party can terminate the Contract for convenience at any time with at least 60 days notice
in writing.
Sixty days notice begins from the date that the notice is signed as received by either party.
Insurance
Families First warrants that it maintains Commercial General Liability and Professional Liability
Insurance with an insurance company licensed to do business in the State of Georgia with a
minimum limit of liability of one million dollars ($1,000,000) per occurrence and three million
dollars ($3,000,000) in the aggregate per year. Families First's insurance policy provides
coverage for EAP services to be provided under this Contract.
Indemnification
Both Parties (Families First and Client Company) agree, to the extent, if any, allowed by law, to
indemnify and hold one another, including their respective officers, directors, employees and
agents, harmless with respect to any and all liability, legal actions, claims, loss, damage and all
expenses and costs associated therewith, including, without limitation, attorneys' fees and
court costs (collectively, "Losses") imposed upon, asserted against or incurred by either party
arising from any act or omission of the indemnifying party in the provision of services described
in this Contract.
In addition, Client Company hereby agrees, to the extent, if any, allowed by law, to defend,
indemnify and hold Families First harmless with respect to any and all Losses imposed upon,
asserted against or incurred by Families First resulting from the Client Company's efforts to
assist any of its employees as contemplated by this Contract, including, without limitation, the
Revised: October 31, 2012 4
a
e��B9 �
Families First
Client Company's utilization of consultation and other activities and/or the Client Company's
failure to refer employees to Families First EAP.
Both parties have no duty to indemnify one another with respect to Losses resulting, in whole
or in part, from either party's negligence or willful or reckless misconduct.
Notices
Any notice permitted or required by this Contract will be considered made on the date
personally delivered in writing or mailed by to the other party at the addresses set forth herein
or to such other person or address as either party may designate in writing.
Revised: October 31, 2012 5
Attachment A — Summary of EAP Services
To be completed by Client Company:
Client Company: CitV of Milton, Georgia # of Employees: 140
Fiscal Year: 2012-2013
Contract Term: —X _ 1 year 18 months Multi -Year
Period Covering: _October 1, 2012 to September 30, 2013
Package: X_ Basic Premium Fee for Service
Payment Schedule: _ Monthly _Quarterly X_ Annually
To be completed by Families First:
Amount: $_4,046.00 Per Employee/ Year: $_28.90 Per Family/ Month: $_2.41_
EAP Service
Basic
Description
(125.150 employees)
4 Sessions
Face -to -Face Counseling provided by Master -level, state -
Counseling
licensed LCSWs, LPCs, LMFTs)
Yes
24/7 Hour Crisis Hotline
Yes
Coming - Managers - Newsletter
EAP Promotion
Yes
Employees - Monthly Email Message
Work -Life Referrals
6
Elder Care, Child Care, Pet Care referals includes pre-
screening of services
Mortgage Counseling, Debt Counseling, College Fund, Tax
Financial Referrals
2
Preparation, Credit Score, Financial Coaching, Retirement
Planning
Legal Services
5
General Inquiries, Will Preparation, Identification Fraud/
Theft
1
Orientations/Year - Employee
1
Benefit Fairs (Half -Day)
Management
Unlimited
Orientation - Supervisor
1
Supervisory Consultations (On-site)
1
Training - (Substance Abuse, Sexual Harassment, CPR,
6
Crisis Management
1
etc.)
(On -Site Counseling for Groups/ Individuals, e.g., Grief)
$200/ hour
Crisis Intervention Support De -briefing (CISD) - Post Event
Account Management/
Return on Investment
Yes
Quarterly Utilization Report
Yes
Personal Account Manager
Yes
Monthly Check-in
Per Employee/ Month
$2.41
Per Employee/ Year
Annual Contract Amount
$28.90
$4,046.00
Signature Page
By signature, both parties agree to have executed this Contract on the day and year set forth at
the beginning of the Contract.
Families First EAP Contacts:
Name: Raphael Holloway Name: Teri Lewis
Title: COO Title: Director, HFR
Phone: 404-853-2821 Phone: 404853-2819
Email: rholloway@familiesfirst.org Email: tlewis@familiesfirst.org
Name: Freya Cooper -Richardson Name: Julie Sharp
Title: EAP Account Manager Title: EAP Account Manager
Phone: 404853-2846 Phone: 404853-2846
Email: fcooper-richardson@familiesfirst.org Email: jsharp@familiesfirst.org
FOR FAMILIES FIRST, INC.
Name:
Title:
Mailing Address:
Phone
Signah
Date:
Attest:
Kim E. Anderson
Chief Executive Officer
1105 West Peachtree Street, N.E.
Deborah Baker, Secretary
[AFFIX CORPORATE SEAL]
FOR City of Milton, Georgia:
Name:
Title:
Mailing Address:
Phone Number:
Signature:
Date:
8
[End of Contract]
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City of Milton 2012 Officer of the Year
Officer Keenan Grey has been selected as Officer of the Year for the City
of Milton Police Department for 2012 as nominated by his peers and
selected by Command Staff, and
Officer Keenan Grey has performed his duties as an Officer in a faithful
and loyal manner by exhibiting his dedication to preserving the rights and
security of all Milton citizens; and
WHEREAS, Officer Keenan Grey has worked beyond expectations putting in
numerous days and hours above and beyond the requirements of his
assignment; and
WHEREAS, Officer Keenan Grey has demonstrated a strong work ethic as
demonstrated in his willingness to go above and beyond his daily duties to
bring cases to a resolution; and
WHEREAS, Officer Keenan Grey displays a professional and commendable demeanor
with citizens and victims and is an outstanding example to other officers
and supervisors;
Now, therefore, I Mayor of the City of Milton, Milton City Council, and citizens of the City of
Milton formally recognize Officer Keenan Grey for his outstanding performance as a member of
the Milton Police Department; and
I further call that the City of Milton hereby recognizes the achievements of Officer Keenan
Grey and expresses pride in presenting to him the 2012 Officer of the Year award.
Given under our hand and seal of the City of Milton, Georgia on this 19th Day of
November, 2012.
Joe Lockwood, 0ayor
14
National American Indian Heritage Month
WHEREAS, the history and culture of our great nation have been significantly
influenced by American Indians and indigenous peoples; and
WHEREAS, the contributions of American Indians have enhanced the freedom,
prosperity, and greatness of America today; and
WHEREAS, their customs and traditions are respected and celebrated as part of
a rich legacy throughout the United States; and
WHEREAS, Native American Awareness Month began in 1976 and recognition
was expanded by Congress and approved by President George
Bush in August 1990, designating November as National
American Indian Heritage Month; and
WHEREAS, in honor of National American Indian Heritage Month, community
celebrations as well as numerous cultural, artistic, educational and
historical activities have been planned.
Now, therefore, we, the Mayor and City Council of the City of Milton, hereby proclaim
November 2012 as National American Indian Heritage Month in the City of Milton,
Georgia, and urge all our citizens to observe this month with appropriate programs,
ceremonies and activities.
Given under our hand and seal of the City of Milton, Georgia on this 19th day of
November 2012.
_________________________
Joe Lockwood, Mayor
Honoring Milton-based MDJunior and Shaun Verma
WHEREAS, Milton High School senior Shaun Verma founded MDJunior in 2009
with the mission of inspiring selfless service through mentorship; and
WHEREAS, the now non-profit organization fulfills this mission by connecting
medical and health care professionals with middle and high school
students who have a strong desire to reach their full potential; and
WHEREAS, students in the program work together to bring healthcare professionals
to school to speak about their work, then take service trips to volunteer
at healthcare organizations like Medshare, Emory Hospitals, Piedmont
Healthcare and the American Red Cross; and
WHEREAS, students took a Medical Mentor Mission to Honduras in 2012,
facilitating an understanding of poverty and service to others; and
WHEREAS, in just three years, more than 20 chapters utilizing the three pillars of
success – knowledge, skills and attitude -- have been established in
schools in the United States and Honduras, with the first college chapter
slated to open this fall at Emory and Vanderbilt Universities; and
WHEREAS, because of his work, in October during the Youth Services Institute
National Conference in Houston, Shaun received the 2012 Harris
Wofford Youth Award, given to an American teen who demonstrates
exemplary commitment and action involving his peers in service, youth
voice, service learning and civic engagement; and
WHEREAS, Shaun also received the Presidential Service Award for excellence in
community service and outstanding leadership in 2011 and 2012.
Now, therefore, we, the Mayor and City Council of the City of Milton, hereby honor
MDJunior and Shaun Verma and encourage all citizens to do the same.
Given under our hand and seal of the City of Milton, Georgia on this 19th day of
November 2012.
(Seal)
_________________________________
Joe Lockwood, Mayor
Recognizing Crabapple Crossing Elementary School’s Designation as a “Blue Ribbon
School”
WHEREAS, Crabapple Crossing Elementary was named a 2012 Blue Ribbon School
by the U.S. Department of Education, and as such was honored at a
recognition ceremony Nov. 12-13 in Washington, D.C., and;
WHEREAS, previously, CCES was a two-time winner of the Georgia School of
Excellence distinction in 2004 and 2010, and had set a goal to receive
the national honor by 2013, and;
WHEREAS, CCES was given the Blue Ribbon designation because of its status as an
Exemplary High Performing School, recognized as a place where
students perform at very high levels and where significant
improvements in achievement are being made, and;
WHEREAS, CCES is a place where teachers work together, parents are involved and
engaged in the school and their children's learning, and business
partners support many different programs at the school, and;
WHEREAS, Crabapple Crossing Elementary School was one of just 269 schools
nationwide to receive the designation in 2012, and;
WHEREAS, the faculty and families of CCES make it a special place regardless of
awards, and we are proud that this great team is located in Milton,
Georgia.
Now, therefore, we, the Mayor and City Council of the City of Milton, hereby direct and
proclaim Monday, November 19th as Crabapple Crossing Elementary School “Blue
Ribbon School Day” in the City of Milton, Georgia.
Given under our hand and seal of the City of Milton, Georgia on this 19th day of
November, 2012.
(Seal)
_________________________________
Joe Lockwood, Mayor
City of Milton
13000 Deerfield Parkway, Milton, Georgia 30004
1
To: Honorable Mayor and City Council Members
From: Cindy Eade, Sustainability Coordinator
Date: Submitted on November 8, 2012 for the November 19, 2012 Regular Council
Meeting for First Presentation and December 3, 2012 for Unfinished Business
Agenda Item: Consideration of an Ordinance Amending Chapter 46 of the Milton Code of
Ordinances Governing Solid Waste Collection Services Within the City of Milton;
Clarifying Reference to and Applicability of Infrastructure Maintenance Fee;
Providing for Assessment of Late Fees and Interest for Failure to Timely Pay
Infrastructure Maintenance Fee; Adding Reference to Hauling of Hazardous
Waste; Providing for the Issuance of a Decal to Haulers in Compliance with the
Solid Waste Collection Ordinance; Repealing Conflicting Ordinances;
Establishing an Effective Date; and Other Provisions.
________________________________________________________________
Department’s Recommendation
Re-approve the ordinance with changes approving and establishing the regulation of solid waste
collection services within the City of Milton, and direct City Staff to facilitate the contracting of
such services to providers currently in operation and those who may become in operation.
Executive Summary
The original ordinance was passed on November 21, 2006 and has been renewed each
successive year since its original enactment. The City’s authority to enter into solid waste
franchise agreements emanates from this ordinance. This ordinance needs to be re-enacted
each year in order to continue the validity of our solid waste franchise agreements. The
following companies are on the current list of approved haulers:
Commercial Haulers or Roll offs Residential Haulers
Advanced Disposal (formerly
CWS) American Disposal
1-800-Got Junk GW Lovelace
Allegiance Sanitation Custom Disposal
American Disposal Services Henry Edward Kincaid
Arrow, Inc.
Mass Services/The Dumpster
Company
M&M Waste Red Oak Sanitation
Mass Services/The Dumpster Co. Republic Services
Republic Services Waste Management
Waste Pro
Waste Management
City of Milton
13000 Deerfield Parkway, Milton, Georgia 30004
2
Hauler to be added to approved list:
Sanitation Solutions (residential)
Haulers currently operating without authority:
Grogan’s Disposal (commercial only, equestrian business mostly) Deadline Nov. 15 to be on
approved list.
Recommended changes to ordinance: (primarily administrative and procedural)
Change typo on page 1 – Establishing.
Section 46-70. addition of verbiage to clarify payment of fees: This fee is applicable to
haulers that are providing trash and recycling collection to residential accounts as well
as haulers serving commercial accounts.
Delete Section 46-3 p. 6 Collection of fees and refer to fees in Sec. 46-70 p. 13 Contract
and Rental fees.
Add collection of hazardous waste to Section 8.1.5 iii.
Dedicated Revenue – The Infrastructure Maintenance Fee collected by the City
under this ordinance shall be dedicated to the following: (i) maintenance of the
City’s streets, corridors, alleys, thoroughfares, and transportation routes; (ii)
administration of contract compliance between Customers and Companies
where service is received as provided in this Ordinance; and (iii) collection of
litter, trash and hazardous waste within the City.
Addition of Appendix A would list procedural changes.
o Institute a change providing for a late payment fee of 10% penalty (one time) and
1 ½% monthly interest.
Change the Infrastructure Fee form to include late payment fees
o Institute a new policy that involves issuing a decal for the approved haulers to be
placed in a designated location on the trucks which will serve as their 2013
permit.
This will help with compliance issues and make it easier for code
enforcement to identify rogue haulers and issue noncompliance citations.
Decals will be issued after December 2012 payments are received (Feb.
15, 2013) as well as tonnage reports for MSW and Recycling are
submitted.
Funding and Fiscal Impact
The ordinance contains the requirement for an infrastructure maintenance fee to be paid to the
City quarterly in the amount of 5% of gross revenues. This needs to also be addressed for
commercial business as the impact of trucks on the roadways is significant. According to our
estimates, there is potentially $25,000 not being collected for residential service and an
unknown amount not collected from commercial waste collection.
Alternatives
City of Milton
13000 Deerfield Parkway, Milton, Georgia 30004
3
If not re-enacted, the City would lose its authority to regulate solid waste collection within our
corporate limits and the ability to collect franchise fees for the same activity, with the
accompanying loss of revenue.
Legal Review: Ken Jarrard, Jarrard & Davis – November 13, 2012
Concurrent Review
Chris Lagerbloom, City Manager
Kathleen Field, Community Development Director
Stacey Inglis, Assistant City Manager
Attachments
Solid Waste Ordinance (Redline Version)
Solid Waste Ordinance (Clean Version)
STATE OF GEORGIA ORDINANCE NO. 11-11-117
COUNTY OF FULTON
Page 1 of 22
AN ORDINANCE REAFFIRMING AND ESTBLISHING ESTABLISHING CHAPTER 46
OF THE MILTON CODE OF ORDINACES GOVERNING SOLID WASTE COLLECTION
SERVICES WITHIN THE CITY OF MILTON; PROVIDING FOR THE SCOPE AND
NATURE OF THE OPERATION; PROVIDING FOR THE DISPOSAL OF GARBAGE,
SOLID WASTE AND REFUSE; REQUIRING THE EXECUTION BY SERVICE PROVIDERS
OF A NON-EXCLUSIVE AGREEMENT WITH THE CITY OF MILTON; PROVIDING
PROCEDURES FOR THE HANDLING OF COMPLAINTS; PROVIDING FOR AN
INFRASTRUCTURE MAINTENANCE FEE; REQUIRING INDEMNITY INSURANCE;
PROVIDING FOR REVOCATION AND AMENDMENT; PROHIBITING ASSIGNMENT
AND SUBLETTING WITHOUT CONSENT; PROVIDING FOR FORFEITURE; AND FOR
MAKING OTHER PROVISIONS.
BE IT ORDAINED by the City Council of the City of Milton, GA while in a regularly called council
meeting on December 3, at 6:00 p.m. as follows:
SECTION 1. The City of Milton (“City”) seeks to provide standards of operation, regulation,
and oversight in the providing of solid waste services within the corporate city limits;
SECTION 2. Pursuant to past iterations of this Ordinance, the City has currently recognized
currently recognizes the following companies as “Approved Haulers” in the City limits: 1-800-
GOT-JUNK, Advanced Disposal, Allegiance Sanitation, American Disposal Services, Arrow
Inc., Community Waste Services, Custom Disposal, Henry Edward Kincaid, Grogan’s Disposal,
GW Lovelace, M&M Waste, The Dumpster Company, Red Oak Sanitation, Republic Services,
Sanitation Solutions, Waste Management, and Waste Pro;
SECTION 3. The City seeks to reaffirm confirm the current “Approved Haulers” List list as
long as the companies are found to be acting consistently with the Ordinance and recognizes that
the City Council may seek to amend the Approved Haulers List as need arises and in accordance
with the established Solid Waste Ordinance;
SECTION 4. It is in the interest of the City and its citizens to offer companies currently
providing such services a non-exclusive contract on such terms and conditions that will provide
the City with the controls and options necessary to provide for the public good ; and
SECTION 5. Chapter 46 of the Milton City Code of Ordinances, the Milton Solid Waste
Ordinance, attached hereto as Exhibit A is hereby ratified, approved and affirmed, subject to
those redline modifications set forth in attached Exhibit A;
SECTION 56. Procedural changes are listed on Appendix A;
SECTION 676. All ordinances, parts of ordinances, or regulations in conflict herewith are
rejected;
SECTION 787. This Ordinance shall become effective upon its adoption;
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STATE OF GEORGIA ORDINANCE NO. 11-11-117
COUNTY OF FULTON
Page 2 of 22
ORDAINED this the 21st day of November, 2011 3rd day of December, 2012..
__________________________________
Joe Lockwood, Mayor
Attest:
___________________________
Sudie AM Gordon, City Clerk
(Seal)
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STATE OF GEORGIA ORDINANCE NO. 11-11-117
COUNTY OF FULTON
Page 3 of 22
EXHIBIT A
Chapter 46 - SOLID WASTE [46]
(46) State Law reference— Solid waste management generally, O.C.G.A. § 12-8-20 et seq.; Georgia
Comprehensive Solid Waste Management Act, O.C.G.A. § 12 -9-1; hazardous waste management,
O.C.G.A. § 12-8-79; local and regional solid waste plans, O.C.G.A. § 12 -8-31.1; tire disposal restrictions,
O.C.G.A. § 12-8-40.1; yard trimmings and disposal restrictions, O.C.G.A. § 12-8-40.2; authorization for
local government units to enforce collection of taxes, fees, or assessments for solid waste management,
O.C.G.A. § 12-8-39.3; authority of local governments to adopt and enforce local regulations for the
handling and disposal of solid waste, O.C.G.A. § 12-8-30.9; Litter Control Law, O.C.G.A. § 16-7-40;
transporting garbage or waste across state or county boundaries pursuant to contract, O.C.G.A . § 36-1-
16; Resource Recovery Development Authorities Law, O.C.G.A. § 36-63-1 et seq.; littering highways,
O.C.G.A. § 40-6-249.
ARTICLE I. - IN GENERAL
ARTICLE II. - LITTERING
ARTICLE III. - COLLECTION SERVICES
ARTICLE I. - IN GENERAL
Sec. 46-1. - Definitions.
Sec. 46-2. - Purpose.
Sec. 46-3. - Collection fees.
Sec. 46-4. - Medical waste to be disposed of according to state and federal regulations.
Secs. 46-5—46-23. - Reserved
Sec. 46-1. - Definitions.
For the purpose of this chapter, whenever inconsistent with the context, words used in the
present tense include the future tense, words in the plural include the singular, words in the
singular include the plural, and the use of any gender shall be applicable to all genders
whenever the sense requires. The words "shall" and "will" are mandatory and the word "may" is
permissive. Words not defined in this section or otherwise in this chapter shall be given their
common and ordinary meaning.
The following words, terms, phrases and their derivations shall, in this chapter, have the
meaning given in this section.
Approved container or approved bag or container or bag means those containers used in the
collection of solid waste, as defined in this chapter, which have been approved by the company
for use by both residential and commercial customers.
Area shall mean the area within the boundaries of the incorporated areas of the City of Milton,
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STATE OF GEORGIA ORDINANCE NO. 11-11-117
COUNTY OF FULTON
Page 4 of 22
as they exist as of the effective date in addition to future boundary changes as outlined in [the
term "city"].
City means the City of Milton, Georgia, an incorporated municipal government in Fulton County,
State of Georgia. Boundaries defining the city limits may be changed via ordinances approved
by the city council, for which any new boundary created shall be subject to this contract.
Commercial unit shall mean any structure, whether freestanding or designed to serve multiple
tenants, whose primary purpose is for conducting business.
Company means any organization, firm, person, entity, corporation or other business that
contracts with customers to provide for the collection and disposal of solid waste material as
defined in this article, and including but not limited to construction/demolition debris, dead
animals, garbage, waste, storm debris, yard trimmings, and recyclable material.
Construction/demolition debris shall have the meaning set forth by the Georgia Department of
Natural Resources, Environmental Protection Division (Georgia EPD Chapter 391-3-4.01(14)).
Construction site shall mean any parcel of land or real property having land disturbance,
clearing and grading, demolition, improvements and betterments, renovation, remodeling and/or
new construction work performed thereon or about the real property or premises whether or not
a land disturbance and/or building permit is required.
Customer shall mean any firm, person, entity, corporation or organization that contracts with a
company for the collection and disposal of solid waste material as defined in this chapter, and
including, but not limited to, construction/demolition debris, dead animals, garbage, waste,
storm debris, yard trimmings, and recyclable material.
Dead animals shall mean animals or portions thereof equal to or greater than ten pounds in
weight that have died from any cause, except those slaughtered or killed for human use.
Effective date means any contract executed between the city and any company on or after
December 1, 2009.
Environmental laws means all applicable laws, directives, rules, ordinances, codes, guidelines,
regulations, governmental, administrative or judicial orders or decrees or other legal
requirements of any kind, including, without limitation, common law, whether currently in
existence or hereafter promulgated, enacted, adopted or amended, relating to safety,
preservation or protection of human health and the environment (including ambient air, surface
water, groundwater, land, or subsurface strata) and/or relating to the handling, treatment,
transportation or disposal of waste, substances or materials, including, without limitation, any
matters related to releases and threatened releases of materials and substances.
Garbage shall have the meaning set forth at Georgia Department of Natural Resources,
Environmental Protection Division ("Georgia EPD Chapter 391-3-4-.01(21)).
Gross receipts shall mean the total amount collected by the company from any and all
customers for services rendered under authority of this chapter as a result of charges for
service. Gross receipts shall not include the infrastructure maintenance fee identified in this
chapter.
Hazardous materials means any pollutant, contaminant, hazardous or toxic substance,
constituent or material, including, without limitation, petroleum products and their derivatives, or
STATE OF GEORGIA ORDINANCE NO. 11-11-117
COUNTY OF FULTON
Page 5 of 22
other substances, regulated under or pursuant to any environmental laws. The term "hazardous
materials" also includes any pollutant, contaminant, hazardous or toxic substance, constituent or
material, including, without limitation, petroleum products and their derivatives, or other
substance that is, after the date first written above, deemed hazardous be any judicial or
governmental entity, body or agency having jurisdiction to make that determination.
Hazardous waste means any waste regulated under or pursuant to any environmental laws,
including, but not limited to, any solid waste which has been defined as a hazardous waste in
regulations promulgated by the Board of Natural Resources, Chapter 291-3-11. The term
"hazardous waste" also includes hazardous materials and any waste that is, after the effective
date of this agreement, deemed hazardous by any judicial or governmental entity, board, body
or agency having jurisdiction to make that determination. The term "hazardous waste" will be
construed to have the broader, more encompassing definition where a conflict exists in the
definitions employed by two or more governmental entities having concurrent or overlapping
jurisdiction over hazardous waste.
Recycling shall have the meaning set forth at Georgia Department of Natural Resources,
Environmental Protection Division ("Georgia EPD") Chapter 391-3-4-.01(57).
Residential unit shall mean any structure, whether single family, multi-family, or otherwise
whose primary purpose is for living.
Solid waste means the collection of residential and commercial nonrecyclable waste, residential
and commercial recyclable waste, and residential yard trimmings/waste.
Term shall mean a period of one year from the effective date.
Waste means all putrescible and nonputrescible solid, semi-solid, and liquid wastes, including
residential or commercial garbage, trash, refuse, paper, rubbish, ashes, manure, vegetable or
animal solid and semi-solid wastes, and other discarded solid and semi-solid wastes.
Yard trimmings shall have the meaning set forth at Georgia Department of Natural Resources,
Environmental Protection Division ("Georgia EPD") Chapter 391-3-4-.01(77).
(Ord. No. 06-11-04, § 1, 11-21-2006; Ord. No. 07-11-54, § 1, 11-15-2007; Ord. No. 08-11-30, §
1, 11-17-2008; Ord. No. 10-11-84, § 1, 11-15-2010)
Sec. 46-2. - Purpose.
This chapter regulates the collection and disposal of waste and garbage including, but not
limited to, all waste byproducts of manufacturing or commercial establishments, cinders and
ashes from commercial boilers, and cardboard and wooden boxes, crates and barrels, as well
domestic waste including meat, vegetable and fruit scraps, cans, bottles, paper, cardboard,
rags, ashes, and other such waste material ordinarily disposed from residences, churches,
schools, small business establishments, and other such places.
(1) The term "garbage" does not include animals, fowl, and fish entrails, bones and
carcasses whether in whole or in part, from business establishments such as
slaughterhouses and meat and fish markets. Such material means "other waste."
(2) The term "waste" also includes animal, fowl, and fish excrement, entrails, bones,
carcasses in whole or in part and dead animals, and any other refuse material not
otherwise classified herein.
STATE OF GEORGIA ORDINANCE NO. 11-11-117
COUNTY OF FULTON
Page 6 of 22
(Ord. No. 08-03-04, § 1(ch. 17, art. 1, § 1), 3-17-2008)
Sec. 46-3. - Collection fees.
(a) The city may levy fees against residents specifically for the disposal and collection of
waste generated in the city. Such funds shall go exclusively towards collecting and disposing of
city waste.
(b) The city accountant shall prepare recommendations to the council regarding fees to be
charged for waste disposal. The city accountant shall request proposals for the recycling of
waste and make a subsequent recommendation to the council regarding the feasibility and cost
of a recycling program.
(c) The city may levy different fees against commercial entities and residential property. The
city may also levy different fees based on size or property, number of residents, or other factors
recommended by the city accountant.
(Ord. No. 08-03-04, § 1(ch. 17, art. 1, § 3), 3-17-2008)
All fees are listed in Sec. 46-70 Contract and Rental Fees.
Sec. 46-4. - Medical waste to be disposed of according to state and federal regulations.
Hospitals and health care professionals or other entities disposing of medical waste including,
but not limited to, any device used to puncture or lacerate skin, shall be disposed of in a manner
consistent with federal and state regulations.
(Ord. No. 08-03-04, § 1(ch. 17, art. 1, § 4), 3-17-2008)
Secs. 46-5—46-23. - Reserved
ARTICLE II. - LITTERING
Sec. 46-24. - Prohibited.
Secs. 46-25—46-43. - Reserved.
Sec. 46-24. - Prohibited.
(a) Unlawful acts defined.
(1) Public littering. It shall be unlawful for any person, in person or by his or her agent,
employee, or servant, to cast, throw, sweep, sift, or deposit in any manner in or upon any
public way or other public place in the city or the river, creek, branch, public water, drain,
sewer, or receiving basin within the city's jurisdiction, any kind of leaves, dirt, rubbish,
waste article, thing, or substance whatsoever, whether liquid or solid. Nor shall any person
cast, throw, sweep, sift, or deposit any of the aforementioned items anywhere within the
city's jurisdiction in such a manner that it may be carried or deposited in whole or in part,
by the action of the sun, wind, rain, or snow, into any of the aforementioned places;
provided that this section shall not apply to:
STATE OF GEORGIA ORDINANCE NO. 11-11-117
COUNTY OF FULTON
Page 7 of 22
a. The deposit of material under a permit authorized by any city ordinance;
b. Goods, wares, or merchandise deposited upon any public way or other public
place temporarily, in the necessary course of trade, and removed therefrom within
two hours after being so deposited; or
c. Articles or things deposited in or conducted into the city sewer system through
lawful drains in accordance with the city ordinances relating thereto.
(2) Private littering. The acts described in subsection (a)(1) of this section shall also apply
to acts committed to or against private property without the consent of the owner.
(b) All business firms dispensing their product in cups, plates, wrappers, sacks, and other
similar forms of containers shall provide adequate metal or plastic containers upon the premises
for collection of refuse. It shall be the express responsibility of all such business firms to collect
all cups, plates, wrappers, sacks, and other similar forms of containers dispensed by said
business that may discarded upon the premises or neighboring street and sidewalks. It further
shall be the responsibility of said business to collect the aforementioned items from the
premises of the neighboring property when the owners of the property specifically request and
authorize the business personnel to enter upon their property for that purpose.
(c) Any person who shall violate any of the provisions of, or who fails to perform any duty
imposed by this section or who violates any order or determination of the department
promulgated pursuant to this article shall be punished as directed by law, and in addition
thereto, may be enjoined from continuing the violation. Each day a violation occurs shall
constitute a separate offense. Any willful and wanton violation of this subsection resulting in the
unlawful littering of the streets, sidewalks, and neighboring property shall be deemed a nuisance
and on conviction thereof by the city court, the mayor and city council may after a notice and a
hearing revoke the business license of the violator.
(Ord. No. 08-03-04, § 1(ch. 17, art. 1, § 5), 3-17-2008)
Secs. 46-25—46-43. - Reserved.
ARTICLE III. - COLLECTION SERVICES
DIVISION 1. - GENERALLY
DIVISION 2. - CONTRACTUAL PROVISIONS
DIVISION 3. - TERMINATION OF CONTRACT
DIVISION 4. - ADDITIONAL PROVISIONS
DIVISION 1. - GENERALLY
Secs. 46-44—46-62. - Reserved.
STATE OF GEORGIA ORDINANCE NO. 11-11-117
COUNTY OF FULTON
Page 8 of 22
Secs. 46-44—46-62. - Reserved.
DIVISION 2. - CONTRACTUAL PROVISIONS
Sec. 46-63. - Authority.
Sec. 46-64. - Grant of nonexclusive contract.
Sec. 46-65. - Term.
Sec. 46-66. - Scope and nature of operation.
Sec. 46-67. - Vehicles to be covered and identified.
Sec. 46-68. - Regulation of containers.
Sec. 46-69. - Disposal of refuse.
Sec. 46-70. - Contract and rental fees.
Sec. 46-71. - Compliance with law.
Sec. 46-72. - Insurance provided by company.
Sec. 46-73. - Indemnification and hold harmless.
Secs. 46-74—46-92. - Reserved.
Sec. 46-63. - Authority.
The city is empowered to contract with one or several third parties to collect and dispose of all
garbage, waste, commercial waste, and yard waste generated by the city. In addition, the city
may sell franchise rights in garbage collection to third parties.
(Ord. No. 08-03-04, § 1(ch. 17, art. 1, § 2), 3-17-2008)
Sec. 46-64. - Grant of nonexclusive contract.
The city shall hereby grant to companies a nonexclusive contract pursuant to the terms set forth
herein to use the public streets, alleys, roads and thoroughfares within the city for the purpose
of operating and engaging in the business of collecting and disposing of waste; including, but
not limited to, contracting with customers and providing service pursuant to contract therefore,
placing and servicing containers, operating trucks, vehicles and trailers, and such other
operations and activity as are customary and/or incidental to such business and service.
(Ord. No. 06-11-04, § 2, 11-21-2006; Ord. No. 07-11-54, § 2, 11-15-2007; Ord. No. 08-11-30, §
2, 11-17-2008; Ord. No. 10-11-84, § 2, 11-15-2010)
Sec. 46-65. - Term.
The term of any agreement shall be for a period of one year beginning on the effective date of
the contract execution and terminating on the first anniversary of said date. The company shall
begin performance under this contract immediately after the effective date of the contract
execution.
(Ord. No. 06-11-04, § 3, 11-21-2006; Ord. No. 07-11-54, § 3, 11-15-2007; Ord. No. 08-11-30, §
3, 11-17-2008; Ord. No. 10-11-84, § 3, 11-15-2010)
Editor's note— Section 3 of Ord. No. 10-11-84, adopted Nov. 15, 2010, changed the title of § 46-65 from "One
year in length" to "Term."
STATE OF GEORGIA ORDINANCE NO. 11-11-117
COUNTY OF FULTON
Page 9 of 22
Sec. 46-66. - Scope and nature of operation.
(a) Residential and commercial refuse and waste. The company may collect and deliver for
disposal all residential and commercial refuse and waste accumulated within the corporate limits
of the city by the company's customers and the words "refuse", "garbage", "trash" and "waste"
when used in this article are used for convenience and, unless the context shows otherwise,
refer to yard trimmings, recycling, storm debris, garbage, and construction/demolition debris.
The company will furnish the personnel and equipment to collect refuse, provide the services
described herein, and as contracted for with its customers, in an efficient and businesslike
manner.
(b) Service provided. Company shall provide container, bin and other collection service for the
collection of residential and commercial refuse and waste according to the individual customer
agreements and applicable city regulations and shall make provision for the special collection of
such refuse and waste upon request. The company shall cause or require its equipment,
containers and bins to be kept and maintained in a manner to not cause or create a threat to the
public health and shall keep the same in a good state of repair.
(c) Collection operation. (a) Save and except as provided in this section, collection shall not
start before 7:30 a.m. or continue after 7:30 p.m. at any location. Company may request
variances to this collection period provided that collections: (i) are made in a manner that does
not cause or result in loud noise; and (ii) that are made at a location which will not cause the
disturbance of persons occupying the premises or neighboring property must first be confirmed
prior to the request. All requests for variances of times must be submitted to the city manager,
or his designee, and include documentation on the hardship created by the collection operation
period. Should such a collection operation variance be granted and the city receives two
complaints about the collection operation in any six-month time period, the city shall verify and
substantiate the factual basis for any complaints. Should the complaints be substantiated, the
collection operation variance will be revoked. The frequency of collection shall be determined by
each individual customer agreement.
(d) Holidays. The company shall observe such holidays as it, in its sole discretion, determines
appropriate. Notification must be given by the company to it's customers of the holidays and
resulting collection cycles.
(e) All companies must maintain a local customer service telephone number while conducting
business within the city. The telephone number must be publicly listed in a phone book and
available through directory assistance. Each company providing trash receptacles, whether
commercial or residential, must mark each receptacle with the company's name and telephone
number in letters not less than four inches in height. Each company must provide a mechanism
to accept, investigate, and respond to customer complaints. Companies are strongly
encouraged to use multi-media devices including interactive websites, e-mail, fax, and
automated telephone systems. Service calls received by the city as a result of noncompany
performance will result in the consideration of revocation of a nonexclusive contract or the city's
choice to not renew an existing agreement.
(f) Any invoice, bill, statement, or other device intended to request remittance by the customer
to the company of funds for payment of service shall include at a minimum, the company's
telephone number and payment methods available to customers.
(g) All companies providing residential service or service to residential multi-family units must
provide a recycling program to all customers. This program is intended to promote recycling
STATE OF GEORGIA ORDINANCE NO. 11-11-117
COUNTY OF FULTON
Page 10 of 22
programs throughout the city by reducing the amount of waste landfilled. Commodities may be
commingled by the consumer and collected commingled by the hauler. Recycled commodities
which must be offered in all programs are as follows: brown, clear, and green glass; steel and
tin cans; aluminum cans, foil, pie pans, plastic items (#1, #2, and #3); cardboard, cereal boxes
and any nonwaxed paper containers; brown paper grocery bags; newspapers; magazines;
telephone books; junk mail; office papers; and school papers. Customers shall be charged for
the recycling program by the company regardless of utilization of the service. Haulers are to
include this service with their residential rate structure; however, the charge for recycling shall
be shown separate from other services provided.
(h) All companies providing commercial service must offer and promote a recycling program to
all customers. This program is intended to promote recycling programs throughout the city by
reducing the amount of waste landfilled.
(i) All companies providing residential service must offer the collection of yard trimmings to all
customers. This program is intended to assist in the collection and disposal of grass clippings;
leaves; pine cones and needles; twigs, limbs, and trunks of trees meeting size limitations set by
company; bushes, brush, and all other general debris generated from the maintenance of
residential yards and lawns.
(j) It shall be the company's obligation and responsibility to educate all customers on industry
trends and best practices relating to solid waste collection, removal, and disposal. Such
education programs must consist of the following elements: Recycling; holiday schedules; new
customer information; and any service related items. All companies have the obligation to inform
customers of any noncollected trash or items placed for collection by the customer but not
covered under the agreement between the customer and the company. Further, it shall be the
company's obligation and responsibility to educate customers on days of collection for each
specific service provided. All education and communication between the company and
customers should promote the placement of residential collectibles at the curb the night before
pick-up. Receptacles, containers, or bagged materials shall not be left at the curb for longer
than a 24-hour period.
(Ord. No. 06-11-04, § 4, 11-21-2006; Ord. No. 07-11-54, § 4, 11-15-2007; Ord. No. 08-11-30, §
4, 11-17-2008; Ord. No. 10-11-84, § 4, 11-15-2010)
Sec. 46-67. - Vehicles to be covered and identified.
(a) All vehicles used by company for the collection and transportation of refuse shall be
covered at all times while loaded and in transit to prevent the blowing or scattering of refuse
onto the public streets or properties adjacent thereto, and such vehicles shall be clearly marked
with the company's name and telephone number in letters not less than four inches in height.
(b) Company must provide a comprehensive and proactive driver safety education program
which encourages safety on city streets. Such program must be demonstrated and conveyed to
the city. Company must comply with all other regulatory agencies, both local, state, or otherwise
with respect to commercial vehicle operation within the city. Service calls received by the city as
a result of noncompany performance will result in the consideration of revoking a nonexclusive
contract or the city's choice to not renew an existing agreement.
(c) Company must manage collection services delivered within the city to minimize the
number of vehicles on city roads. Coordination between haulers and service providers is
strongly encouraged to manage service vehicles on residential streets and neighborhoods.
STATE OF GEORGIA ORDINANCE NO. 11-11-117
COUNTY OF FULTON
Page 11 of 22
(d) Should company utilize "scout" trucks to facilitate collection in residential areas where it is
not feasible to use standard collection vehicles, such vehicles must be covered at all times while
loaded and in transit should they exceed 30 miles per hour or be driven more than 300 yards on
a public street.
(Ord. No. 06-11-04, § 5, 11-21-2006; Ord. No. 07-11-54, § 5, 11-15-2007; Ord. No. 08-11-30, §
5, 11-17-2008; Ord. No. 10-11-84, § 5, 11-15-2010)
Sec. 46-68. - Regulation of containers.
The company may rent, lease, provide or define specifications for containers to any customer
within the corporate limits of the city for refuse storage and collection purposes subject to the
following requirements:
(1) All containers shall be constructed and maintained according to industry practice;
(2) All containers shall be equipped with stable covers to prevent blowing or scattering of
refuse while being transported for disposal of their contents;
(3) All containers, save and except those being used for the purpose of collecting and
storing rubble, building and scrap construction materials, shall be equipped with covers
suitable to prevent blowing or scattering refuse and access to the container by animals
while the container is at the site designated by customer;
(4) All containers shall be periodically cleaned, maintained, serviced and kept in a
reasonably good state of repair, to prevent the unreasonable accumulation of refuse
residues, to avoid excessive odor and harborage for rodents and flies resulting from
excessive residues remaining after collection of containers;
(5) All containers shall be clearly marked with the company's name and telephone
number in letters not less than four inches in height;
(6) All containers shall not be on public rights-of-way and shall be located so as to not
interfere, block, obstruct or impede the normal use of any sidewalk, street, alley driveway
or fire lane, or to block, obstruct or impede sight distance at street, road or alley
intersections;
(7) All containers, bins, or other collection instruments must be kept free from graffiti,
rust, broken and nonoperational parts and pieces, and litter in and around the area; and
(8) It shall be the responsibility of each company to educate their customers on the
regulations of containers and maintain industry standards, policies, and procedures, which
promote an aesthetically pleasing environment in and around all refuse and waste
containers and receptacles.
(Ord. No. 06-11-04, § 6, 11-21-2006; Ord. No. 07-11-54, § 6, 11-15-2007; Ord. No. 08-11-30, §
6, 11-17-2008; Ord. No. 10-11-84, § 6, 11-15-2010)
Editor's note— Section 6 of Ord. No. 10-11-84, adopted Nov. 15, 2010, changed the title of § 46-68 from
"Container requirements" to "Regulation of containers."
Sec. 46-69. - Disposal of refuse.
The company will deliver all waste collected by it from it's customers within the city, except for
STATE OF GEORGIA ORDINANCE NO. 11-11-117
COUNTY OF FULTON
Page 12 of 22
materials which the company may select for recovery and recycling, to a disposal facility that is
permitted by the EPD to accept such refuse and waste. Rules and regulations governing hours
of operation and disposal practices at the disposal facility will be observed and followed by the
company while engaged in the disposal of refuse pursuant to this article. Any items collected as
part of a recycling program must be delivered to a facility where recovery and reuse occurs.
Should any company choose to offload or dispose of materials collected by one vehicle into
another for transport to the final disposal facility, company shall make every available effort to
perform such refuse transfer on property owned by the company or privately owned property
where the company has an agreement with the property owner to perform such activity. In the
event any transfer occurs on public land, including streets, alleys, rights-of-ways, roads,
thoroughfares, avenues, parkways, expressways, or other areas designed and designated for
public travel, company shall make every effort available to clean the area after completion of the
transfer to insure the area is maintained at the same or better level than if the area was not
used for this activity. In the event the city receives complaints regarding this practice, company
shall be required to cease from this activity at the location of the complaint.
(Ord. No. 06-11-04, § 7, 11-21-2006; Ord. No. 07-11-54, § 7, 11-15-2007; Ord. No. 08-11-30, §
7, 11-17-2008; Ord. No. 10-11-84, § 7, 11-15-2010)
Sec. 46-70. - Contract and rental fees.
Contract fee. The streets, rights-of-way, and public easements to be used by the company in
the operation of its business within the boundaries of the city as such boundaries now exist and
exist from time to time during the term of this contract, are valuable public properties acquired
and maintained by the city at great expense to its taxpayers, and the city will incur costs to
regulate and administer this article. In consideration of such benefits, costs and expenses, the
company shall through the term of its contract collect an "infrastructure maintenance fee" equal
to five percent of the company's gross receipts to customers within the city (exclusive of sales
tax). The term "infrastructure maintenance fee" shall be used on all bills, invoices, or statements
sent by any company to a customer under this article. This fee is applicable to haulers that are
providing trash and recycling collection to residential accounts as well as haulers serving
commercial accounts.
(1) Fees paid. The infrastructure maintenance fee shall be payable quarterly to the city
and delivered to the city in conjunction with a statement indicating the derivation and
calculation of such payment. Each such quarterly payment shall be due on the fifteenth
day of the second month following the end of the quarterly period for which said payment is
due. The quarterly payments shall be due on February 15, May 15, August 15, and
November 15 of each year during the term hereof, with the February 15 payment being
based upon the company's gross receipts during the calendar quarter ending the prior
December 31 and being payment for the rights and privileges granted hereunder for said
calendar quarter, the May 15 payment being based upon the company's gross receipts
during the calendar quarter ending the prior March 31 and being payment for the rights and
privileges granted hereunder for said calendar quarter, the August 15 payment being
based upon the company's gross receipts during the calendar quarter ending the prior
June 30 and being payment for the rights and privileges granted hereunder for said
calendar quarter, and the November 15 payment being based upon the company's gross
receipts during the calendar quarter ending the prior September 30 and being payment for
the rights and privileges granted hereunder for said calendar quarter. During the
implementation of this article, all bills generated by companies after December 1, 2006,
STATE OF GEORGIA ORDINANCE NO. 11-11-117
COUNTY OF FULTON
Page 13 of 22
shall include the infrastructure maintenance fee. The city shall provide material relating to
the education and marketing efforts of the infrastructure maintenance fee as well as
provide education and training to company employees to ensure a consistent message is
conveyed to constituents of the City of Milton. For purposes of verifying the amount of such
fee, the books of the company shall at all reasonable times be subject to inspection by the
duly authorized representatives of the city. If the infrastructure maintenance fee is not paid by
the due date as set forth herein, the company from whom the fee was due shall be assessed and shall
pay a late fee in the amount of 10% of the amount not timely paid. In addition , all amounts
otherwise due, including late fees, shall accrue interest at the rate of 1.5% per calendar month
beginning 30 days after the original due date.
(2) No other rental fees. The contract fee shall be in lieu of any and all other city-imposed
rentals or compensation or contract, privilege, instrument, occupation, excise or revenue
taxes or fees and all other exactions or charges (except ad valorem property taxes, special
assessments for local improvements, city sales tax, and such other charges for utility
services imposed uniformly upon persons, firms or corporations then engaged in business
within the city) or permits upon or relating to the business, revenue, installations and
systems, fixtures, and any other facilities of the company and all other property of the
company and its activities, or any part thereof, in the city which relate to the operations of
the company pursuant to this article; provided, that this shall not be construed to prevent
the company from being required to pay any and all applicable fees and charges in effect
from time to time for dumping at a landfill or transfer station.
(3) Credit for fees paid. Should the city not have the legal power to agree that the
payment of the foregoing sums of money shall be in lieu of contracts, fees, street or alley
rentals or charges, easement or ordinance fees or charges aforesaid, then city agrees that
it will apply so much of said sums of money paid as may be necessary to company's
obligations, if any, to pay any such contract, ordinance charges, other charges, fees,
rentals, easement, taxes or charges.
(4) Reporting. Any company providing service pursuant to this article or a resulting
contract shall from time to time provide the city with the necessary statistics regarding
waste collected and disposed which shall allow the city to comply with state reporting
requirements. Such information shall be in the manner and format requested by the city
and provide adequate details for the city to maintain compliance with local, state, federal,
and all other guidelines relating to solid waste collection, removal, and disposal.
(5) Dedicated revenue. The infrastructure maintenance fee collected by the city under
this article shall be dedicated to the following: (i) maintenance of the city's streets,
corridors, alleys, thoroughfares, and transportation routes; (ii) administration of contract
compliance between customers and companies where service is received as provided in
this article; and (iii) collection of litter, and trash and hazardous waste materials within the
city.
(Ord. No. 06-11-04, § 8, 11-21-2006; Ord. No. 07-11-54, § 8, 11-15-2007; Ord. No. 08-11-30, §
8, 11-17-2008; Ord. No. 10-11-84, § 8, 11-15-2010)
Editor's note— Section 8 of Ord. No. 10-11-84, adopted Nov. 15, 2010, changed the title of § 46-70 from
"Fees" to "Contract and rental fees."
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STATE OF GEORGIA ORDINANCE NO. 11-11-117
COUNTY OF FULTON
Page 14 of 22
Sec. 46-71. - Compliance with law.
The company shall conduct under this article in compliance with the material provisions of all
applicable local, state and federal laws, rules and regulations, and with the general
specifications contained in this article.
(Ord. No. 06-11-04, § 9, 11-21-2006; Ord. No. 07-11-54, § 9, 11-15-2007; Ord. No. 08-11-30, §
9, 11-17-2008; Ord. No. 10-11-84, § 9, 11-15-2010)
Editor's note— Section 9 of Ord. No. 10-11-84, adopted Nov. 15, 2010, changed the title of § 46-71 from
"Compliance with local, state and federal regulations required" to "Contract and rental fees."
Sec. 46-72. - Insurance provided by company.
(a) Minimum coverage requirements. The company shall maintain throughout the term of its
contract, property damage coverage, general liability insurance, and automobile liability
insurance for any automobile owned or operated by company, with an insurance company
authorized and licensed to do business in the State of Georgia and acceptable to the city,
insuring against claims for liability and damages for the benefit of the city. The insurance shall
include the city as an additional insured. General liability coverage insurance under this section
shall be a minimum of $1,000,000.00 per occurrence with a $2,000,000.00 aggregate.
Automobile liability insurance under this section shall, at a minimum, have limits of
$1,000,000.00 for each occurrence. Additionally, umbrella coverage of $1,000,000.00 on both
automobile liability insurance and general liability insurance is required.
(b) Employer's liability. If the company is required by Georgia Statute, the company shall
maintain throughout the term of the contract resulting from this article the requisite statutory
workers' compensation insurance, and a minimum of $100,000.00 employer's liability insurance.
Company shall be required to show compliance to this section by submitting documentation of
such coverage from an approved carrier licensed in the State of Georgia, or documentation
explaining the exemption from employer's liability insurance should they not meet the state
requirements to carry such coverage.
(c) Certificate of insurance. The insurance policy, or policies, obtained by the company in
compliance with this section shall be approved by the city manager or his designee in the city
manager's or his designee's reasonable discretion, and the certificate of insurance for the
insurance policy shall be filed and maintained with the city during the term of the contract
resulting from this article with a copy of the endorsement required under subsection (d) to be
attached or made a part of such certificate.
(d) Endorsements. All insurance policies maintained pursuant to this article shall contain the
following conditions by endorsement:
(1) Additional insured. The city shall be an additional insured and the term "owner" and
"city" shall include all authorities, boards, bureaus, commissions, divisions, departments
and offices of the city and the individual members, officers, employees and agents thereof
in their official capacities and/or while acting on behalf of the city.
(2) Other insurance clause. The policy clause "other insurance" shall not apply to the city
when the city is an insured on the policy.
(3) No recourse. Companies issuing the insurance policies shall not recourse against the
city for payment of any premium or assessment.
STATE OF GEORGIA ORDINANCE NO. 11-11-117
COUNTY OF FULTON
Page 15 of 22
(e) Increase requirements. The city may choose to amend this article to make reasonable
adjustments to the insurance coverage and their limits when deemed necessary and prudent
based upon changes in statutory law, court decisions, or the claims history of the industry.
(Ord. No. 06-11-04, § 10, 11-21-2006; Ord. No. 07-11-54, § 10, 11-15-2007; Ord. No. 08-11-30,
§ 10, 11-17-2008; Ord. No. 10-11-84, § 10, 11-15-2010)
Editor's note— Section 10 of Ord. No. 10-11-84, adopted Nov. 15, 2010, changed the title of § 46 -72 from
"Company to provide insurance" to "Insurance provided by company."
Sec. 46-73. - Indemnification and hold harmless.
The company agrees to indemnify, defend and save harmless the city, its agents, officers and
employees, against and from any and all claims by or on behalf of any person, firm, corporation
or other entity arising from any negligent act or omission or willful misconduct of the company,
or any of its agents, contractors, servants, employees or contractors, and from and against all
costs, counsel fees, expenses and liabilities incurred in or about any such claim or proceeding
brought thereon. Promptly after receipt from any third party by city of a written notice of any
demand, claim or circumstance that, immediately or with the lapse of time, would give rise to a
claim or the commencement (or threatened commencement) of any action, proceeding or
investigation (an "asserted claim") that may result in losses for which indemnification may be
sought hereunder, the city shall give written notice thereof (the "claims notice") to the company
provided, however, that a failure to give such notice shall not prejudice the city's right to
indemnification hereunder except to the extent that the company is actually and materially
prejudiced thereby. The claims notice shall describe the asserted claim in reasonable detail, and
shall indicate the amount (estimated, if necessary) of the losses that have been or may be
suffered by the city when such information is available. The company may elect to compromise
or defend, at its own expense and by its own counsel, any asserted claim. If the company elects
to compromise or defend such asserted claim, it shall, within 20 business days following its
receipt of the claims notice (or sooner, if the nature of the asserted claim so required) notify the
city of its intent to do so, and the city shall cooperate, at the expense of the company, in the
compromise of, or defense against, such asserted claim. If the company elects not to
compromise or defend the asserted claim, fails to notify the city of its election as herein provided
or contests its obligation to provide indemnification under this agreement, the city may pay,
compromise or defend such asserted claim with all reasonable costs and expenses borne by
the company. Notwithstanding the foregoing, neither the company nor the city may settle or
compromise any claim without the consent of the other party; provided, however, that such
consent to settlement or compromise shall not be unreasonably withheld. In any event, the city
and the company may participate at their own expense, in the defense of such asserted claim. If
the company chooses to defend any asserted claim, the city shall make available to the
company any books, records or other documents within its control that are necessary or
appropriate for such defense.
(Ord. No. 06-11-04, § 11, 11-21-2006; Ord. No. 07-11-54, § 11, 11-15-2007; Ord. No. 08-11-30,
§ 11, 11-17-2008; Ord. No. 10-11-84, § 11, 11-15-2010)
Editor's note— Section 11 of Ord. No. 10-11-84, adopted Nov. 15, 2010, changed the title of § 46 -73 from
"Company to indemnify city; defense of suits" to "Indemnification and hold harmless."
Secs. 46-74—46-92. - Reserved.
STATE OF GEORGIA ORDINANCE NO. 11-11-117
COUNTY OF FULTON
Page 16 of 22
DIVISION 3. - TERMINATION OF CONTRACT
Sec. 46-93. - Forfeiture and terminating of contract.
Sec. 46-94. - Transfer, sale or conveyance by company.
Sec. 46-95. - Foreclosure.
Sec. 46-96. - Receivership and bankruptcy.
Secs. 46-97—46-115. - Reserved.
Sec. 46-93. - Forfeiture and terminating of contract.
(a) Material breach. In addition to all other rights and powers retained by the city under this
article or otherwise, the city reserves the right to declare any resulting contract from this article
forfeited and to terminate the contract and all rights and privileges of the company hereunder in
the event of a material breach of the terms and conditions hereof. A material breach by
company shall include, but shall not be limited to, the following:
(1) Fees. Failure to pay the fees set out in section 46-70
(2) Telephone listings. Failure to keep and maintain a local telephone listing and office or
answering service that is available by phone without long distance charge during regular
business hours for service to the public, and which telephone or office shall, at minimum,
provide and maintain the following services:
a. Coordinate and provide information concerning deposits, payments and
accounts to customers and prospective customers;
b. Respond to customer and prospective customer questions and issues about
billings, accounts, deposits and services;
c. Coordination with the city with respect to private sector and public works projects
and issues related to or affecting the company's operation; and
d. Immediate response, upon request, to police, fire and other emergency
situations in which the public health and safety requires action with respect to or
assistance regarding company's property.
(3) Failure to provide service. Failure to materially provide the services provided for in
this article;
(4) Misrepresentation. Material misrepresentation of fact in the application for or
negotiation of any contract resulting from this article; or
(5) Conviction. Conviction of any director, officer, employee, or agent of the company of
the offense of bribery or fraud connected with or resulting from the award of a contract
from this article.
(b) Operation information. Material misrepresentation of fact knowingly made to the city with
respect to or regarding company's operations, management, revenues, services or reports
required pursuant to this article.
(c) Economic hardship. Company shall not be excused by mere economic hardship nor by
STATE OF GEORGIA ORDINANCE NO. 11-11-117
COUNTY OF FULTON
Page 17 of 22
misfeasance or malfeasance of its directors, officers or employees.
(d) Forfeiture and proceedings. Any unwarranted and intentional neglect, failure or refusal of
the company to comply with any material provision of this article or resulting contract within 30
days after written notice from city setting forth the specific provision and noncompliance, said
notice to be mailed to company at its principal place of business by certified mail, return receipt
requested, shall be deemed a breach of this article, and the city council, upon notice to
company and hearing, may, for good cause declare a contract forfeited and exclude company
from further use of the streets of the city under this article, and the company shall thereupon
surrender all rights in and under this article and contract.
(1) Proceedings. In order for the city to declare a forfeiture pursuant to subsections (a),
(b), (c), (d), the city shall make a written demand that the company comply with any such
provision, rule, order, or determination under or pursuant to this article. If such violation by
the company continues for a period of 30 days following such written demand without
written proof that the corrective action has been taken or is being actively and
expeditiously pursued, the council may take under consideration the issue of termination of
the resulting contract from this article. The city shall cause to be served upon company, at
least 20 days prior to the date of such a council meeting, a written notice of intent to
request such termination and the time and place of the meeting. Notice shall be given of
the meeting and issue which the council is to consider.
(2) Hearing. The council shall hear and consider the issue, hear any person interested
therein, and shall determine whether or not any violation by the company has occurred.
(3) Forfeiture. If the council shall determine that the violation by the company was the
fault of company and within its control, the council may declare the contract forfeited and
terminated, or the council may grant to company a period of time for compliance.
(Ord. No. 06-11-04, § 12, 11-21-2006; Ord. No. 07-11-54, § 12, 11-15-2007; Ord. No. 08-11-30,
§ 12, 11-17-2008; Ord. No. 10-11-84, § 12, 11-15-2010)
Editor's note— Section 12 of Ord. No. 10-11-84, adopted Nov. 15, 2010, changed the title of § 46 -93 from
"Forfeiture" to "Forfeiture and terminating of contract."
Sec. 46-94. - Transfer, sale or conveyance by company.
The company shall not transfer, assign, sell or convey any rights granted under any resulting
contract from this article without the prior approval of the city council; provided that this section
shall not apply to vehicles, replacements, maintenance, upgrades or modifications of
equipment, machinery, containers and buildings by company for the purpose of maintaining and
continuing its operation within the city; and provided further that company may, in its sole
discretion and upon written notice to the city, transfer, assign, sell or convey their rights under
this article to a wholly owned subsidiary of the company or to an affiliated entity that is under
common control with company (i.e., has a common parent entity).
(Ord. No. 06-11-04, § 13, 11-21-2006; Ord. No. 07-11-54, § 13, 11-15-2007; Ord. No. 08-11-30,
§ 13, 11-17-2008; Ord. No. 10-11-84, § 13, 11-15-2010)
Editor's note— Section 13 of Ord. No. 10-11-84, adopted Nov. 15, 2010, changed the title of § 46 -94 from
"Transfer, sale or conveyance by company prohibited; exceptions" to "Transfer, sale or conveyance by
company."
STATE OF GEORGIA ORDINANCE NO. 11-11-117
COUNTY OF FULTON
Page 18 of 22
Sec. 46-95. - Foreclosure.
upon the foreclosure or other judicial sale of all or a substantial part of the assets and property
of the company used for and dedicated to providing service pursuant to this article, the company
shall notify the city of such fact, and such notification shall by treated as a notification that a
change in control of the company has taken place and the provisions of this article governing
the consent of the council to such change in control of the company shall apply. Upon the
foreclosure or judicial sale, or the leasing of all or a substantial part of the property and assets of
the company dedicated to and used for the purposes of providing service pursuant to this
article, without the prior approval of the council, the council may, upon hearing and notice,
terminate any contract resulting from this article.
(Ord. No. 06-11-04, § 14, 11-21-2006; Ord. No. 07-11-54, § 14, 11-15-2007; Ord. No. 08-11-30,
§ 14, 11-17-2008; Ord. No. 10-11-84, § 14, 11-15-2010)
Editor's note— Section 14 of Ord. No. 10-11-84, adopted Nov. 15, 2010, changed the title of § 46 -95 from
"Foreclosure or judicial sale" to "Foreclosure."
Sec. 46-96. - Receivership and bankruptcy.
Cancellation option. The council shall have the right to cancel any contract resulting from this
article 120 days after the appointment of a receiver or trustee to take over and conduct the
business of the company, whether in receivership, reorganization, bankruptcy, other action or
preceding, whether voluntary or involuntary, unless such receivership or trusteeship shall have
been vacated prior to the expiration of said 120 days, unless:
(1) Trustee compliance. Within 120 days after his election or appointment, such receiver
trustee shall have fully complied with all the provisions of this article and remedied all
defaults thereunder; or
(2) Trustee agreement. Such receiver or trustee, within 120 days, shall have executed an
agreement, duly-approved by the court having jurisdiction, whereby the receiver or trustee
assumes and agrees to be bound by each and every provision of this article granted to the
company.
(Ord. No. 06-11-04, § 15, 11-21-2006; Ord. No. 07-11-54, § 15, 11-15-2007; Ord. No. 08-11-30,
§ 15, 11-17-2008; Ord. No. 10-11-84, § 15, 11-15-2010)
Secs. 46-97—46-115. - Reserved.
DIVISION 4. - ADDITIONAL PROVISIONS
Sec. 46-116. - Retention of city police powers.
Sec. 46-117. - Amendments of city ordinances and regulations.
Sec. 46-118. - Taxes.
Sec. 46-119. - Public necessity.
Sec. 46-120. - No suspension of laws.
Sec. 46-121. - Peaceful employment.
Sec. 46-122. - Endorsements and records.
Sec. 46-123. - Acceptance by company.
STATE OF GEORGIA ORDINANCE NO. 11-11-117
COUNTY OF FULTON
Page 19 of 22
Sec. 46-116. - Retention of city police powers.
The city retains and reserves all of its police powers and the rights, privileges, and immunities
that it now has under the law to regulate, patrol and police the streets and public ways within the
city, and the granting of any contract as a result of this article shall in no way interfere with the
improvements to, or maintenance of, any street, alley or public way, and the rights of the city to
use said streets, alleys and public ways.
(Ord. No. 06-11-04, § 16, 11-21-2006; Ord. No. 07-11-54, § 16, 11-15-2007; Ord. No. 08-11-30,
§ 16, 11-17-2008; Ord. No. 10-11-84, § 16, 11-15-2010)
Sec. 46-117. - Amendments of city ordinances and regulations.
The city reserves the right and power, pursuant to its police power, after due notice to company,
to modify, amend, alter, change or eliminate any rules, regulations, fees, charges and rates of
the city, and to impose such additional conditions, that are not inconsistent with the rights
granted by this article, upon the company and all persons, firms or entities of the same class as
the company, as may be reasonably necessary in the discretion of the city council to preserve
and protect the public, health, safety and welfare and/or insure adequate service to the public.
(Ord. No. 06-11-04, § 17, 11-21-2006; Ord. No. 07-11-54, § 17, 11-15-2007; Ord. No. 08-11-30,
§ 17 11-17-2008; Ord. No. 10-11-84, § 17, 11-15-2010)
Editor's note— Section 17 of Ord. No. 10-11-84, adopted Nov. 15, 2010, changed the title of § 46-117 from
"Reservation to amend city ordinances and regulations" to "Amendments of city ordinances and regulations."
Sec. 46-118. - Taxes.
The company shall promptly pay all lawful ad valorem taxes, levies and assessments, if any,
that are imposed upon the company. Absent an administrative or judicial challenge, or appeal,
the failure to pay any such tax, levy or assessment shall be a breach of this article.
(Ord. No. 06-11-04, § 18, 11-21-2006; Ord. No. 07-11-54, § 18, 11-15-2007; Ord. No. 08-11-30,
§ 18, 11-17-2008; Ord. No. 10-11-84, § 18, 11-15-2010)
Editor's note— Section 18 of Ord. No. 10-11-84, adopted Nov. 15, 2010, changed the title of § 46 -118 from
"Payment of taxes required" to "Taxes."
Sec. 46-119. - Public necessity.
The council hereby finds and declares that the public welfare, convenience and necessity
require the service which is to be furnished by the company.
(Ord. No. 06-11-04, § 19, 11-21-2006; Ord. No. 07-11-54, § 19, 11-15-2007; Ord. No. 08-11-30,
§ 19, 11-17-2008; Ord. No. 10-11-84, § 19, 11-15-2010)
Editor's note— Section 19 of Ord. No. 10-11-84, adopted Nov. 15, 2010, changed the title of § 46 -119 from
"Disposal of solid waste deemed public necessity" to "Public necessity."
Sec. 46-120. - No suspension of laws.
All provisions of the ordinances of the city as now existing or as may be amended from time to
time, and all provisions of the statutes of the State of Georgia applicable to general law cities
shall be a part of any resulting contract from this article as fully as if the same had been
expressly stated herein, and said the city retains and may exercise all of the governmental and
STATE OF GEORGIA ORDINANCE NO. 11-11-117
COUNTY OF FULTON
Page 20 of 22
police powers and all other rights and powers not directly inconsistent with the terms, conditions
and provisions of this article.
(Ord. No. 06-11-04, § 22, 11-21-2006; Ord. No. 07-11-54, § 22, 11-15-2007; Ord. No. 08-11-30,
§ 22, 11-17-2008; Ord. No. 10-11-84, § 22, 11-15-2010)
Editor's note— Section 22 of Ord. No. 10-11-84, adopted Nov. 15, 2010, changed the title of § 46 -120 from
"City ordinances and state law considered part of contract" to "No suspension of laws."
Sec. 46-121. - Peaceful employment.
From and after the effective date of this article, the city and the company shall be and are
hereby authorized and entitled to act in reliance upon the terms, conditions and provisions of
this article and any resulting contract and, subject thereto, the company shall collect rates for
service, operate and conduct its business and work within the city, and enjoy the benefits and
privileges of this article during the term hereof.
(Ord. No. 06-11-04, § 23, 11-21-2006; Ord. No. 07-11-54, § 23, 11-15-2007; Ord. No. 08-11-30,
§ 23, 11-17-2008; Ord. No. 10-11-84, § 23, 11-15-2010)
Editor's note— Section 23 of Ord. No. 10-11-84, adopted Nov. 15, 2010, changed the title of § 46-121 from
"City and company to rely on this chapter" to "Peaceful employment."
Sec. 46-122. - Endorsements and records.
The city clerk is directed to make endorsements as appropriate over his/her official hand and
the seal of the city on the form provided at the conclusion of this article, for the public record and
convenience of the citizens, of the date upon which this article is finally passed and adopted.
(Ord. No. 06-11-04, § 25, 11-21-2006; Ord. No. 07-11-54, § 25, 11-15-2007; Ord. No. 08-11-30,
§ 25, 11-17-2008; Ord. No. 10-11-84, § 25, 11-15-2010)
Sec. 46-123. - Acceptance by company.
Within 30 days after the passage of this article, or within 30 days of establishing a business
within the corporate city limits, all companies operating a residential or commercial refuse waste
service shall file with the city its acceptance of the terms and provisions of this article, and
request for contract. The acceptance and request for contract shall be in writing on the
company's letterhead and provide as follows:
City of Milton
Attention: City Manager
13000 Deerfield Parkway,
Suite 107A/B
Milton, GA 30004
____________ (the "Company"), acting by and through an officer who is acting within its
official capacity and authority, hereby accepts the City of Milton Solid Waste Ordinance to
operate a refuse and solid waste collection and disposal system within the City as said
Ordinance is set forth and provided herewith. The Company agrees to be bound and
governed by each term, provision and condition of the Ordinance, to accept and to give the
STATE OF GEORGIA ORDINANCE NO. 11-11-117
COUNTY OF FULTON
Page 21 of 22
benefits provided by the Ordinance, and to perform each service and duty set forth and
provided for in the Ordinance in a businesslike and reasonable manner and in compliance
with the Ordinance.
Company: .....
By: .....
Printed Name: .....
Title: .....
(Ord. No. 06-11-04, § 26, 11-21-2006; Ord. No. 07-11-54, § 26, 11-15-2007; Ord. No. 08-11-30,
§ 26, 11-17-2008; Ord. No. 10-11-84, § 26, 11-15-2010)
Editor's note— Section 26 of Ord. No. 10-11-84, adopted Nov. 15, 2010, changed the title of § 46 -123 from
"Written acceptance of company required" to "Acceptance by company."
46-124. – Decal
Upon satisfactory compliance with the requirements set forth in this Chapter in order to allow the
company to collect and/or dispose of waste, garbage and/or refuse, the City shall issue to the company a
decal designating the company as an approved Milton hauler in compliance with the City’s solid waste
ordinance.
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STATE OF GEORGIA ORDINANCE NO. 11-11-117
COUNTY OF FULTON
Page 22 of 22
Appendix A
Section 1: The City seeks to institute a policy to issue an annual decal to designate the hauling
company as an approved Milton hauler in compliance with the City’s solid waste ordinance.
Section 2: The City seeks to institute a late payment policy for quarterly in frastructure
maintenance fees in the amount of a 10% penalty (one time) and 1.5% monthly interest.
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STATE OF GEORGIA ORDINANCE NO.
COUNTY OF FULTON
Page 1 of 21
AN ORDINANCE REAFFIRMING AND ESTABLISHING CHAPTER 46 OF THE
MILTON CODE OF ORDINACES GOVERNING SOLID WASTE COLLECTION
SERVICES WITHIN THE CITY OF MILTON; PROVIDING FOR THE SCOPE AND
NATURE OF THE OPERATION; PROVIDING FOR THE DISPOSAL OF GARBAGE,
SOLID WASTE AND REFUSE; REQUIRING THE EXECUTION BY SERVICE PROVIDERS
OF A NON-EXCLUSIVE AGREEMENT WITH THE CITY OF MILTON; PROVIDING
PROCEDURES FOR THE HANDLING OF COMPLAINTS; PROVIDING FOR AN
INFRASTRUCTURE MAINTENANCE FEE; REQUIRING INDEMNITY INSURANCE;
PROVIDING FOR REVOCATION AND AMENDMENT; PROHIBITING ASSIGNMENT
AND SUBLETTING WITHOUT CONSENT; PROVIDING FOR FORFEITURE; AND FOR
MAKING OTHER PROVISIONS.
BE IT ORDAINED by the City Council of the City of Milton, GA while in a regularly called council
meeting on December 3, at 6:00 p.m. as follows:
SECTION 1. The City of Milton (“City”) seeks to provide standards of operation, regulation,
and oversight in the providing of solid waste services within the corporate city limits;
SECTION 2. Pursuant to past iterations of this Ordinance, the City currently recognizes the
following companies as “Approved Haulers” in the City limits: 1-800-GOT-JUNK, Advanced
Disposal, Allegiance Sanitation, American Disposal Services, Arrow Inc., Custom Disposal,
Henry Edward Kincaid, Grogan’s Disposal, GW Lovelace, M&M Waste, The Dumpster
Company, Red Oak Sanitation, Republic Services, Sanitation Solutions, Waste Management, and
Waste Pro;
SECTION 3. The City seeks to confirm the “Approved Haulers” list as long as the companies
are found to be acting consistently with the Ordinance and recognizes that the City Council may
seek to amend the Approved Haulers List as need arises and in accordance with the established
Solid Waste Ordinance;
SECTION 4. It is in the interest of the City and its citizens to offer companies currently
providing such services a non-exclusive contract on such terms and conditions that will provide
the City with the controls and options necessary to provide for the public good;
SECTION 5. Chapter 46 of the Milton City Code of Ordinances, the Milton Solid Waste
Ordinance, attached hereto as Exhibit A is hereby ratified, approved and affirmed, subject to
those redline modifications set forth in attached Exhibit A;
SECTION 6. All ordinances, parts of ordinances, or regulations in conflict herewith are rejected;
SECTION 7. This Ordinance shall become effective upon its adoption;
ORDAINED this the 3rd day of December, 2012.
STATE OF GEORGIA ORDINANCE NO.
COUNTY OF FULTON
Page 2 of 21
__________________________________
Joe Lockwood, Mayor
Attest:
___________________________
Sudie AM Gordon, City Clerk
(Seal)
STATE OF GEORGIA ORDINANCE NO.
COUNTY OF FULTON
Page 3 of 21
EXHIBIT A
Chapter 46 - SOLID WASTE [46]
(46) State Law reference— Solid waste management generally, O.C.G.A. § 12-8-20 et seq.; Georgia
Comprehensive Solid Waste Management Act, O.C.G.A. § 12-9-1; hazardous waste management,
O.C.G.A. § 12-8-79; local and regional solid waste plans, O.C.G.A. § 12 -8-31.1; tire disposal restrictions,
O.C.G.A. § 12-8-40.1; yard trimmings and disposal restrictions, O.C.G.A. § 12-8-40.2; authorization for
local government units to enforce collection of taxes, fees, or assessments for solid waste management,
O.C.G.A. § 12-8-39.3; authority of local governments to adopt and enforce local regulations for the
handling and disposal of solid waste, O.C.G.A. § 12-8-30.9; Litter Control Law, O.C.G.A. § 16-7-40;
transporting garbage or waste across state or county boundaries pursuant to contract, O.C.G.A . § 36-1-
16; Resource Recovery Development Authorities Law, O.C.G.A. § 36 -63-1 et seq.; littering highways,
O.C.G.A. § 40-6-249.
ARTICLE I. - IN GENERAL
ARTICLE II. - LITTERING
ARTICLE III. - COLLECTION SERVICES
ARTICLE I. - IN GENERAL
Sec. 46-1. - Definitions.
Sec. 46-2. - Purpose.
Sec. 46-3. - Collection fees.
Sec. 46-4. - Medical waste to be disposed of according to state and federal regulations.
Secs. 46-5—46-23. - Reserved
Sec. 46-1. - Definitions.
For the purpose of this chapter, whenever inconsistent with the context, words used in the
present tense include the future tense, words in the plural include the singular, words in the
singular include the plural, and the use of any gender shall be applicable to all genders
whenever the sense requires. The words "shall" and "will" are mandatory and the word "may" is
permissive. Words not defined in this section or otherwise in this chapter shall be given their
common and ordinary meaning.
The following words, terms, phrases and their derivations shall, in this chapter, have the
meaning given in this section.
Approved container or approved bag or container or bag means those containers used in the
collection of solid waste, as defined in this chapter, which have been approved by the company
for use by both residential and commercial customers.
Area shall mean the area within the boundaries of the incorporated areas of the City of Milton,
STATE OF GEORGIA ORDINANCE NO.
COUNTY OF FULTON
Page 4 of 21
as they exist as of the effective date in addition to future boundary changes as outlined in [the
term "city"].
City means the City of Milton, Georgia, an incorporated municipal government in Fulton County,
State of Georgia. Boundaries defining the city limits may be changed via ordinances approved
by the city council, for which any new boundary created shall be subject to this contract.
Commercial unit shall mean any structure, whether freestanding or designed to serve multiple
tenants, whose primary purpose is for conducting business.
Company means any organization, firm, person, entity, corporation or other business that
contracts with customers to provide for the collection and disposal of solid waste material as
defined in this article, and including but not limited to construction/demolition debris, dead
animals, garbage, waste, storm debris, yard trimmings, and recyclable material.
Construction/demolition debris shall have the meaning set forth by the Georgia Department of
Natural Resources, Environmental Protection Division (Georgia EPD Chapter 391-3-4.01(14)).
Construction site shall mean any parcel of land or real property having land disturbance,
clearing and grading, demolition, improvements and betterments, renovation, remodeling and/or
new construction work performed thereon or about the real property or prem ises whether or not
a land disturbance and/or building permit is required.
Customer shall mean any firm, person, entity, corporation or organization that contracts with a
company for the collection and disposal of solid waste material as defined in this chapter, and
including, but not limited to, construction/demolition debris, dead animals, garbage, waste,
storm debris, yard trimmings, and recyclable material.
Dead animals shall mean animals or portions thereof equal to or greater than ten pounds in
weight that have died from any cause, except those slaughtered or killed for human use.
Effective date means any contract executed between the city and any company on or after
December 1, 2009.
Environmental laws means all applicable laws, directives, rules, ordinances, codes, guidelines,
regulations, governmental, administrative or judicial orders or decrees or other legal
requirements of any kind, including, without limitation, common law, whether currently in
existence or hereafter promulgated, enacted, adopted or amended, relating to safety,
preservation or protection of human health and the environment (including ambient air, surface
water, groundwater, land, or subsurface strata) and/or relating to the handling, treatment,
transportation or disposal of waste, substances or materials, including, without limitation, any
matters related to releases and threatened releases of materials and substances.
Garbage shall have the meaning set forth at Georgia Department of Natural Resources,
Environmental Protection Division ("Georgia EPD Chapter 391-3-4-.01(21)).
Gross receipts shall mean the total amount collected by the company from any and all
customers for services rendered under authority of this chapter as a result of charges for
service. Gross receipts shall not include the infrastructure maintenance fee identified in this
chapter.
Hazardous materials means any pollutant, contaminant, hazardous or toxic substance,
constituent or material, including, without limitation, petroleum products and their derivatives, or
STATE OF GEORGIA ORDINANCE NO.
COUNTY OF FULTON
Page 5 of 21
other substances, regulated under or pursuant to any environmental laws. The term "hazardous
materials" also includes any pollutant, contaminant, hazardous or toxic substance, constituent or
material, including, without limitation, petroleum products and their derivatives, or other
substance that is, after the date first written above, deemed hazardous be any judicial or
governmental entity, body or agency having jurisdiction to make that determination.
Hazardous waste means any waste regulated under or pursuant to any environmental laws,
including, but not limited to, any solid waste which has been defined as a hazardous waste in
regulations promulgated by the Board of Natural Resources, Chapter 291-3-11. The term
"hazardous waste" also includes hazardous materials and any waste that is, after the effective
date of this agreement, deemed hazardous by any judicial or governmental entity, board, body
or agency having jurisdiction to make that determination. The term "hazardous waste" will be
construed to have the broader, more encompassing definition where a conflict exists in the
definitions employed by two or more governmental entities having concurrent or overlapping
jurisdiction over hazardous waste.
Recycling shall have the meaning set forth at Georgia Department of Natural Resources,
Environmental Protection Division ("Georgia EPD") Chapter 391-3-4-.01(57).
Residential unit shall mean any structure, whether single family, multi-family, or otherwise
whose primary purpose is for living.
Solid waste means the collection of residential and commercial nonrecyclable waste, residential
and commercial recyclable waste, and residential yard trimmings/waste.
Term shall mean a period of one year from the effective date.
Waste means all putrescible and nonputrescible solid, semi-solid, and liquid wastes, including
residential or commercial garbage, trash, refuse, paper, rubbish, ashes, manure, vegetable or
animal solid and semi-solid wastes, and other discarded solid and semi-solid wastes.
Yard trimmings shall have the meaning set forth at Georgia Department of Natural Resources,
Environmental Protection Division ("Georgia EPD") Chapter 391-3-4-.01(77).
(Ord. No. 06-11-04, § 1, 11-21-2006; Ord. No. 07-11-54, § 1, 11-15-2007; Ord. No. 08-11-30, §
1, 11-17-2008; Ord. No. 10-11-84, § 1, 11-15-2010)
Sec. 46-2. - Purpose.
This chapter regulates the collection and disposal of waste and garbage including, but not
limited to, all waste byproducts of manufacturing or commercial establishments, cinders and
ashes from commercial boilers, and cardboard and wooden boxes, crates and barrels, as well
domestic waste including meat, vegetable and fruit scraps, cans, bottles, paper, cardboard,
rags, ashes, and other such waste material ordinarily disposed from residences, churches,
schools, small business establishments, and other such places.
(1) The term "garbage" does not include animals, fowl, and fish entrails, bones and
carcasses whether in whole or in part, from business establishments such as
slaughterhouses and meat and fish markets. Such material means "other waste."
(2) The term "waste" also includes animal, fowl, and fish excrement, entrails, bones,
carcasses in whole or in part and dead animals, and any other refuse material not
otherwise classified herein.
STATE OF GEORGIA ORDINANCE NO.
COUNTY OF FULTON
Page 6 of 21
(Ord. No. 08-03-04, § 1(ch. 17, art. 1, § 1), 3-17-2008)
Sec. 46-3. - Collection fees.
All fees are listed in Sec. 46-70 Contract and Rental Fees.
Sec. 46-4. - Medical waste to be disposed of according to state and federal regulations.
Hospitals and health care professionals or other entities disposing of medical waste including,
but not limited to, any device used to puncture or lacerate skin, shall be disposed of in a manner
consistent with federal and state regulations.
(Ord. No. 08-03-04, § 1(ch. 17, art. 1, § 4), 3-17-2008)
Secs. 46-5—46-23. - Reserved
ARTICLE II. - LITTERING
Sec. 46-24. - Prohibited.
Secs. 46-25—46-43. - Reserved.
Sec. 46-24. - Prohibited.
(a) Unlawful acts defined.
(1) Public littering. It shall be unlawful for any person, in person or by his or her agent,
employee, or servant, to cast, throw, sweep, sift, or deposit in any manner in or upon any
public way or other public place in the city or the river, creek, branch, public water, drain,
sewer, or receiving basin within the city's jurisdiction, any kind of leaves, dirt, rubbish,
waste article, thing, or substance whatsoever, whether liquid or solid. Nor shall any person
cast, throw, sweep, sift, or deposit any of the aforementioned items anywhere within the
city's jurisdiction in such a manner that it may be carried or deposited in whole or in part,
by the action of the sun, wind, rain, or snow, into any of the aforementioned places;
provided that this section shall not apply to:
a. The deposit of material under a permit authorized by any city ordinance;
b. Goods, wares, or merchandise deposited upon any public way or other public
place temporarily, in the necessary course of trade, and removed therefrom within
two hours after being so deposited; or
c. Articles or things deposited in or conducted into the city sewer system through
lawful drains in accordance with the city ordinances relating thereto.
(2) Private littering. The acts described in subsection (a)(1) of this section shall also apply
to acts committed to or against private property without the consent of the owner.
(b) All business firms dispensing their product in cups, plates, wrappers, sacks, and other
similar forms of containers shall provide adequate metal or plastic containers upon the premises
STATE OF GEORGIA ORDINANCE NO.
COUNTY OF FULTON
Page 7 of 21
for collection of refuse. It shall be the express responsibility of all such business firms to collect
all cups, plates, wrappers, sacks, and other similar forms of containers dispensed by said
business that may discarded upon the premises or neighboring street and sidewalks. It further
shall be the responsibility of said business to collect the aforementioned items from the
premises of the neighboring property when the owners of the property specifically request and
authorize the business personnel to enter upon their property for that purpose.
(c) Any person who shall violate any of the provisions of, or who fails to perform any duty
imposed by this section or who violates any order or determination of the departm ent
promulgated pursuant to this article shall be punished as directed by law, and in addition
thereto, may be enjoined from continuing the violation. Each day a violation occurs shall
constitute a separate offense. Any willful and wanton violation of this subsection resulting in the
unlawful littering of the streets, sidewalks, and neighboring property shall be deemed a nuisance
and on conviction thereof by the city court, the mayor and city council may after a notice and a
hearing revoke the business license of the violator.
(Ord. No. 08-03-04, § 1(ch. 17, art. 1, § 5), 3-17-2008)
Secs. 46-25—46-43. - Reserved.
ARTICLE III. - COLLECTION SERVICES
DIVISION 1. - GENERALLY
DIVISION 2. - CONTRACTUAL PROVISIONS
DIVISION 3. - TERMINATION OF CONTRACT
DIVISION 4. - ADDITIONAL PROVISIONS
DIVISION 1. - GENERALLY
Secs. 46-44—46-62. - Reserved.
Secs. 46-44—46-62. - Reserved.
DIVISION 2. - CONTRACTUAL PROVISIONS
Sec. 46-63. - Authority.
Sec. 46-64. - Grant of nonexclusive contract.
Sec. 46-65. - Term.
Sec. 46-66. - Scope and nature of operation.
Sec. 46-67. - Vehicles to be covered and identified.
Sec. 46-68. - Regulation of containers.
Sec. 46-69. - Disposal of refuse.
STATE OF GEORGIA ORDINANCE NO.
COUNTY OF FULTON
Page 8 of 21
Sec. 46-70. - Contract and rental fees.
Sec. 46-71. - Compliance with law.
Sec. 46-72. - Insurance provided by company.
Sec. 46-73. - Indemnification and hold harmless.
Secs. 46-74—46-92. - Reserved.
Sec. 46-63. - Authority.
The city is empowered to contract with one or several third parties to collect and dispose of all
garbage, waste, commercial waste, and yard waste generated by the city. In addition, the city
may sell franchise rights in garbage collection to third parties.
(Ord. No. 08-03-04, § 1(ch. 17, art. 1, § 2), 3-17-2008)
Sec. 46-64. - Grant of nonexclusive contract.
The city shall hereby grant to companies a nonexclusive contract pursuant to the terms set forth
herein to use the public streets, alleys, roads and thoroughfares within the city for the purpose
of operating and engaging in the business of collecting and disposing of waste; including, but
not limited to, contracting with customers and providing service pursuant to contract therefore,
placing and servicing containers, operating trucks, vehicles and trailers, and such other
operations and activity as are customary and/or incidental to such business and service.
(Ord. No. 06-11-04, § 2, 11-21-2006; Ord. No. 07-11-54, § 2, 11-15-2007; Ord. No. 08-11-30, §
2, 11-17-2008; Ord. No. 10-11-84, § 2, 11-15-2010)
Sec. 46-65. - Term.
The term of any agreement shall be for a period of one year beginning on the effective date of
the contract execution and terminating on the first anniversary of said date. The company shall
begin performance under this contract immediately after the effective date of the contract
execution.
(Ord. No. 06-11-04, § 3, 11-21-2006; Ord. No. 07-11-54, § 3, 11-15-2007; Ord. No. 08-11-30, §
3, 11-17-2008; Ord. No. 10-11-84, § 3, 11-15-2010)
Editor's note— Section 3 of Ord. No. 10-11-84, adopted Nov. 15, 2010, changed the title of § 46-65 from "One
year in length" to "Term."
Sec. 46-66. - Scope and nature of operation.
(a) Residential and commercial refuse and waste. The company may collect and deliver for
disposal all residential and commercial refuse and waste accumulated within the corporate limits
of the city by the company's customers and the words "refuse", "garbage", "trash" and "waste"
when used in this article are used for convenience and, unless the context shows otherwise,
refer to yard trimmings, recycling, storm debris, garbage, and construction/demolition debris.
The company will furnish the personnel and equipment to collect refuse, provide the services
described herein, and as contracted for with its customers, in an efficient and businesslike
manner.
(b) Service provided. Company shall provide container, bin and other collection service for the
collection of residential and commercial refuse and waste according to the individual customer
agreements and applicable city regulations and shall make provision f or the special collection of
STATE OF GEORGIA ORDINANCE NO.
COUNTY OF FULTON
Page 9 of 21
such refuse and waste upon request. The company shall cause or require its equipment,
containers and bins to be kept and maintained in a manner to not cause or create a threat to the
public health and shall keep the same in a good state of repair.
(c) Collection operation. (a) Save and except as provided in this section, collection shall not
start before 7:30 a.m. or continue after 7:30 p.m. at any location. Company may request
variances to this collection period provided that collections: (i) are made in a manner that does
not cause or result in loud noise; and (ii) that are made at a location which will not cause the
disturbance of persons occupying the premises or neighboring property must first be confirmed
prior to the request. All requests for variances of times must be submitted to the city manager,
or his designee, and include documentation on the hardship created by the collection operation
period. Should such a collection operation variance be granted and the city receives two
complaints about the collection operation in any six-month time period, the city shall verify and
substantiate the factual basis for any complaints. Should the complaints be substantiated, the
collection operation variance will be revoked. The frequency of collection shall be determined by
each individual customer agreement.
(d) Holidays. The company shall observe such holidays as it, in its sole discretion, determines
appropriate. Notification must be given by the company to it's customers of the holidays and
resulting collection cycles.
(e) All companies must maintain a local customer service telephone number while conducting
business within the city. The telephone number must be publicly listed in a phone book and
available through directory assistance. Each company providing trash receptacles, whether
commercial or residential, must mark each receptacle with the company's name and telephone
number in letters not less than four inches in height. Each company must provide a mechanism
to accept, investigate, and respond to customer complaints. Companies are strongly
encouraged to use multi-media devices including interactive websites, e-mail, fax, and
automated telephone systems. Service calls received by the city as a result of noncompany
performance will result in the consideration of revocation of a nonexclusive contract or the city's
choice to not renew an existing agreement.
(f) Any invoice, bill, statement, or other device intended to request remittance by the customer
to the company of funds for payment of service shall include at a minimum, the company's
telephone number and payment methods available to customers.
(g) All companies providing residential service or service to residential multi-family units must
provide a recycling program to all customers. This program is intended to promote recycling
programs throughout the city by reducing the amount of waste landfilled. Commodities may be
commingled by the consumer and collected commingled by the hauler. Recycled commodities
which must be offered in all programs are as follows: brown, clear, and green glass; steel and
tin cans; aluminum cans, foil, pie pans, plastic items (#1, #2, and #3); cardboard, cereal boxes
and any nonwaxed paper containers; brown paper grocery bags; newspapers; magazines;
telephone books; junk mail; office papers; and school papers. Customers shall be charged for
the recycling program by the company regardless of utilization of the service. Haulers are to
include this service with their residential rate structure; however, the charge for recycling shall
be shown separate from other services provided.
(h) All companies providing commercial service must offer and promote a recycling program to
all customers. This program is intended to promote recycling programs throughout the city by
reducing the amount of waste landfilled.
STATE OF GEORGIA ORDINANCE NO.
COUNTY OF FULTON
Page 10 of 21
(i) All companies providing residential service must offer the collection of yard trimmings to all
customers. This program is intended to assist in the collection and disposal of grass clippings;
leaves; pine cones and needles; twigs, limbs, and trunks of trees meeting size limitations set by
company; bushes, brush, and all other general debris generated from the maintenance of
residential yards and lawns.
(j) It shall be the company's obligation and responsibility to educate all customers on industry
trends and best practices relating to solid waste collection, removal, and disposal. Such
education programs must consist of the following elements: Recycling; holiday schedules; new
customer information; and any service related items. All companies have the obligation to inform
customers of any noncollected trash or items placed for collection by the customer but not
covered under the agreement between the customer and the company. Further, it shall be the
company's obligation and responsibility to educate customers on days of collection for each
specific service provided. All education and communication between the company and
customers should promote the placement of residential collectibles at the curb the night before
pick-up. Receptacles, containers, or bagged materials shall not be left at the curb for longer
than a 24-hour period.
(Ord. No. 06-11-04, § 4, 11-21-2006; Ord. No. 07-11-54, § 4, 11-15-2007; Ord. No. 08-11-30, §
4, 11-17-2008; Ord. No. 10-11-84, § 4, 11-15-2010)
Sec. 46-67. - Vehicles to be covered and identified.
(a) All vehicles used by company for the collection and transportation of refuse shall be
covered at all times while loaded and in transit to prevent the blowing or scattering of refuse
onto the public streets or properties adjacent thereto, and such vehicles shall be clearly marked
with the company's name and telephone number in letters not less than four inches in height.
(b) Company must provide a comprehensive and proactive driver safety education program
which encourages safety on city streets. Such program must be demonstrated and conveyed to
the city. Company must comply with all other regulatory agencies, both local, state, or otherwise
with respect to commercial vehicle operation within the city. Service calls received by the city as
a result of noncompany performance will result in the consideration of revoking a nonexclusive
contract or the city's choice to not renew an existing agreement.
(c) Company must manage collection services delivered within the city to minimize the
number of vehicles on city roads. Coordination between haulers and service providers is
strongly encouraged to manage service vehicles on residential streets and neighborhoods.
(d) Should company utilize "scout" trucks to facilitate collection in residential areas where it is
not feasible to use standard collection vehicles, such vehicles must be covered at all times while
loaded and in transit should they exceed 30 miles per hour or be driven more than 300 yards on
a public street.
(Ord. No. 06-11-04, § 5, 11-21-2006; Ord. No. 07-11-54, § 5, 11-15-2007; Ord. No. 08-11-30, §
5, 11-17-2008; Ord. No. 10-11-84, § 5, 11-15-2010)
Sec. 46-68. - Regulation of containers.
The company may rent, lease, provide or define specifications for containers to any customer
within the corporate limits of the city for refuse storage and collection purposes subject to the
following requirements:
STATE OF GEORGIA ORDINANCE NO.
COUNTY OF FULTON
Page 11 of 21
(1) All containers shall be constructed and maintained according to industry practice;
(2) All containers shall be equipped with stable covers to prevent blowing or scattering of
refuse while being transported for disposal of their contents;
(3) All containers, save and except those being used for the purpose of collecting and
storing rubble, building and scrap construction materials, shall be equipped with covers
suitable to prevent blowing or scattering refuse and access to the container by animals
while the container is at the site designated by customer;
(4) All containers shall be periodically cleaned, maintained, serviced and kept in a
reasonably good state of repair, to prevent the unreasonable accumulation of refuse
residues, to avoid excessive odor and harborage for rodents and flies resulting from
excessive residues remaining after collection of containers;
(5) All containers shall be clearly marked with the company's name and telephone
number in letters not less than four inches in height;
(6) All containers shall not be on public rights-of-way and shall be located so as to not
interfere, block, obstruct or impede the normal use of any sidewalk, street, alley driveway
or fire lane, or to block, obstruct or impede sight distance at street, road or alley
intersections;
(7) All containers, bins, or other collection instruments must be kept free from graffiti,
rust, broken and nonoperational parts and pieces, and litter in and around the area; and
(8) It shall be the responsibility of each company to educate their customers on the
regulations of containers and maintain industry standards, policies, and procedures, which
promote an aesthetically pleasing environment in and around all refuse and waste
containers and receptacles.
(Ord. No. 06-11-04, § 6, 11-21-2006; Ord. No. 07-11-54, § 6, 11-15-2007; Ord. No. 08-11-30, §
6, 11-17-2008; Ord. No. 10-11-84, § 6, 11-15-2010)
Editor's note— Section 6 of Ord. No. 10-11-84, adopted Nov. 15, 2010, changed the title of § 46-68 from
"Container requirements" to "Regulation of containers."
Sec. 46-69. - Disposal of refuse.
The company will deliver all waste collected by it from it's customers within the city, except for
materials which the company may select for recovery and recycling, to a disposal facility that is
permitted by the EPD to accept such refuse and waste. Rules and regulations governing hours
of operation and disposal practices at the disposal facility will be observed and followed by the
company while engaged in the disposal of refuse pursuant to this article. Any items collected as
part of a recycling program must be delivered to a facility where recovery and reuse occurs.
Should any company choose to offload or dispose of materials collected by one vehicle into
another for transport to the final disposal facility, company shall make every available effort to
perform such refuse transfer on property owned by the company or privately owned property
where the company has an agreement with the property owner to perform such activity. In the
event any transfer occurs on public land, including streets, alleys, rights-of-ways, roads,
thoroughfares, avenues, parkways, expressways, or other areas designed and designated for
public travel, company shall make every effort available to clean the area after completion of the
STATE OF GEORGIA ORDINANCE NO.
COUNTY OF FULTON
Page 12 of 21
transfer to insure the area is maintained at the same or better level than if the area was not
used for this activity. In the event the city receives complaints regarding this practice, company
shall be required to cease from this activity at the location of the complaint.
(Ord. No. 06-11-04, § 7, 11-21-2006; Ord. No. 07-11-54, § 7, 11-15-2007; Ord. No. 08-11-30, §
7, 11-17-2008; Ord. No. 10-11-84, § 7, 11-15-2010)
Sec. 46-70. - Contract and rental fees.
Contract fee. The streets, rights-of-way, and public easements to be used by the company in
the operation of its business within the boundaries of the city as such boundaries now exist and
exist from time to time during the term of this contract, are valuable public pr operties acquired
and maintained by the city at great expense to its taxpayers, and the city will incur costs to
regulate and administer this article. In consideration of such benefits, costs and expenses, the
company shall through the term of its contract collect an "infrastructure maintenance fee" equal
to five percent of the company's gross receipts to customers within the city (exclusive of sales
tax). The term "infrastructure maintenance fee" shall be used on all bills, invoices, or statements
sent by any company to a customer under this article. This fee is applicable to haulers that are
providing trash and recycling collection to residential accounts as well as haulers serving
commercial accounts.
(1) Fees paid. The infrastructure maintenance fee shall be payable quarterly to the city
and delivered to the city in conjunction with a statement indicating the derivation and
calculation of such payment. Each such quarterly payment shall be due on the fifteenth
day of the second month following the end of the quarterly period for which said payment is
due. The quarterly payments shall be due on February 15, May 15, August 15, and
November 15 of each year during the term hereof, with the February 15 payment being
based upon the company's gross receipts during the calendar quarter ending the prior
December 31 and being payment for the rights and privileges granted hereunder for said
calendar quarter, the May 15 payment being based upon the company's gross receipts
during the calendar quarter ending the prior March 31 and being payment for the rights and
privileges granted hereunder for said calendar quarter, the August 15 payment being
based upon the company's gross receipts during the calendar quarter ending the prior
June 30 and being payment for the rights and privileges granted hereunder for said
calendar quarter, and the November 15 payment being based upon the company's gross
receipts during the calendar quarter ending the prior September 30 and being payment for
the rights and privileges granted hereunder for said calendar quarter. During the
implementation of this article, all bills generated by companies after December 1, 2006,
shall include the infrastructure maintenance fee. The city shall provide material relating to
the education and marketing efforts of the infrastructure maintenance fee as well as
provide education and training to company employees to ensure a consistent message is
conveyed to constituents of the City of Milton. For purposes of verifying the amount of such
fee, the books of the company shall at all reasonable times be subject to inspection by the
duly authorized representatives of the city. If the infrastructure maintenance fee is not paid by
the due date as set forth herein, the company from whom the fee was due shall be assessed and shall
pay a late fee in the amount of 10% of the amount not timely paid. In addition, all amounts
otherwise due, including late fees, shall accrue interest at the rate of 1.5% per calendar month
beginning 30 days after the original due date.
(2) No other rental fees. The contract fee shall be in lieu of any and all other city-imposed
rentals or compensation or contract, privilege, instrument, occupation, excise or revenue
STATE OF GEORGIA ORDINANCE NO.
COUNTY OF FULTON
Page 13 of 21
taxes or fees and all other exactions or charges (except ad valorem property taxes, special
assessments for local improvements, city sales tax, and such other charges for utility
services imposed uniformly upon persons, firms or corporations then engaged in business
within the city) or permits upon or relating to the business, revenue, installations and
systems, fixtures, and any other facilities of the company and all other property of the
company and its activities, or any part thereof, in the city which relate to the operations of
the company pursuant to this article; provided, that this shall not be construed to prevent
the company from being required to pay any and all applicable fees and charges in effect
from time to time for dumping at a landfill or transfer station.
(3) Credit for fees paid. Should the city not have the legal power to agree that the
payment of the foregoing sums of money shall be in lieu of contracts, fees, street or alley
rentals or charges, easement or ordinance fees or charges aforesaid, then city agrees that
it will apply so much of said sums of money paid as may be necessary to company's
obligations, if any, to pay any such contract, ordinance charges, other charges, fees,
rentals, easement, taxes or charges.
(4) Reporting. Any company providing service pursuant to this article or a resulting
contract shall from time to time provide the city with the necessary statistics regarding
waste collected and disposed which shall allow the city to comply with state reporting
requirements. Such information shall be in the manner and format requested by the city
and provide adequate details for the city to maintain compliance with local, state, federal,
and all other guidelines relating to solid waste collection, removal, and disposal.
(5) Dedicated revenue. The infrastructure maintenance fee collected by the city under
this article shall be dedicated to the following: (i) maintenance of the city's streets,
corridors, alleys, thoroughfares, and transportation routes; (ii) administration of contract
compliance between customers and companies where service is received as provided in
this article; and (iii) collection of litter, trash and hazardous waste materials within the city.
(Ord. No. 06-11-04, § 8, 11-21-2006; Ord. No. 07-11-54, § 8, 11-15-2007; Ord. No. 08-11-30, §
8, 11-17-2008; Ord. No. 10-11-84, § 8, 11-15-2010)
Editor's note— Section 8 of Ord. No. 10-11-84, adopted Nov. 15, 2010, changed the title of § 46-70 from
"Fees" to "Contract and rental fees."
Sec. 46-71. - Compliance with law.
The company shall conduct under this article in compliance with the material provisions of all
applicable local, state and federal laws, rules and regulations, and with the general
specifications contained in this article.
(Ord. No. 06-11-04, § 9, 11-21-2006; Ord. No. 07-11-54, § 9, 11-15-2007; Ord. No. 08-11-30, §
9, 11-17-2008; Ord. No. 10-11-84, § 9, 11-15-2010)
Editor's note— Section 9 of Ord. No. 10-11-84, adopted Nov. 15, 2010, changed the title of § 46-71 from
"Compliance with local, state and federal regulations required" to "Contract and rental fees."
Sec. 46-72. - Insurance provided by company.
(a) Minimum coverage requirements. The company shall maintain throughout the term of its
contract, property damage coverage, general liability insurance, and automobile liability
insurance for any automobile owned or operated by company, with an insurance company
STATE OF GEORGIA ORDINANCE NO.
COUNTY OF FULTON
Page 14 of 21
authorized and licensed to do business in the State of Georgia and acceptable to the city,
insuring against claims for liability and damages for the benefit of the city. The insurance shall
include the city as an additional insured. General liability coverage insurance under this section
shall be a minimum of $1,000,000.00 per occurrence with a $2,000,000.00 aggregate.
Automobile liability insurance under this section shall, at a minimum, have limits of
$1,000,000.00 for each occurrence. Additionally, umbrella coverage of $1,000,000.00 on both
automobile liability insurance and general liability insurance is required.
(b) Employer's liability. If the company is required by Georgia Statute, the company shall
maintain throughout the term of the contract resulting from this article the requisite statutory
workers' compensation insurance, and a minimum of $100,000.00 employer's liability insurance.
Company shall be required to show compliance to this section by submitting documentation of
such coverage from an approved carrier licensed in the State of Georgia, or documentation
explaining the exemption from employer's liability insurance should they not meet the state
requirements to carry such coverage.
(c) Certificate of insurance. The insurance policy, or policies, obtained by the company in
compliance with this section shall be approved by the city manager or his designee in the city
manager's or his designee's reasonable discretion, and the certificate of insurance for the
insurance policy shall be filed and maintained with the city during the term of the contract
resulting from this article with a copy of the endorsement required under subsection (d) to be
attached or made a part of such certificate.
(d) Endorsements. All insurance policies maintained pursuant to this article shall contain the
following conditions by endorsement:
(1) Additional insured. The city shall be an additional insured and the term "owner" and
"city" shall include all authorities, boards, bureaus, commissions, divisions, departments
and offices of the city and the individual members, officers, employees and agents thereof
in their official capacities and/or while acting on behalf of the city.
(2) Other insurance clause. The policy clause "other insurance" shall not apply to the city
when the city is an insured on the policy.
(3) No recourse. Companies issuing the insurance policies shall not recourse against the
city for payment of any premium or assessment.
(e) Increase requirements. The city may choose to amend this article to make reasonable
adjustments to the insurance coverage and their limits when deemed necessary and prudent
based upon changes in statutory law, court decisions, or the claims history of the industry.
(Ord. No. 06-11-04, § 10, 11-21-2006; Ord. No. 07-11-54, § 10, 11-15-2007; Ord. No. 08-11-30,
§ 10, 11-17-2008; Ord. No. 10-11-84, § 10, 11-15-2010)
Editor's note— Section 10 of Ord. No. 10-11-84, adopted Nov. 15, 2010, changed the title of § 46-72 from
"Company to provide insurance" to "Insurance provided by company."
Sec. 46-73. - Indemnification and hold harmless.
The company agrees to indemnify, defend and save harmless the city, its agents, officers and
employees, against and from any and all claims by or on behalf of any person, firm, corporation
or other entity arising from any negligent act or omission or willful misconduct of the company,
or any of its agents, contractors, servants, employees or contractors, and from and against all
STATE OF GEORGIA ORDINANCE NO.
COUNTY OF FULTON
Page 15 of 21
costs, counsel fees, expenses and liabilities incurred in or about any such claim or proceeding
brought thereon. Promptly after receipt from any third party by city of a written notice of any
demand, claim or circumstance that, immediately or with the lapse of time, would give rise to a
claim or the commencement (or threatened commencement) of any action, proceeding or
investigation (an "asserted claim") that may result in losses for which indemnification may be
sought hereunder, the city shall give written notice thereof (the "claims notice") to the company
provided, however, that a failure to give such notice shall not prejudice the city's right to
indemnification hereunder except to the extent that the company is actually and materially
prejudiced thereby. The claims notice shall describe the asserted claim in reasonable detail, and
shall indicate the amount (estimated, if necessary) of the losses that have been or may be
suffered by the city when such information is available. The company may elect to com promise
or defend, at its own expense and by its own counsel, any asserted claim. If the company elects
to compromise or defend such asserted claim, it shall, within 20 business days following its
receipt of the claims notice (or sooner, if the nature of t he asserted claim so required) notify the
city of its intent to do so, and the city shall cooperate, at the expense of the company, in the
compromise of, or defense against, such asserted claim. If the company elects not to
compromise or defend the asserted claim, fails to notify the city of its election as herein provided
or contests its obligation to provide indemnification under this agreement, the city may pay,
compromise or defend such asserted claim with all reasonable costs and expenses borne by
the company. Notwithstanding the foregoing, neither the company nor the city may settle or
compromise any claim without the consent of the other party; provided, however, that such
consent to settlement or compromise shall not be unreasonably withheld. In any event, the city
and the company may participate at their own expense, in the defense of such asserted claim. If
the company chooses to defend any asserted claim, the city shall make available to the
company any books, records or other documents within its control that are necessary or
appropriate for such defense.
(Ord. No. 06-11-04, § 11, 11-21-2006; Ord. No. 07-11-54, § 11, 11-15-2007; Ord. No. 08-11-30,
§ 11, 11-17-2008; Ord. No. 10-11-84, § 11, 11-15-2010)
Editor's note— Section 11 of Ord. No. 10-11-84, adopted Nov. 15, 2010, changed the title of § 46-73 from
"Company to indemnify city; defense of suits" to "Indemnification and hold harmless."
Secs. 46-74—46-92. - Reserved.
DIVISION 3. - TERMINATION OF CONTRACT
Sec. 46-93. - Forfeiture and terminating of contract.
Sec. 46-94. - Transfer, sale or conveyance by company.
Sec. 46-95. - Foreclosure.
Sec. 46-96. - Receivership and bankruptcy.
Secs. 46-97—46-115. - Reserved.
Sec. 46-93. - Forfeiture and terminating of contract.
(a) Material breach. In addition to all other rights and powers retained by the city under this
article or otherwise, the city reserves the right to declare any resulting contract from this article
forfeited and to terminate the contract and all rights and privileges of the company hereunder in
STATE OF GEORGIA ORDINANCE NO.
COUNTY OF FULTON
Page 16 of 21
the event of a material breach of the terms and conditions hereof. A material breach by
company shall include, but shall not be limited to, the following:
(1) Fees. Failure to pay the fees set out in section 46-70
(2) Telephone listings. Failure to keep and maintain a local telephone listing and office or
answering service that is available by phone without long distance charge during regular
business hours for service to the public, and which telephone or office shall, at minimum,
provide and maintain the following services:
a. Coordinate and provide information concerning deposits, payments and
accounts to customers and prospective customers;
b. Respond to customer and prospective customer questions and issues about
billings, accounts, deposits and services;
c. Coordination with the city with respect to private sector and public works projects
and issues related to or affecting the company's operation; and
d. Immediate response, upon request, to police, fire and other emergency
situations in which the public health and safety requires action with respect to or
assistance regarding company's property.
(3) Failure to provide service. Failure to materially provide the services provided for in
this article;
(4) Misrepresentation. Material misrepresentation of fact in the application for or
negotiation of any contract resulting from this article; or
(5) Conviction. Conviction of any director, officer, employee, or agent of the company of
the offense of bribery or fraud connected with or resulting from the award of a contract
from this article.
(b) Operation information. Material misrepresentation of fact knowingly made to the city with
respect to or regarding company's operations, management, revenues, services or reports
required pursuant to this article.
(c) Economic hardship. Company shall not be excused by mere economic hardship nor by
misfeasance or malfeasance of its directors, officers or employees.
(d) Forfeiture and proceedings. Any unwarranted and intentional neglect, failure or refusal of
the company to comply with any material provision of this article or resulting contract within 30
days after written notice from city setting forth the specific provision and noncompliance, said
notice to be mailed to company at its principal place of business by certified mail, return receipt
requested, shall be deemed a breach of this article, and the city council, upon notice to
company and hearing, may, for good cause declare a contract forfeited and exclude company
from further use of the streets of the city under this article, and the company shall thereupon
surrender all rights in and under this article and contract.
(1) Proceedings. In order for the city to declare a forfeiture pursuant to subsections (a),
(b), (c), (d), the city shall make a written demand that the company comply with any such
provision, rule, order, or determination under or pursuant to this article. If such violatio n by
the company continues for a period of 30 days following such written demand without
STATE OF GEORGIA ORDINANCE NO.
COUNTY OF FULTON
Page 17 of 21
written proof that the corrective action has been taken or is being actively and
expeditiously pursued, the council may take under consideration the issue of termination of
the resulting contract from this article. The city shall cause to be served upon company, at
least 20 days prior to the date of such a council meeting, a written notice of intent to
request such termination and the time and place of the meeting. Notice shall be given of
the meeting and issue which the council is to consider.
(2) Hearing. The council shall hear and consider the issue, hear any person interested
therein, and shall determine whether or not any violation by the company has occurred.
(3) Forfeiture. If the council shall determine that the violation by the company was the
fault of company and within its control, the council may declare the contract forfeited and
terminated, or the council may grant to company a period of time for compliance.
(Ord. No. 06-11-04, § 12, 11-21-2006; Ord. No. 07-11-54, § 12, 11-15-2007; Ord. No. 08-11-30,
§ 12, 11-17-2008; Ord. No. 10-11-84, § 12, 11-15-2010)
Editor's note— Section 12 of Ord. No. 10-11-84, adopted Nov. 15, 2010, changed the title of § 46-93 from
"Forfeiture" to "Forfeiture and terminating of contract."
Sec. 46-94. - Transfer, sale or conveyance by company.
The company shall not transfer, assign, sell or convey any rights granted under any resulting
contract from this article without the prior approval of the city council; provided that this section
shall not apply to vehicles, replacements, maintenance, upgrades or modifications of
equipment, machinery, containers and buildings by company for the purpose of maintaining and
continuing its operation within the city; and provided further that company may, in its sole
discretion and upon written notice to the city, transfer, assign, sell or convey their rights under
this article to a wholly owned subsidiary of the company or to an affiliated entity that is under
common control with company (i.e., has a common parent entity).
(Ord. No. 06-11-04, § 13, 11-21-2006; Ord. No. 07-11-54, § 13, 11-15-2007; Ord. No. 08-11-30,
§ 13, 11-17-2008; Ord. No. 10-11-84, § 13, 11-15-2010)
Editor's note— Section 13 of Ord. No. 10-11-84, adopted Nov. 15, 2010, changed the title of § 46-94 from
"Transfer, sale or conveyance by company prohibited; exceptions" to "Transfer, sale or con veyance by
company."
Sec. 46-95. - Foreclosure.
upon the foreclosure or other judicial sale of all or a substantial part of the assets and property
of the company used for and dedicated to providing service pursuant to this article, the company
shall notify the city of such fact, and such notification shall by treated as a notification that a
change in control of the company has taken place and the provisions of this article governing
the consent of the council to such change in control of the company shall apply. Upon the
foreclosure or judicial sale, or the leasing of all or a substantial part of the property and assets of
the company dedicated to and used for the purposes of providing service pursuant to this
article, without the prior approval of the council, the council may, upon hearing and notice,
terminate any contract resulting from this article.
(Ord. No. 06-11-04, § 14, 11-21-2006; Ord. No. 07-11-54, § 14, 11-15-2007; Ord. No. 08-11-30,
§ 14, 11-17-2008; Ord. No. 10-11-84, § 14, 11-15-2010)
Editor's note— Section 14 of Ord. No. 10-11-84, adopted Nov. 15, 2010, changed the title of § 46-95 from
STATE OF GEORGIA ORDINANCE NO.
COUNTY OF FULTON
Page 18 of 21
"Foreclosure or judicial sale" to "Foreclosure."
Sec. 46-96. - Receivership and bankruptcy.
Cancellation option. The council shall have the right to cancel any contract resulting from this
article 120 days after the appointment of a receiver or trustee to take over and conduct the
business of the company, whether in receivership, reorganization, bankruptcy, other action or
preceding, whether voluntary or involuntary, unless such receivership or trusteeship shall have
been vacated prior to the expiration of said 120 days, unless:
(1) Trustee compliance. Within 120 days after his election or appointment, such receiver
trustee shall have fully complied with all the provisions of this article and remedied all
defaults thereunder; or
(2) Trustee agreement. Such receiver or trustee, within 120 days, shall have executed an
agreement, duly-approved by the court having jurisdiction, whereby the receiver or trustee
assumes and agrees to be bound by each and every provision of this article granted to the
company.
(Ord. No. 06-11-04, § 15, 11-21-2006; Ord. No. 07-11-54, § 15, 11-15-2007; Ord. No. 08-11-30,
§ 15, 11-17-2008; Ord. No. 10-11-84, § 15, 11-15-2010)
Secs. 46-97—46-115. - Reserved.
DIVISION 4. - ADDITIONAL PROVISIONS
Sec. 46-116. - Retention of city police powers.
Sec. 46-117. - Amendments of city ordinances and regulations.
Sec. 46-118. - Taxes.
Sec. 46-119. - Public necessity.
Sec. 46-120. - No suspension of laws.
Sec. 46-121. - Peaceful employment.
Sec. 46-122. - Endorsements and records.
Sec. 46-123. - Acceptance by company.
Sec. 46-116. - Retention of city police powers.
The city retains and reserves all of its police powers and the rights, privileges, and immunities
that it now has under the law to regulate, patrol and police the streets and public ways within the
city, and the granting of any contract as a result of this article shall in no way interfere with the
improvements to, or maintenance of, any street, alley or public way, and the rights of the city to
use said streets, alleys and public ways.
(Ord. No. 06-11-04, § 16, 11-21-2006; Ord. No. 07-11-54, § 16, 11-15-2007; Ord. No. 08-11-30,
§ 16, 11-17-2008; Ord. No. 10-11-84, § 16, 11-15-2010)
Sec. 46-117. - Amendments of city ordinances and regulations.
The city reserves the right and power, pursuant to its police power, after due notice to company,
to modify, amend, alter, change or eliminate any rules, regulations, fees, charges and rates of
STATE OF GEORGIA ORDINANCE NO.
COUNTY OF FULTON
Page 19 of 21
the city, and to impose such additional conditions, that are not inconsistent with the rights
granted by this article, upon the company and all persons, firms or entities of the same class as
the company, as may be reasonably necessary in the discretion of the city council to preserve
and protect the public, health, safety and welfare and/or insure adequate service to the public.
(Ord. No. 06-11-04, § 17, 11-21-2006; Ord. No. 07-11-54, § 17, 11-15-2007; Ord. No. 08-11-30,
§ 17 11-17-2008; Ord. No. 10-11-84, § 17, 11-15-2010)
Editor's note— Section 17 of Ord. No. 10-11-84, adopted Nov. 15, 2010, changed the title of § 46-117 from
"Reservation to amend city ordinances and regulations" to "Amendments of city ordinances and regulations."
Sec. 46-118. - Taxes.
The company shall promptly pay all lawful ad valorem taxes, levies and assessments, if any,
that are imposed upon the company. Absent an administrative or judicial challenge, or appeal,
the failure to pay any such tax, levy or assessment shall be a breach of this article.
(Ord. No. 06-11-04, § 18, 11-21-2006; Ord. No. 07-11-54, § 18, 11-15-2007; Ord. No. 08-11-30,
§ 18, 11-17-2008; Ord. No. 10-11-84, § 18, 11-15-2010)
Editor's note— Section 18 of Ord. No. 10-11-84, adopted Nov. 15, 2010, changed the title of § 46-118 from
"Payment of taxes required" to "Taxes."
Sec. 46-119. - Public necessity.
The council hereby finds and declares that the public welfare, convenience and necessity
require the service which is to be furnished by the company.
(Ord. No. 06-11-04, § 19, 11-21-2006; Ord. No. 07-11-54, § 19, 11-15-2007; Ord. No. 08-11-30,
§ 19, 11-17-2008; Ord. No. 10-11-84, § 19, 11-15-2010)
Editor's note— Section 19 of Ord. No. 10-11-84, adopted Nov. 15, 2010, changed the title of § 46-119 from
"Disposal of solid waste deemed public necessity" to "Public necessity."
Sec. 46-120. - No suspension of laws.
All provisions of the ordinances of the city as now existing or as may be amended from time to
time, and all provisions of the statutes of the State of Georgia applicable to general law cities
shall be a part of any resulting contract from this article as fully as if the same had been
expressly stated herein, and said the city retains and may exercise all of the governmental and
police powers and all other rights and powers not directly inconsistent with the terms, conditions
and provisions of this article.
(Ord. No. 06-11-04, § 22, 11-21-2006; Ord. No. 07-11-54, § 22, 11-15-2007; Ord. No. 08-11-30,
§ 22, 11-17-2008; Ord. No. 10-11-84, § 22, 11-15-2010)
Editor's note— Section 22 of Ord. No. 10-11-84, adopted Nov. 15, 2010, changed the title of § 46-120 from
"City ordinances and state law considered part of contract" to "No suspension of laws."
Sec. 46-121. - Peaceful employment.
From and after the effective date of this article, the city and the company shall be and are
hereby authorized and entitled to act in reliance upon the terms, conditions and provisions of
this article and any resulting contract and, subject thereto, the company shall collect rates for
service, operate and conduct its business and work within the city, and enjoy the benefits and
STATE OF GEORGIA ORDINANCE NO.
COUNTY OF FULTON
Page 20 of 21
privileges of this article during the term hereof.
(Ord. No. 06-11-04, § 23, 11-21-2006; Ord. No. 07-11-54, § 23, 11-15-2007; Ord. No. 08-11-30,
§ 23, 11-17-2008; Ord. No. 10-11-84, § 23, 11-15-2010)
Editor's note— Section 23 of Ord. No. 10-11-84, adopted Nov. 15, 2010, changed the title of § 46-121 from
"City and company to rely on this chapter" to "Peaceful employment."
Sec. 46-122. - Endorsements and records.
The city clerk is directed to make endorsements as appropriate over his/her official hand and
the seal of the city on the form provided at the conclusion of this article, for the public record and
convenience of the citizens, of the date upon which this article is finally passed and adopted.
(Ord. No. 06-11-04, § 25, 11-21-2006; Ord. No. 07-11-54, § 25, 11-15-2007; Ord. No. 08-11-30,
§ 25, 11-17-2008; Ord. No. 10-11-84, § 25, 11-15-2010)
Sec. 46-123. - Acceptance by company.
Within 30 days after the passage of this article, or within 30 days of establishing a business
within the corporate city limits, all companies operating a residential or commercial refuse waste
service shall file with the city its acceptance of the terms and provisions of this article, and
request for contract. The acceptance and request for contract shall be in writing on the
company's letterhead and provide as follows:
City of Milton
Attention: City Manager
13000 Deerfield Parkway,
Suite 107A/B
Milton, GA 30004
____________ (the "Company"), acting by and through an officer who is acting within its
official capacity and authority, hereby accepts the City of Milton Solid Waste Ordinance to
operate a refuse and solid waste collection and disposal system within the City as said
Ordinance is set forth and provided herewith. The Company agrees to be bound and
governed by each term, provision and condition of the Ordinance, to accept and to give the
benefits provided by the Ordinance, and to perform each service and duty set forth and
provided for in the Ordinance in a businesslike and reasonable manner and in compliance
with the Ordinance.
Company: .....
By: .....
Printed Name: .....
Title: .....
(Ord. No. 06-11-04, § 26, 11-21-2006; Ord. No. 07-11-54, § 26, 11-15-2007; Ord. No. 08-11-30,
§ 26, 11-17-2008; Ord. No. 10-11-84, § 26, 11-15-2010)
STATE OF GEORGIA ORDINANCE NO.
COUNTY OF FULTON
Page 21 of 21
Editor's note— Section 26 of Ord. No. 10-11-84, adopted Nov. 15, 2010, changed the title of § 46-123 from
"Written acceptance of company required" to "Acceptance by company."
46-124. – Decal
Upon satisfactory compliance with the requirements set forth in this Chapter in order to allow the
company to collect and/or dispose of waste, garbage and/or refuse, the City shall issue to the company a
decal designating the company as an approved Milton hauler in compliance with the City’s solid waste
ordinance.
City of Milton
13000 Deerfield Parkway, Milton, Georgia 30004
1
To: Honorable Mayor and City Council Members
From: Sudie Gordon, City Clerk
Date: Submitted on October 22, 2012 for First Presentation on the November 5, 2012
Regular Council Meeting and Unfinished Business at November 19, 2012
Regular Council Meeting
Agenda Item: Consideration of the Approval of An Ordinance Amending Ordinance No. 09-09-
49 Adopting and Amending Rules and Procedures for the City Council Meetings
and Public Hearings for the City of Milton, Georgia; and for Other Purposes
____________________________________________________________________________
Department Recommendation:
Approve the attached ordinance to amend the Rules and Procedures of public meetings held by
the City of Milton, providing for an orderly process of conducting business, and for other
purposes.
Executive Summary:
Governments traditionally adopt Rules of Procedure, or operation standards and protocol which
facilitate the orderly conduct of public meetings. Such documents outline how meetings will be
conducted and stand as the backbone for staff and elected officials to refer to in one of the most
critical functions of any government – soliciting public input and conducting public meetings.
The rules and procedures were first adopted by the City of Milton on November 21, 2006 and
amendments were adopted on January 18, 2007, June 21, 2007, January 10, 2008, September
15, 2008, and September 9, 2009.
The Rules of Procedure were drafted in accordance with legislative changes to Title 50, Chapter
14, House Bill 397 (April 17, 2012). Amendments to the Rules and Procedures are
recommended, annotated (redlined) and attached.
Funding and Fiscal Impact:
N/A
Alternatives:
N/A
Legal Review:
Ken Jarrard – Jarrard & Davis (October, 2012)
Concurrent Review:
Chris Lagerbloom, City Manager
Attachment(s):
Rules and Procedures for the City Council Meetings and Public Hearings
City of Milton
13000 Deerfield Parkway, Suite 107, Milton Georgia 30004
Amended on January 18, 2007
Second Amendment on June 21, 2007
Third Amendment on January 10, 2008
Fourth Amendment on September 15, 2008
Fifth Amendment on September 9, 2009
Sixth Amendment on November 19, 2012
Page 1 of 9
CITY OF MILTON, GEORGIA
RULES AND PROCEDURES FOR THE
CITY COUNCIL MEETINGS AND
PUBLIC HEARINGS
Section 1. Open Meetings. All meetings of the Mayor and City Council shall be held in
accordance with the provisions of O.C.G.A. 50-14-1, et. seq. otherwise known at the Open
Meetings Act (the “Act”). Title 50, Chapter 14 of the Official Code of Georgia Annotated. The
public shall at all times be afforded access to all meetings other than executive sessions as
defined at O.C.G.A 50-14-1(a)(2) and those assemblies exempt from the Act per O.C.G.A. 50-
14-3(a).
Section 2. Executive Sessions. Executive sessions of the council may be held for all purposes
set forth in O.C.G.A. 50-14-3(b)(1), (2), and (4). for the purpose of discussing topics exempted
from public access requirements by Title 50, Chapter 14 of the Official Code of Georgia
Annotated. Any portion of a the meeting or assembly not subject to the Act that does not fall
within the purview of O.C.G.A. 50-14-3(b)(1), (2) and (4) any such exemptions shall be open to
the public.
(a) Non-Exempt Topics. If an agency a council member initiates a discussion during
executive session that falls outside the scope of those topics that may be discussed
pursuant to O.C.G.A. 50-14-3(b)(1), (2) and (4) the mayor must immediately rule the
discussion out of order. attempts to discuss a non-exempt topic during an executive
session, the mayor, city manager, or city clerk shall immediately rule that council
member out of order and such discussion shall cease. If the impermissible discussion
continues, the chairman must adjourn the meeting. If the council member persists in
discussing the non-exempt topic, the mayor shall adjourn the meeting immediately.
(b) Procedure For Entering Into Executive Sessions. No executive session shall be
held except pursuant to a majority affirmative vote of the city council taken in a public
meeting. The minutes of the public meeting shall reflect the names of the council
members present, those voting for the executive session, and the specific reasons for the
executive session. All votes taken on items discussed in executive session shall be taken
in an open meeting.
(c) Executive Session Minutes. Executive session minutes shall be kept in accord with
O.C.G.A. 50-14-1(e)(2)(C). Executive session minutes shall not be open to the public.
(1) Executive Sessions Discussing Real Estate Acquisition. Minutes of an
executive session in which the acquisition of real estate is discussed shall be taken
Formatted: Font: Italic
Formatted: Font: Not Bold
City of Milton
13000 Deerfield Parkway, Suite 107, Milton Georgia 30004
Amended on January 18, 2007
Second Amendment on June 21, 2007
Third Amendment on January 10, 2008
Fourth Amendment on September 15, 2008
Fifth Amendment on September 9, 2009
Sixth Amendment on November 19, 2012
Page 2 of 9
in the same manner as minutes of an open meeting (Section 21 of this document)
and available for public inspection except that any portion of the minutes
identifying the real estate shall be redacted until such time as the action for
acquisition of the real estate is taken, or decision is reached that the proposed
acquisition is to be terminated, abandoned or until court actions are to be initiated
through the use of condemnation proceedings.
(2) Other Executive Sessions. Minutes of executive sessions devoted to any topic
other than land acquisition may be maintained by the clerk at the direction of the
mayor. Any such minutes shall be maintained in a confidential file and shall not be
subject to disclosure, except that disclosure of such portions of minutes identifying
real estate to be acquired by the city council may only be delayed until such time as
the acquisition of the real estate has been completed, terminated, or abandoned or
court proceedings have been initiated.
(d) Mayor or Presiding Officer Affidavit. The mayor or other presiding officer shall
execute an affidavit stating, under oath, that the executive session was devoted to topics
exempt from the public access requirements. The affidavit shall include the specific
exemption to the open meetings law. The affidavit shall be notarized and filed with the
minutes of the open meeting.
[Cross Reference: O.C.G.A. §§ 50-14-2, 5-14-3 and 50-14-4]
Section 3. Visual and Sound Recordings. Visual, sound, and visual and sound recordings
shall be permitted for all public hearings.
[Cross-reference: O.C.G.A. § 50-14-1(c)]
Section 4. Quorum. A quorum must be physically present at the site where the meeting is to be
held for conducting meetings of the city council. A quorum is four (4) members of the city
council, including the Mayor. It is the duty of the mayor or presiding officer to enforce this rule.
Any council member may raise a point of order directed to the mayor or presiding officer if he or
she believes that a quorum is not present. If, during the course of a meeting, a council member
or council members leave and a quorum no longer exists, the meeting may not continue. If a
quorum is not attained within thirty minutes, the meeting may be rescheduled by the mayor or
presiding officer with the approval of the council members physically present at the site of the
meeting.
Section 4.5 Telephonic Participation. The city council is authorized to conduct meetings by
teleconference so long as the notice required by the Act is provided and means are afforded for
the public to have simultaneous access to the teleconference meeting. On any other occasion of
the meeting of council, and so long as a quorum is present in person, a council member may
participate by teleconference if necessary due to reasons of health or absence from City limi ts so
long as the other requirements of the Act are met. Absent emergency conditions or the written
Formatted: Indent: Left: 0.88"
Formatted: Font: Bold
City of Milton
13000 Deerfield Parkway, Suite 107, Milton Georgia 30004
Amended on January 18, 2007
Second Amendment on June 21, 2007
Third Amendment on January 10, 2008
Fourth Amendment on September 15, 2008
Fifth Amendment on September 9, 2009
Sixth Amendment on November 19, 2012
Page 3 of 9
opinion of a physician or other health professional that reasons of health prevent a council
member’s physical presence, no member shall participate by teleconference more than twice in
one calendar year.
[Cross reference O.C.G.A. 50-14-1(g)]
Section 5. Mayor. The presiding officer of the city council shall be the mayor. As presiding
officer, he or she is responsible for the orderly conduct of the meeting. In order to fulfill this
duty, the mayor shall enforce the rules of procedure that are adopted by the city council. The
mayor shall be impartial and conduct the meetings in a fair manner. The mayor may introduce
motions and second motions, including a motion or second to go into executive session. as
authorized by Section 2 of this ordinance. The mayor shall be a voting member of the elected
body.
Section 6. Mayor Pro-Tempore. The council shall select a mayor pro-tempore from the
council members at the first meeting of the calendar year following each election, provided no
runoff election is required. In the event a runoff election is required, a mayor pro -tempore shall
be selected at the first meeting after a full mayor and city council are seated. The mayor pro-
tempore shall fulfill the duties of the mayor if the mayor is not in attendance. During the
absence or physical or mental disability of the mayor for any cause, the mayor pro-tempore of
the city council, or in such person’s absence or disability for any reason, any one of the
councilmembers chosen by a majority vote of the city council, shall be clothed with all the rights
and privileges of the mayor and shall perform the official duties of the office of the mayor so
long as such absence or disability shall continue, except that the mayor pro-tempore shall not
have the mayor’s veto power except in the case of physical or mental disability of the mayor. A
councilmember acting as mayor shall have only one vote. Any such absence or disabil ity shall
be declared by majority vote of all councilmembers. The mayor pro-tempore or selected
councilmember shall sign all contracts and ordinances in which the mayor has a disqualifying
financial interest. consistent with the process outlined in the City of Milton Charter, sections 3.29
and 3.30.
Section 7. Presiding Officer. If the mayor and the mayor pro-tempore are absent or otherwise
unable to serve as presiding officer at a meeting and a quorum of council members are present,
the remaining council members shall select a council member to serve as presiding officer of the
meeting until either the mayor or mayor pro-tempore is present at the meeting.
Section 8. Parliamentarian. The city attorney shall serve as the parliamentarian for city
council meetings.
Section 9. Amendments to the Rules. Any proposed amendments to the rules of order shall be
submitted by a council member in writing to the city manager three business days before a
regular meeting of the city council. The proposed amendment shall be included in the agenda for
Formatted: Font: Italic
City of Milton
13000 Deerfield Parkway, Suite 107, Milton Georgia 30004
Amended on January 18, 2007
Second Amendment on June 21, 2007
Third Amendment on January 10, 2008
Fourth Amendment on September 15, 2008
Fifth Amendment on September 9, 2009
Sixth Amendment on November 19, 2012
Page 4 of 9
that meeting and distributed to all council members. All amendments require a majority vote of
the Council physically present in order to be adopted.
Section 10. Suspending the Rules of Order. Rules of order may be suspended in the case of
an emergency. A motion to suspend the rules requires a second, is debatable, and requires
unanimous approval of the council. Rules governing quorums (Section 4), voting methods and
requirements (Section 17 and Section 18), the notification to council members of meetings
(Section 12(a) and (b)) and rules necessary for compliance with state law may not be suspended;
provided, however, that, in the event that a state of emergency is declared by the Governor or
other authorized state official, the city council may waive time-consuming procedures and
formalities imposed by state law.
[Cross-reference: O.C.G.A. § 38-3-54]
Section 11. Regular Meetings. Regular meetings of the city council shall be held at 6:00 p.m.
on the first and third Monday of each month. All regular meetings shall be held at City Hall in
the Mayor and Council meeting room. unless provisions of Section 12(a) are applied. A notice
containing the foregoing information shall be posted and maintained in a conspicuous place
available to the general public at the regular meeting place of the city council. Notice of regular
meetings must be so posted at least one week in advance and will also be posted on the city
website.
[Cross-reference: O.C.G. A. § 50-14-1(d)(1)]
Section 12. Meetings Other Than Regular Meetings. The city council may meet at times and
locations other than those regularly scheduled meetings.
(a) Special Meetings and Rescheduled Regular Meetings. A regular meeting may be
canceled, rescheduled, recessed or moved to a new location within the city site by the
mayor and city council for any reason. Other special meetings may be scheduled by the
mayor or at the request of at least three (3) four (4) council members. Whenever a
rescheduled regular meeting or any other special meeting is to be held at a time or place
other than the regularly scheduled time or place, written notice of the change shall be
posted for at least 24 hours at the regular meeting place as well as the physical location
where the meeting is to be held, if such location is different than the regular meeting
place. In addition, written or oral notice shall be given by the clerk at least 24 hours in
advance of the meeting to the legal organ of the city. Specially called meetings and
emergency meetings with less than 24 hours’ notice are authorized and may be called in
accord with O.C.G.A. 50-14-1(d)(3)., as well as to each member of the city governing
authority.
[Cross-reference: O.C.G.A. § 50-14-1(d)]
(b) Meetings With Less Than 24 Hours Notice. When emergency circumstances occur,
the city council may hold a meeting with less than 24 hours notice to the public. When
City of Milton
13000 Deerfield Parkway, Suite 107, Milton Georgia 30004
Amended on January 18, 2007
Second Amendment on June 21, 2007
Third Amendment on January 10, 2008
Fourth Amendment on September 15, 2008
Fifth Amendment on September 9, 2009
Sixth Amendment on November 19, 2012
Page 5 of 9
such meetings are to be held, the clerk shall provide notice to the legal organ of the city
and to each member of the city governing authority as soon as possible. The notice shall
include the subjects expected to be considered at the meeting. In addition, the minutes
shall reflect the reason for the emergency meeting and the nature of the notice given to
the media.
[Cross-reference: O.C.G.A. § 50-14-1-(d)]
(c) Meetings During a State of Emergency. When it is imprudent, inexpedient or
impossible to hold city council meetings at the regular meeting place due to emergency or
disaster resulting from manmade or natural causes, as declared by the Governor or other
authorized state official, the city council may meet anywhere within or outside of the city.
Such a meeting may be called by the mayor or by any three (3) council members. At the
meeting, the council members shall establish and designate emergency temporary
meeting locations where public business may be transacted during the emergency. Any
action taken in such meetings shall have the same effect as if performed at the regular
meeting site.
[Cross reference: O.C.G.A. §§ 50-14-1(d), 38-3-54, 38-3-55]
(d) Work Sessions. Meetings to discuss City business where no substantive formal votes
are taken shall be scheduled in regular intervals to facilitate discussion on important
topics. Work Sessions shall be held at 6:00 p.m. on the second Monday of each month.
All work session meetings shall be held at City Hall in the Mayor and Council meeting
room. A notice containing the foregoing information shall be posted and maintained in a
conspicuous place available to the general public at the regular meeting place of the city
council. Public input at work sessions will be allowed for ten (10) minutes per item, two
(2) minutes per person with the Mayor having flexibility to extend the time if needed.
The Council shall be authorized to conduct an executive session during a work session.
Section 13. Order of Business. All regular city council meetings shall substantially follow an
established order of business. The order shall be as follows:
1. Call to Order
2. Roll Call
3.4. Pledge of Allegiance
4.5. Approval of Meeting Agenda
5.6. Public Comment
6.7. Consent Agenda
7.8. Reports and Presentations
8.9. First PresentationZoning Agenda
9.10. Public HearingFirst Presentation
10.11. Zoning AgendaUnfinished Business
11.12. Unfinished BusinessNew Business
City of Milton
13000 Deerfield Parkway, Suite 107, Milton Georgia 30004
Amended on January 18, 2007
Second Amendment on June 21, 2007
Third Amendment on January 10, 2008
Fourth Amendment on September 15, 2008
Fifth Amendment on September 9, 2009
Sixth Amendment on November 19, 2012
Page 6 of 9
12.13. New BusinessMayor and Council Reports
13.14. Mayor and Council ReportsStaff Reports
14.15. Staff Reports Adjournment
15. Executive Session (if needed)
16. Reconvene
17. Adjournment
Section 14. Agenda. The city manager and city clerk shall prepare an agenda of subjects to be
acted on for each meeting. Work session topics and council agenda items shall be submitted
consistent with the process. established by the City Manager and City Clerk. The agenda shall
be made available to the city council at least one business day before every city council meeting.
(a) Requests For Agenda Items. Members of the public may request that a particular
subject be placed on the agenda for a meeting. To be considered, this request shall be
submitted in writing to the city manager or city clerk.
(b) Changing The Agenda. The order of the agenda may be changed during a meeting
by a majority vote of the city council. A new item may be added to the agenda by a
majority vote of the city council only if it becomes necessary to address the item during
the meeting. An existing item may be removed from the agenda by the majority vote of
the city council. Items for consideration by the City Council must be placed on City
Council meeting or work session agendas on or before 5:00 p.m. no less than seven
working days prior to the scheduled meeting or work session except in the case of an
emergency situation, which shall be defined as a sudden, unforeseen happening which
requires immediate action to correct or to protect lives and/or property.
(c) Agenda Must Be Made Public. The agenda of all matters to come before the city
council shall be made available to the public upon request and shall be posted at the
meeting site as far in advance as reasonably possible, but shall not be required to be
available more than two weeks prior to the meeting, but not . Not less than 24 hours prior
to the start of the meeting.
[Cross-reference: O.C.G.A. §§ 50-14-1(e)(1) and 36-66-4]
Section 15. Consent Agenda. A consent agenda may be prepared by the city manager for the
city council to adopt motions on routine items. Any items of business that are expected to
receive unanimous approval without debate may be placed on a consent agenda. At the
appropriate time of the meeting, all of the items on the consent agenda shall be read into public
record. If a council member objects to an item being on the consent agenda, the council member
shall direct the move of that particular item to the regular agenda throug h a motion, second, and
majority vote. Following the reading of the consent agenda, the mayor may ask for approval of
the items on the consent agenda. If there are no objections, all the items on the consent agenda
shall be approved by a majority vote of the city council.
City of Milton
13000 Deerfield Parkway, Suite 107, Milton Georgia 30004
Amended on January 18, 2007
Second Amendment on June 21, 2007
Third Amendment on January 10, 2008
Fourth Amendment on September 15, 2008
Fifth Amendment on September 9, 2009
Sixth Amendment on November 19, 2012
Page 7 of 9
Section 16. Decorum. All council members shall conduct themselves in a p rofessional and
respectful manner. Personal remarks are inappropriate and may be ruled out of order. A council
member may not speak at a meeting until he or she has been recognized by the mayor. All
comments made by a council member shall succinctly address the motion that is being discussed.
The mayor shall enforce these rules of decorum. If a council member believes that a rule has
been broken, he or she may raise a point of order. A second is not required. The Mayor may is
authorized to unilaterally rule on the question; or may allow the city council to , in the Mayor’s
discretion, the question can be presented to the full Council for debate the issue and be decided
by via majority vote.
Section 17. Voting. Passage of a motion shall require the affirmative vote of a majority of those
voting at which a quorum is physically present. at the site where the meeting is to be held .
Unless otherwise specified in the charter as it pertains to voting by the Mayor, a majority shall
mean at least four of the council members physically present (including mayor). at the site of the
meeting.
Section 18. Abstentions. A council member shall vote on all motions unless he or she has a
conflict of interest preventing him or her from making a decision in a fair and legal manner. If a
conflict of interest does exist, the council member shall explain for the record his or her decision
to abstain on any vote.
Section 19. Public Participation. Public participation in meetings of the city council shall be
permitted in accordance with the provisions of this section.
(a) Public Comments. All members of the public wishing to address the city council
shall submit their name and the topic of their comments to the city clerk prior to the start
of any meeting held by the city council; provided, however, that if the applicants of
rezoning actions or individual who wish to oppose a rezoning action has contributed
more than $250 to the campaign of a council member who will consider the application,
the individual shall file a campaign disclosure form as required by O.C.G.A. § 36-67A-
3(c) at least five calendar days prior to the first hearing by the city council. Individuals
may be allotted five minutes to make their comments and those comments shall be
limited to their chosen topic. These limits may be waived by a majority vote of the city
council.
[Cross-reference: O.C.G.A. § 36-67A-3]
(b) Public Participation on Agenda Items. The city council may allow public comment
on an agenda item at the time the item is being considered by the city council. These
comments shall be limited to the subject that is being debated. Members of the public
may speak for five minutes and may speak only once. These limits may be waived by a
majority vote of the city council. Anyone wishing to speak at any city council meeting
must be recognized by the mayor before addressing the city council.
City of Milton
13000 Deerfield Parkway, Suite 107, Milton Georgia 30004
Amended on January 18, 2007
Second Amendment on June 21, 2007
Third Amendment on January 10, 2008
Fourth Amendment on September 15, 2008
Fifth Amendment on September 9, 2009
Sixth Amendment on November 19, 2012
Page 8 of 9
(c) Decorum. Members of the public shall not make inappropriate or offensive
comments at a city council meeting and are expected to comply with the rules of decorum
that are established for council members. Individuals violating any rules of the city
council shall be ruled out of order by the mayor or by a point of order made by a council
member. A majority vote of the city council shall rule on the point of order. An
individual violating the rules of decorum may be removed from the meeting at the
direction of the mayor.
(d) Public Hearings. The city council may schedule public hearings for the purpose of
soliciting public comment on any subject of interest to the city council. Hearings may be
held immediately prior to, during or following a meeting of the city council or at such
other places and times as the city council may determine. These limits may be waived by
a majority vote of the City Council. No official action shall be taken at any such public
hearing. Hearings on zoning decisions shall be governed in accordance with the zoning
policies and procedures and require the opportunity for each side to have at least 10
minutes to discuss their position or offer comments.
[Cross-reference: O.C.G.A. §§ 36-66-4 and 36-66-5]
(e) Representation of Civic Associations, Advocacy Groups or Homeowners'
Associations. The city council may allow public comment on either an agenda item or
general public comment from a representative of such an organized group or association;
provided, however, that such an individual shall file a notarized affidavit that they have
the authority to speak on behalf of said organization on a form provided by the City Clerk
prior to the agenda item being called.
Section 20. Meeting Summary. A summary of the subjects acted upon in a meeting and the
names of the council members present at a meeting shall be written and made available to the
public for inspection within two business days of the adjournment of the meeting.
[Cross-reference: O.C.G.A. § 50-14-1(e)(2)]
Section 21. Minutes. The clerk of the city council shall promptly record the minutes for each
city council meeting. The minutes shall specify the names of council members present at the
meeting, a description of each motion or other proposal made at the meeting, the name of the
council member who proposed each motion, the name of the council member who seconded
each motion, and a record of all votes (the name of each council member voting for or against a
proposal shall be recorded). Minutes will be in summary form. Minutes for zoning agenda
items will be verbatim. More detailed information may be included in the minutes at the request
of the majority of the members of the city council.
The city council shall approve the minutes before they may be considered as an official record of
the city council. The minutes shall be open for public inspection once approved as official by
City of Milton
13000 Deerfield Parkway, Suite 107, Milton Georgia 30004
Amended on January 18, 2007
Second Amendment on June 21, 2007
Third Amendment on January 10, 2008
Fourth Amendment on September 15, 2008
Fifth Amendment on September 9, 2009
Sixth Amendment on November 19, 2012
Page 9 of 9
the city council but in no case later than immediately following the next regular meeting of the
city council. Regular meeting minutes will be provided at the next regularly scheduled meeting.
Work Session minutes will be provided at the next regularly scheduled Work Session. A copy of
the minutes from the previous meeting shall be distributed to the city council at least one
business day before the following meeting. The minutes of the previous meeting shall be
corrected, if necessary, and approved by the city council at the beginning of each meeting. A
majority vote is required for approval. Conflicts regarding the content of the minutes shall be
decided by a majority vote. Upon being approved, the minutes shall be signed by the mayor and
attested to by the clerk of the city council.
[Cross-reference: O.C.G.A. § 50-14-1(e) (2)]
Section 22. Roberts Rules of Order. This document shall serve as the rules and procedures of
the Mayor and City Council. In the absence of applicable rules and procedures which may from
time to time be encountered during the public meetings, Roberts Rules of Order shall be
followed.
Section 23. Duration of Council Meetings. City Council Meetings shall not extend beyond
12:00 midnight, and in the event that business is not concluded prior to that time, the remaining
agenda, unless otherwise extended by a majority vote of the council, or unless an emergency
exists, shall be deferred to “unfinished business” on the next scheduled meeting agenda.
City of Milton
13000 Deerfield Parkway, Building 100 Milton, Georgia 30004
Page 1 of 8
CITY OF MILTON, GEORGIA
RULES AND PROCEDURES FOR THE
CITY COUNCIL MEETINGS AND
PUBLIC HEARINGS
Section 1. Open Meetings.
All meetings of the Mayor and City Council shall be held in accordance with the provisions of
O.C.G.A. 50-14-1, et. seq. otherwise known as the Open Meetings Act (the “Act”). The public
shall at all times be afforded access to all meetings other than executive sessions as defined at
O.C.G.A. 50-14-1(a)(2) and those assemblies exempt from the Act per O.C.G.A. 50-14-3(a).
Section 2. Executive Sessions.
Executive sessions of the council may be held for all purposes set forth in O.C.G.A. 50-14-
3(b)(1), (2), and (4). Any portion of a meeting or assembly subject to the Act that does not fall
within the purview of O.C.G.A. 50-14-3(b)(1), (2) and (4) shall be open to the public.
(a) Non-Exempt Topics. If an agency member initiates a discussion during executive
session that falls outside the scope of those topics that may be discussed pursuant to
O.C.G.A. 50-14-3(b)(1), (2) and (4) the mayor must immediately rule the discussion out
of order. If the impermissible discussion continues, the chairman must adjourn the
meeting.
(b) Procedure For Entering Into Executive Sessions. No executive session shall be
held except pursuant to a majority affirmative vote of the city council taken in a public
meeting. The minutes of the public meeting shall reflect the names of the council
members present, those voting for the executive session, and the specific reasons for the
executive session.
(c) Executive Session Minutes. Executive session minutes shall be kept in accord with
O.C.G.A. 50-14-1(e)(2)(C). Executive session minutes shall not be open to the public.
(d) Mayor or Presiding Officer Affidavit. The mayor or other presiding officer shall
execute an affidavit stating, under oath, that the executive session was devoted to topics
exempt from the public access requirements. The affidavit shall include the specific
exemption to the open meetings law. The affidavit shall be notarized and filed with the
minutes of the open meeting.
[Cross Reference: O.C.G.A. §§ 50-14-2, 5-14-3 and 50-14-4]
City of Milton
13000 Deerfield Parkway, Building 100 Milton, Georgia 30004
Page 2 of 8
Section 3. Visual and Sound Recordings. Visual, and sound recordings shall be permitted for
all public hearings.
[Cross-reference: O.C.G.A. § 50-14-1(c)]
Section 4. Quorum. A quorum must be present for conducting meetings of the city council. A
quorum is four (4) members of the city council, including the Mayor. It is the duty of the mayor
or presiding officer to enforce this rule. Any council member may raise a point of order directed
to the mayor or presiding officer if he or she believes that a quorum is not present. If, during the
course of a meeting, a council member or council members leave and a quorum no longer exists,
the meeting may not continue. If a quorum is not attained within thirty minutes, the meeting
may be rescheduled by the mayor or presiding officer with the approval of the council members
present.
Section 4.5. Telephonic Participation. The city council is authorized to conduct meetings by
teleconference so long as the notice required by the Act is provided and means are afforded for
the public to have simultaneous access to the teleconference meeting. On any other occasion of
the meeting of council, and so long as a quorum is present in person, a council member may
participate by teleconference if necessary due to reasons of health or absence from City limits so
long as the other requirements of the Act are met. Absent emergency conditions or the written
opinion of a physician or other health professional that reasons of health prevent a council
member’s physical presence, no member shall participate by teleconference more than twice in
one calendar year.
[Cross reference O.C.G.A. 50-14-1(g)]
Section 5. Mayor. The presiding officer of the city council shall be the mayor. As presiding
officer, he or she is responsible for the orderly conduct of the meeting. In order to fulfill this
duty, the mayor shall enforce the rules of procedure that are adopted by the city council. The
mayor shall be impartial and conduct the meetings in a fair manner. The mayor may introduce
motions and second motions, including a motion or second to go into executive session. The
mayor shall be a voting member of the elected body.
Section 6. Mayor Pro-Tempore. The council shall select a mayor pro-tempore from the
council members at the first meeting of the calendar year following each election, provided no
runoff election is required. In the event a runoff election is required, a mayor pro-tempore shall
be selected at the first meeting after a full mayor and city council are seated. The mayor pro -tem
shall fulfill the duties of the mayor if the mayor is not in attendance. During the absence or
physical or mental disability of the mayor for any cause, the mayor pro tempore of the city
council, or in such person’s absence or disability for any reason, any one of the councilmembers
chosen by a majority vote of the city council, shall be clothed with all the rights and privileges of
the mayor and shall perform the official duties of the office of the mayor so long as such absence
or disability shall continue, except that the mayor pro tempore shall not have the mayor’s veto
power except in the case of physical or mental disability of the mayor. A councilmember acting
as mayor shall have only one vote. Any such absence or disability shall be declared by majority
City of Milton
13000 Deerfield Parkway, Building 100 Milton, Georgia 30004
Page 3 of 8
vote of all councilmembers. The mayor pro tempore or selected councilmember shall sign all
contracts and ordinances in which the mayor has a disqualifying financial interest.
Section 7. Presiding Officer. If the mayor and the mayor pro-tem are absent or otherwise
unable to serve as presiding officer at a meeting and a quorum of council members are present,
the remaining council members shall select a council member to serve as presiding officer of the
meeting until either the mayor or mayor pro-tem is present at the meeting.
Section 8. Parliamentarian. The city attorney shall serve as the parliamentarian for city
council meetings.
Section 9. Amendments to the Rules. Any proposed amendments to the rules of order shall be
submitted to the city manager three business days before a regular meeting of the city council.
The proposed amendment shall be included in the agenda for that meeting and distributed to all
council members. All amendments require a majority vote of the council to be adopted.
Section 10. Suspending the Rules of Order. Rules of order may be suspended in the case of
an emergency. A motion to suspend the rules requires a second, is debatable, and requires
unanimous approval of the council. Rules governing quorums (Section 4), voting methods and
requirements (Section 17 and Section 18), the notification to council members of meetings
(Section 12(a) and (b)) and rules necessary for compliance with state law may not be suspended;
provided, however, that, in the event that a state of emergency is declared by the Governor or
other authorized state official, the city council may waive time-consuming procedures and
formalities imposed by state law.
[Cross-reference: O.C.G.A. § 38-3-54]
Section 11. Regular Meetings. Regular meetings of the city council shall be held at 6:00 p.m.
on the first and third Monday of each month. All regular meetings shall be held at City Hall in
the Mayor and Council meeting room. A notice containing the foregoing information shall be
posted and maintained in a conspicuous place available to the general public at the regular
meeting place of the city council. Notice of regular meetings must be so posted at least one
week in advance and will also be posted on the city website.
[Cross-reference: O.C.G. A. § 50-14-1(d)(1)]
Section 12. Meetings Other Than Regular Meetings. The city council may meet at times and
locations other than those regularly scheduled meetings.
(a) Special Meetings and Rescheduled Regular Meetings. A regular meeting may be
canceled, rescheduled, recessed or moved to a new location within the city site by the
mayor and city council for any reason. Other special meetings may be scheduled by the
mayor or at the request of at least three (3) council members. Whenever a rescheduled
regular meeting or any other special meeting is to be held at a time or place other than the
regularly scheduled time or place, written notice of the meeting shall be posted for at
least 24 hours at the regular meeting place as well as the physical location where the
City of Milton
13000 Deerfield Parkway, Building 100 Milton, Georgia 30004
Page 4 of 8
meeting is to be held, if such location is different than the regular meeting place. In
addition, written or oral notice shall be given by the clerk at least 24 hours in advance of
the meeting to the legal organ of the city. Specially called meetings and emergency
meetings with less than 24 hours’ notice are authorized and may be called in accord with
O.C.G.A. 50-14-1(d)(3).
[Cross-reference: O.C.G.A. § 50-14-1(d)]
(b) Meetings With Less Than 24 Hours Notice. When emergency circumstances occur,
the city council may hold a meeting with less than 24 hours notice to the public. When
such meetings are to be held, the clerk shall provide notice to the legal organ of the city
and to each member of the city governing authority as soon as possible. The notice shall
include the subjects expected to be considered at the meeting. In addition, the minutes
shall reflect the reason for the emergency meeting and the nature of the notice given to
the media.
[Cross-reference: O.C.G.A. § 50-14-1-(d)]
(c) Meetings During a State of Emergency. When it is imprudent, inexpedient or
impossible to hold city council meetings at the regular meeting place due to
emergency or disaster resulting from manmade or natural causes, as de clared by
the Governor or other authorized state official, the city council may meet anywhere
within or outside of the city. Such a meeting may be called by the mayor or by any
three (3) council members. At the meeting, the council members shall establish and
designate emergency temporary meeting locations where public business may be
transacted during the emergency. Any action taken in such meetings shall have the
same effect as if performed at the regular meeting site. [Cross reference: O.C.G.A.
§§ 50-14-1 (d), 38-3-54, 38-3-55]
(d) Work Sessions. Meetings to discuss City business where no substantive votes are
taken shall be scheduled in regular intervals to facilitate discussion on important topics.
Work Sessions shall be held at 6:00 p.m. on the second Monday of each month. All work
session meetings shall be held at City Hall in the Mayor and Council meeting room. A
notice containing the foregoing information shall be posted and maintained in a
conspicuous place available to the general public at the regular meeting place of the city
council. Public input at work sessions will be allowed for ten (10) minutes per item, two
(2) minutes per person with the Mayor having flexibility to extend the time if needed.
The Council shall be authorized to conduct an executive session during a work session.
Section 13. Order of Business. All regular city council meetings shall substantially follow an
established order of business. The order shall be as follows:
1. Call to Order
2. Roll Call
3. Pledge of Allegiance
City of Milton
13000 Deerfield Parkway, Building 100 Milton, Georgia 30004
Page 5 of 8
4. Approval of Meeting Agenda
5. Public Comment
6. Consent Agenda
7. Reports and Presentations
8. First Presentation
9. Public Hearing
10. Zoning Agenda
11. Unfinished Business
12. New Business
13. Mayor and Council Reports
14. Staff Reports
15. Executive Session (if needed)
16. Reconvene
17. Adjournment
Section 14. Agenda. The city manager and city clerk shall prepare an agenda of subjects to be
acted on for each meeting. Work session topics and council agenda items shall be submitted
consistent with the attached process. The agenda shall be made available to the city council at
least one business day before every city council meeting.
(a) Requests For Agenda Items. Members of the public may request that a particular
subject be placed on the agenda for a meeting. To be considered, this request shall be
submitted in writing to the city manager or city clerk.
(b) Changing The Agenda. The order of the agenda may be changed during a meeting
by a majority vote of the city council. A new item may be added to the agenda by a
majority vote of the city council onl y if it becomes necessary to address the item during
the meeting. An existing item may be removed from the agenda by the majority vote of
the city council. Items for consideration by the City Council must be placed on City
Council meeting or work session agendas on or before 5:00 p.m. no less than seven
working days prior to the scheduled meeting or work session except in the case of an
emergency situation, which shall be defined as a sudden, unforeseen happening which
requires immediate action to correct or to protect lives and/or property.
(c) Agenda Must Be Made Public. The agenda of all matters to come before the city
council shall be made available to the public upon request and shall be posted at the
meeting site as far in advance as reasonably possible, but shall not be required to be
available more than two weeks prior to the meeting. Not less than 24 hours prior to the
start of the meeting.
[Cross-reference: O.C.G.A. §§ 50-14-1(e)(1)]
Section 15. Consent Agenda. A consent agenda may be prepared by the city manager for the
city council to adopt motions on routine items. Any items of business that are expected to
City of Milton
13000 Deerfield Parkway, Building 100 Milton, Georgia 30004
Page 6 of 8
receive unanimous approval without debate may be placed on a consent agenda. At the
appropriate time of the meeting, all of the items on the consent agenda shall be read into public
record. If a council member objects to an item being on the consent agenda, the council member
shall direct the move of that particular item to the regular agenda through a motion, second, and
majority vote. Following the reading of the consent agenda, the mayor may ask for approval of
the items on the consent agenda. If there are no objections, all the items on the consent agenda
shall be approved by a majority vote of the city council.
Section 16. Decorum. All council members shall conduct themselves in a professional and
respectful manner. Personal remarks are inappropriate and may be ruled out of order. A council
member may not speak at a meeting until he or she has been recognized by the mayor. All
comments made by a council member shall address the motion that is being discussed. The
mayor shall enforce these rules of decorum. If a council member believes that a rule has been
broken, he or she may raise a point of order. A second is not required. The mayor may rule on
the question or may allow the city council to debate the issue and decide by majority vote.
Section 17. Voting. Passage of a motion shall require the affirmative vote of a majority of those
voting at which a quorum is present. Unless otherwise specified in the charter as it pertains to
voting by the Mayor, a majority shall mean at least four of the council members present
(including mayor).
Section 18. Abstentions. A council member shall vote on all motions unless he or she has a
conflict of interest preventing him or her from making a decision in a fair and legal manner. If a
conflict of interest does exist, the council member shall explain for the record his or her decision
to abstain on any vote.
Section 19. Public Participation. Public participation in meetings of the city council shall be
permitted in accordance with the provisions of this section.
(a) Public Comments. All members of the public wishing to address the city council
shall submit their name and the topic of their comments to the city clerk prior to the start
of any meeting held by the city council; provided, however, that if the applicants of
rezoning actions or individual who wish to oppose a rezoning action has contributed
more than $250 to the campaign of a council member who will consider the application,
the individual shall file a campaign disclosure form as required by O.C.G.A. § 36-67A-
3(c) at least five calendar days prior to the first hearing by the city council. Individuals
may be allotted five minutes to make their comments and those comments shall be
limited to their chosen topic. These limits may be waived by a majority vote of the city
council.
[Cross-reference: O.C.G.A. § 36-67A-3]
(b) Public Participation on Agenda Items. The city council may allow public comment
on an agenda item at the time the item is being considered by the city council. These
comments shall be limited to the subject that is being debated. Members of the public
City of Milton
13000 Deerfield Parkway, Building 100 Milton, Georgia 30004
Page 7 of 8
may speak for five minutes and may speak only once. These limits may be waived by a
majority vote of the city council. Anyone wishing to speak at any city council meeting
must be recognized by the mayor before addressing the city council.
(c) Decorum. Members of the public shall not make inappropriate or offensive
comments at a city council meeting and are expected to comply with the rules of decorum
that are established for council members. Individuals violating any rules of the city
council may be ruled out of order by the mayor or on a point of order made by a council
member. A majority vote of the city council shall rule on the point of order. An
individual violating the rules of decorum may be removed from the meeting at the
direction of the mayor.
(d) Public Hearings. The city council may schedule public hearings for the purpose of
soliciting public comment on any subject of interest to the city council. Hearings may be
held immediately prior to, during or following a meeting of the city council or at such
other places and times as the city council may determine. Hearings require at least 10
minutes per side. These limits may be waived by a majority vote of the City Council. No
official action shall be taken at any such public hearing. Hearings on zoning decisions
shall be governed in accordance with the zoning policies and procedures and require the
opportunity for each side to have at least ten (10) minutes to discuss their position or
offer comments.
[Cross-reference: O.C.G.A. §§ 36-66-4 and 36-66-5]
(e) Representation of Civic Associations, Advocacy Groups or Homeowners’
Associations. The city council may allow public comment on either an agenda item or
general public comment from a representative of such an organized group or association;
provided, however, that such an individual shall file a notarized affidavit that they have
the authority to speak on behalf of said organization on a form provided by the City Clerk
prior to the agenda item being called.
Section 20. Meeting Summary. A summary of the subjects acted upon in a meeting and the
names of the council members present at a meeting shall be written and made available to the
public for inspection within two business days of the adjournment of the meeting.
[Cross-reference: O.C.G.A. § 50-14-1(e)(2)]
Section 21. Minutes. The clerk of the city council shall promptly record the minutes for each
city council meeting. The minutes shall specify the names of council members present at the
meeting, a description of each motion or other proposal made at the meeting, the n ame of the
council member who proposed each motion, the name of the council member who seconded each
motion, and a record of all votes (the name of each council member voting for or against a
proposal shall be recorded). Minutes will be in summary form. Minutes for zoning agenda items
will be verbatim. More detailed information may be included in the minutes at the request of the
city council.
City of Milton
13000 Deerfield Parkway, Building 100 Milton, Georgia 30004
Page 8 of 8
The city council shall approve the minutes before they may be considered as an official record of
the city council. The minutes shall be open for public inspection once approved as official by the
city council but in no case later than immediately following the next regular meeting of the city
council. A copy of the minutes from the previous meeting shall be distributed to the city council
at least one business day before the following meeting. The minutes of the previous meeting
shall be corrected, if necessary, and approved by the city council at the beginning of each
meeting. A majority vote is required for approval. Conflicts regarding the content of the
minutes shall be decided by a majority vote. Upon being approved, the minutes shall be signed
by the mayor and attested to by the clerk of the city council.
[Cross-reference: O.C.G.A. § 50-14-1(e)(2)]
Section 22. Roberts Rules of Order. This document shall serve as the rules and procedures of
the Mayor and City Council. In the absence of applicable rules and procedures which may from
time to time be encountered during the public meetings, Roberts Rules of Order shall be
followed.
Section 23. Duration of Council Meetings. City Council Meetings shall not extend beyond
12:00 midnight, and in the event that business is not concluded prior to that time, the remaining
agenda, unless otherwise extended by a majority vote of the council, or unless an emergency
exists, shall be deferred to “unfinished business” on the next scheduled meeting agenda.
STATE OF GEORGIA ORDINANCE NO.
COUNTY OF FULTON
AN ORDINANCE AMENDING ORDINANCE NO. 09-09-49 ADOPTING AND AMENDING
RULES AND PROCEDURES FOR THE CITY COUNCIL MEETINGS AND PUBLIC
HEARINGS FOR THE
CITY OF MILTON, GEORGIA; AND FOR OTHER PURPOSES
The Council of the City of Milton hereby ordains while in regular session on the 19th day of
November at 6:00 p.m.:
SECTION 1. That the Rules of Procedures for the City Council Meetings and Public
Hearings adopted on November 21, 2006, amended on January 18, 2007, June 21, 2007,
January 10, 2008, September 15, 2008 and September 9, 2009 are hereby amended and
attached hereto as if fully set forth herein; and,
SECTION 2. All other ordinances in conflict are repealed; and
SECTION 3. That this Ordinance shall become effective upon its adoption.
ORDAINED this 19th day of November 2012.
Approved:
_________________________________
Joe Lockwood, Mayor
Attest:
___________________________________
Sudie AM Gordon, City Clerk
(SEAL)
City of Milton
13000 Deerfield Parkway, Milton, Georgia 30004
1
To: Honorable Mayor and City Council Members
From: Chris Lagerbloom, City Manager
Date: Submitted on October 22, 2012 for First Presentation on the November 5, 2012
Regular Council Meeting and Ratification at the November 19, 2012 Regular
Council Meeting
Agenda Item: Consideration of An Ordinance to Amend Article III, Property Maintenance,
Division 4, General Requirements, Section 10-267 (Exterior Property
Requirements) of Chapter 10, Buildings and Building Regulations of the City of
Milton Code.
City Manager’s Office Recommendation:
Consideration and approval of an amendment to the “Buildings and Building Regulations”
Ordinance.
Background:
Clarification is needed to include both developed and undeveloped lots in this ordinance.
Discussion
The current wording of the ordinance has been interpreted by the court as vague. In order to
make it clear, it is proposed that the following wording (bold, italicized) be added to Section 10-
267(d)(1):
“All premises and exterior property, including both developed and undeveloped lots, shall be
maintained free from weeds or plant growth in excess of ten inches. All noxious weeds shall be
prohibited.”
Funding and Fiscal Impact:
None.
Alternatives:
Do not approve the changes to the ordinance
Concurrent Review:
Chris Lagerbloom, City Manager
STATE OF GEORGIA ORDINANCE NO.
COUNTY OF FULTON
AN ORDINANCE TO AMEND ARTICLE III, PROPERTY MAINTENANCE, DIVISION 4,
GENERAL REQUIREMENTS, SECTION 10-267 (EXTERIOR PROPERTY REQUIREMENTS)
OF CHAPTER 10, BUILDINGS AND BUILDING REGULATIONS OF THE CITY OF MILTON
CODE
BE IT ORDAINED by the City Council of the City of Milton, GA while in a regularly called council
meeting on November 19, 2012 at 6:00 p.m. as follows:
SECTION 1. That the Ordinance that relates to exterior property requirements, Chapter 10,
Article III, Division 4, Section 10-267 of the City of Milton Code is amended, is hereby adopted
and approved; and is attached hereto as if fully set forth herein, and;
SECTION 2. All ordinances, parts of ordinances, or regulations in conflict herewith are
repealed.
SECTION 3. That this Ordinance shall become effective upon its adoption.
ORDAINED this the 19th day of November, 2012.
_________________________________
Mayor Joe Lockwood
Attest:
___________________________
Sudie AM Gordon, City Clerk
(Seal)
Sec. 10-267. - Exterior property requirements.
(a) Keep exterior premises in clean, safe and sanitary condition. All exterior property and premises
shall be maintained in a clean, safe and sanitary condition. The occupant shall keep that part of the
exterior property which such occupant occupies or controls in a clean and sanitary condition.
(b) Maintain grading and drainage to prevent soil erosion and stagnant water. All premises shall be
graded and maintained to prevent the erosion of soil and to prevent the accumulation of stagnant water
thereon, or within any structure located thereon. Excepted from this subsection are approved retention
areas and reservoirs.
(c) Keep sidewalks and driveways repaired and free of hazardous conditions. All sidewalks,
walkways, stairs, driveways, parking spaces and similar areas shall be kept in a proper state of repair,
and maintained free from hazardous conditions.
(d) Weeds; definition; assessment.
(1) All premises and exterior property, including both developed and undeveloped lots, shall
be maintained free from weeds or plant growth in excess of ten inches. All noxious weeds shall be
prohibited.
a. The term "weeds" means all grasses, annual plants and vegetation, other than trees or
shrubs.
b. The term "weeds" does not include cultivated flowers and gardens.
(2) Upon the failure of the owner or agent having charge of a property to cut and destroy weeds
after service of a notice of violation, he or she shall be subject to prosecution in accordance with
section 10-241(b) and as prescribed by the authority having jurisdiction. Upon the failure to comply
with the notice of violation, any duly authorized employee of the jurisdiction or contractor hired by
the jurisdiction shall be authorized to enter upon the property in violation and cut and destroy the
weeds growing thereon, and the costs of such removal shall be paid by the owner or agent
responsible for the property.
(e) Rodent harborage prohibited. All structures and exterior property shall be kept free from rodent
harborage and infestation. Where rodents are found, they shall be promptly exterminated by approved
processes which will not be injurious to human health. After extermination, proper precautions shall be
taken to eliminate rodent harborage and prevent reification.
(f) Exhaust vents. Pipes, ducts, conductors, fans or blowers shall not discharge gases, steam, vapor,
hot air, grease, smoke, odors or other gaseous or particulate wastes directly upon abutting or adjacent
public or private property or that of another tent.
(g) Accessory structures to be maintained. All accessory structures, including detached garages,
fences and walls, shall be maintained structurally sound and in good repair.
(h) Motor vehicles.
(1) Prohibited. Except as provided for in other regulations, no inoperative or unlicensed motor
vehicle shall be parked, kept or stored on any premises, and no vehicle shall at any time be in a
state of major disassembly, disrepair, or in the process of being stripped or dismantled. Painting of
vehicles is prohibited unless conducted inside an approved spray booth.
(2) Exception. A vehicle of any type is permitted to undergo major overhaul, including body work;
provided that such work is performed inside a structure or similarly enclosed area designed and
approved for such purposes.
(i) Defacement of property.
(1) Prohibited. No person shall willfully or wantonly damage, mutilate or deface any exterior
surface of any structure or building on any private or public property by placing thereon any
marking, carving or graffiti.
(2) Owner's responsibility to restore and maintain. It shall be the owner's responsibility to restore
said surface to an approved state of maintenance and repair.
(Ord. No. 06-12-76, § 1(302.1)—(302.9), 12-21-2006)
City of Milton
13000 Deerfield Parkway, Suite 107 Milton, GA 30004
1
To: Honorable Mayor and City Council Members
From: Sudie Gordon, City Clerk
Date: October 30, 2012, Submitted for the November 19, 2012, City Council
Regular Meeting
Agenda Item: Consideration and Approval of a Resolution Adopting the Council and Work
Session Meeting Dates (January through December 2013).
____________________________________________________________________________
CMO (City Manager’s Office) Recommendation:
Approve the Council and Work Session meeting dates for 2013.
Background:
The City of Milton is committed to conducting City business in a manner that complies with all
legal requirements, fosters citizen confidence in City government, and promotes efficient and
effective government operations. As part of our open and transparent government process, the
Mayor and City Council will adopt a yearly meeting schedule.
Discussion:
The goal of any meeting schedule is to provide advance notice to the elected officials, staff, and
the public of when formal business will be conducted by the municipality.
Funding and Fiscal Impact:
N/A
Alternatives:
N/A
Legal Review:
N/A
Concurrent Review:
Chris Lagerbloom, City Manager
Attachments:
Resolution Adopting the 2013 City of Milton City Council Regular Meeting and Work
Session Schedule
Council and Work Session Meeting Dates 2013
City of Milton 2013 Holiday Schedule
STATE OF GEORGIA
COUNTY OF FULTON RESOLUTION NO.
A RESOLUTION ADOPTING THE 2012 CITY OF MILTON CITY COUNCIL
REGULAR MEETING AND WORK SESSION SCHEDULE
The Council of the City of Milton hereby resolves while in regular session on the 19th day of
November 2013 at 6:00 pm:
SECTION 1. That the schedule for the 2013 City Council Regular and Work Session
Council Meeting Dates is hereby approved as attached;
SECTION 2. That resolutions in conflict with this resolution are hereby repealed.
SECTION 3. That this approval be effective January 1, 2013.
RESOLVED this 19th day of November 2012.
Approved:
__________________________
Joe Lockwood, Mayor
Attest:
_____________________________
Sudie AM Gordon, City Clerk
(Seal)
COUNCIL AND WORK SESSION MEETING DATES (January through December, 2013)
STAFF SUBMITTAL TO CITY
CLERK OFFICE FOR REVIEW
(14 DAYS)
PACKET DAY
DISTRIBUTION TO CITY COUNCIL &
POST AGENDA TO WEBSITE
(7 DAYS)
COUNCIL MEETINGS
MONDAY
WEDNESDAY MTG.
WORK SESSIONS
MONDAY
Dec. 24, 2012 Dec. 31, 2012 Jan. 7
Dec. 31, 2012 Jan. 14
Jan. 9 Jan. 16 Wed. Jan. 23
Jan. 18 Jan. 28 Feb. 4
Jan. 28 Feb. 11
Feb. 6 Feb. 13 Wed. Feb. 20
Feb. 15 Feb. 25 March 4
Feb. 25 March 11
March 4 March 11 March 18
March 25 April 1 April 8
April 1 April 15
April 8 April 15 April 22
April 22 April 29 May 6
April 29 May 13
May 6 May 13 May 20
May 20 May 24 June 3
May 24 June 10
June 3 June 10 June 17
June 17 June 24 July 1
June 24 July 8
July 1 July 8 July 15
July 22 July 29 Aug. 5
July 29 Aug. 12
Aug. 5 Aug. 12 Aug. 19
Aug. 21 Aug. 28 Wed. Sept. 4
Aug. 26 Sept. 9
Aug. 30 Sept. 9 Sept. 16
Sept. 23 Sept. 30 Oct. 7
Sept. 30 Oct. 14
Oct. 7 Oct. 14 Oct. 21
Oct. 21 Oct. 28 Nov. 4
Oct. 30 Nov. 13
Nov. 4 Nov. 8 Nov. 18
Nov. 18 Nov. 25 Dec. 2
Nov. 25 Dec. 9
Dec. 2 Dec. 9 Dec. 16
J A N U A R Y
S M T W T F S
1 2 3 4 5
6 7 8 9 10 11 12
13 14 15 16 17 18 19
20 21 22 23 24 25 26
27 28 29 30 31
F E B R U A R Y
S M T W T F S
1 2
3 4 5 6 7 8 9
10 11 12 13 14 15 16
17 18 19 20 21 22 23
24 25 26 27 28
M A R C H
S M T W T F S
1 2
3 4 5 6 7 8 9
10 11 12 13 14 15 16
17 18 19 20 21 22 23
24 25 26 27 28 29 30
31
A P R I L
S M T W T F S
1 2 3 4 5 6
7 8 9 10 11 12 13
14 15 16 17 18 19 20
21 22 23 24 25 26 27
28 29 30
M AY
S M T W T F S
1 2 3 4
5 6 7 8 9 10 11
12 13 14 15 16 17 18
19 20 21 22 23 24 25
26 27 28 29 30 31
J U N E
S M T W T F S
1
2 3 4 5 6 7 8
9 10 11 12 13 14 15
16 17 18 19 20 21 22
23 24 25 26 27 28 29
30
J U L Y
S M T W T F S
1 2 3 4 5 6
7 8 9 10 11 12 13
14 15 16 17 18 19 20
21 22 23 24 25 26 27
28 29 30 31
A U G U S T
S M T W T F S
1 2 3
4 5 6 7 8 9 10
11 12 13 14 15 16 17
18 19 20 21 22 23 24
25 26 27 28 29 30 31
S E P T E M B E R
S M T W T F S
1 2 3 4 5 6 7
8 9 10 11 12 13 14
15 16 17 18 19 20 21
22 23 24 25 26 27 28
29 30
O C T O B E R
S M T W T F S
1 2 3 4 5
6 7 8 9 10 11 12
13 14 15 16 17 18 19
20 21 22 23 24 25 26
27 28 29 30 31
N O V E M B E R
S M T W T F S
1 2
3 4 5 6 7 8 9
10 11 12 13 14 15 16
17 18 19 20 21 22 23
24 25 26 27 28 29 30
D E C E M B E R
S M T W T F S
1 2 3 4 5 6 7
8 9 10 11 12 13 14
15 16 17 18 19 20 21
22 23 24 25 26 27 28
29 30 31
2013
MEETING
CALENDAR
2013 Council and Work Session
Meeting Calendar
Work Session Dates
A Work Session is scheduled on dates
highlighted: they may be canceled by
Council if not needed.
Regular Council Meeting Days
Holidays Observed
1/1 New Year’s Day
1/21 Dr. Martin Luther King Jr.
2/18 Presidents Day
5/27 Memorial Day
7/4 4th of July
7/5 City Manager’s Floating Day
9/2 Labor Day
11/11 Veteran’s Day
11/28-29 Thanksgiving
12/25 Christmas Day
Fulton County School Calendar
1/7 First day of semester
4/1-5 Spring Break
5/23 Last Day of School
8/12 First Day of School
11/27-29 Thanksgiving Break
12/21-1/6 Winter Break
2013 GMA Conference
June 21-25 - Savannah, GA
2013 Mayor’s Day Conference
January 26-28
CITY OF MILTON
2013 HOLIDAY SCHEDULE
HOLIDAY
DATE OBSERVED
New Year’s Day Observed
Tuesday, January 1, 2013
Martin Luther King, Jr. Birthday
Monday, January 21, 2013
President’s Day
Monday, February 18, 2013
Memorial Day
Monday, May 27, 2013
Independence Day
Thursday, July 4, 2013
City Manager’s Floating Holiday
Friday, July 5, 2013
Labor Day
Monday, September 2, 2013
Veteran’s Day
Monday, November 11, 2013
Thanksgiving Day
Thursday, November 28, 2013
Day After Thanksgiving
Friday, November 29, 2013
Christmas Day Observed
Wednesday, December 25, 2013
Employee’s Holiday
Employee’s Birthday
City of Milton
13000 Deerfield Parkway, Milton, Georgia 30004
1
To: Honorable Mayor and City Council Members
From: Michele McIntosh-Ross, Principal Planner
Date: Submitted on November 8, 2012 for the November 19, 2012 Regular Council
Meeting
Agenda Item: Consideration of a Resolution to Approve the Agreement Between Fulton County,
Georgia and The City of Milton, Georgia To Allow the Use of Community
Development Block Grant (CDBG) Program Funds in Year 2012 in the Amount of
$53,750 to Rehabilitate the Two and a Half Acre Former Residential
Home/Estate for use as a Senior Center Located at 15690 Hopewell Road,
Milton, Georgia
____________________________________________________________________________
Department Recommendation:
To approve the agreement between Fulton County, Georgia and the City of Milton, Georgia to
allow the use of Community Development Block Grant (CDBG) program funds in year 2012 in
the amount of $53,750 to rehabilitate the two and a half acre former residential home/estate for
use as a Senior Center located at 15690 Hopewell Road, Milton, Georgia.
Executive Summary:
On September 17, 2012 the City of Milton approved a Resolution (No. 12-09-230) to submit an
application to Fulton County requesting funds through the Community Development Block Grant
(CDBG) program to use in the rehabilitation of the City property at 15690 Hopewell Road,
known as the Hopewell House, for use as a Senior Center.
In a letter dated November 1, 2012, Fulton County gave official notification that the City of Milton
is the recipient of FY 2012 CDBG funds through the Fulton County CDBG program.
Funding and Fiscal Impact:
The estimated total cost for the rehabilitation of the Hopewell House is $699,000. This grant
distributes $53,750 per year over three years totaling $161,250. The overall fiscal impact to the
City is the remainder of the final total cost of construction after the grant pays $161,250.
Exhibit C “Municipality Year 2012 CDBG Project Delivery Operating Budget” shows the project
components and costs scheduled for 2012 amount to $74,000. The CDBG will fund up to
$53,750 in FY 2012, and the remaining $20,250 will be attributed to the City.
Alternatives:
No alternatives
City of Milton
13000 Deerfield Parkway, Milton, Georgia 30004
2
Legal Review:
Ken Jarrard – Jarrard & Davis, November 9, 2012
Concurrent Review:
Chris Lagerbloom, City Manager
Kathleen Field, Community Development Director
Carter Lucas, Public Works Director
Attachment(s):
Contract Packet with Notification Letter
Resolution No. 12-09-230
STATE OF GEORGIA
COUNTY OF FULTON RESOLUTION NO.
A RESOLUTION TO APPROVE THE AGREEMENT BETWEEN FULTON
COUNTY, GEORGIA AND THE CITY OF MILTON, GEORGIA TO ALLOW THE
USE OF COMMUNITY DEVELOPMENT BLOCK GRANT (CDBG) PROGRAM
FUNDS IN YEAR 2012 IN THE AMOUNT OF $53,750 TO REHABILITATE THE
TWO AND A HALF ACRE FORMER RESIDENTIAL HOME/ESTATE FOR USE
AS A SENIOR CENTER LOCATED AT 15690 HOPEWELL ROAD, MILTON,
GEORGIA.
BE IT RESOLVED by the City Council and the Mayor of the City of Milton, Georgia
while in a Regular Meeting on November 19, 2012 at 6:00 p.m. as follows:
WHEREAS, on September 17, 2012 the City of Milton approved a Resolution (No. 12-
09-230) to submit an application to Fulton County requesting funds through the
Community Development Block Grant (CDBG) program to use in the rehabilitation of
the City property at 15690 Hopewell Road, known as the Hopewell House, for use as a
Senior Center, and
WHEREAS, in a letter dated November 1, 2012, Fulton County gave official notification
that the City of Milton is the recipient of FY 2012 CDBG funds through the Fulton
County CDBG program in the amount of $53,750.
NOW THEREFORE BE IT RESOLVED, the City Council and the Mayor of the City
of Milton does hereby approve the agreement between Fulton County and The City of
Milton for year 2012 CDBG program.
RESOLVED this19th day of November 2012.
Approved:
__________________________
Joe Lockwood, Mayor
Attest:
_____________________________
Sudie AM Gordon, City Clerk
(Seal)
STATE OF GEORGIA
COUNTY OF FULTON RESOLUTION NO. 12-09-230
A RESOLUTION TO APPROVE THE TRANSMITTAL OF AN APPLICATION
TO FULTON COUNTY FOR COMMUNITY DEVELOPMENT BLOCK GRANT
(CDBG) FUNDS FOR FULTON COUNTY CONSOLIDATED PLAN PERIOD
2012-2014 TO RENOVATE THE CITY PROPERTY AT 15690 HOPEWELL
ROAD FOR USE AS A SENIOR CENTER
BE IT RESOLVED by the City Council and the Mayor of the City of Milton, GA while
in a Regular Meeting on September 17,2012 at 6:00 p.m. as follows:
WHEREAS, The City of Milton owns the 2.5 acre property located at 15690 Hopewell
Road, commonly referred to as the Hopewell House; and
WHEREAS, this property is one of the oldest structures in North Fulton County dating
back to circa 1840, and significant renovations are needed to meet the building safety
criteria to allow for public uses; and
WHEREAS, a professional cost estimate was done and determined that the cost to
convert this property into a community center is approximately $699,000; and
WHEREAS, funds are available through the Community Development Block Grant
(CDBG) program for the renovation of buildings for use as a Senior Center; and
WHEREAS, Milton has over 3,000 senior residents accounting for 10 percent of
Milton's population, and there are no senior service centers located in Milton; and
WHEREAS, A Public Hearing to consider the proposed use of funds was held on
September 5, 2012; and
WHEREAS, the City of Milton desires to submit an application to Fulton County
seeking a total of $161,250 in (CDBG) Federal funding, subject to future Congressional
appropriation, to establish a Senior Community Center at 15690 Hopewell Road to
benefit the senior population in Milton and North Fulton County; and
Page 1 of2
NOW THEREFORE BE IT RESOLVED, the City Council and the Mayor of the City
of Milton does hereby authorize the transmittal of the (CDBG) application to Fulton
County.
RESOL VED this 1 i h day of September 2012.
Approved:
Page 2 of2
HOUSING AND HUMAN SERVICES DEPARTMENT
'r' r 31
FULTON COUNTY
November 1, 2012
Ms. Kathleen Filed
Director of Community Development
City of Milton
13000 Deerfield Parkway, Suite 107F
Milton, Georgia 30004
Dear Ms. Field:
This letter serves as your official notification that the City of Milton is the recipient of FY 2012
Community Development Block Grant (CDBG) funds through Fulton County's CDBG Program
as follows:
FY 2012 City of Milton - $53,750.00
Enclosed for execution is one (1) contract, with three (3) signature pages, per contract for
signature. Please sign, date and return the attached contract with all signature pages. The
agreement establishes the terms and conditions your jurisdiction must meet to participate in the
CDBG program. Please note that per Fulton County Board of Commissioners' policy, the
expending of all CDBG funds must occur within the fourteen (14) month contract period;
however, we strongly encourage all jurisdictions and agencies to expend the majority of their
funds by December 1, 2012. All eligible project costs incurred since January 1, 2012 are
reimbursable pending approval by your assigned Community Development Project Manager. If
unexpended funds remain after the contract period, the County inay recapture them. This policy
revision is a result of the U.S. Department of Housing and Urban Development's (HUD) concerns
over slow expenditure rates by participating entitlements. All CDBG program participants are
required to meet an annual 1.5 expenditure ratio, which states that not more than 1112 years of
CDBG funds are available in a jurisdiction's or agency's line of credit sixty (60) days before
receipt of its next allocation.
Please return the contract with signature pages to Linda Callaway on or before Friday,
November 19, 2012. You will receive a copy of the executed contract once the Chairman of the
Board of Commissioners has signed. If you have questions, please contact me, at (404) 612-
8192.
Vennet�Butler
CD Ma aser
Cc: Linda Callaway, Project Manager
137 PEACHTREE STREET, S.W. ♦ ATLANTA, GEORGIA 30303
OFFICE (404) 613-7944 4 WEB: WWW.FULTONHUMANSERVICES.ORG
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YEAR 20I2FULTON COUNTY COMMUNITY DEVEL OPIIIENT BLOCK GRANT
PROGRAM
AN A GREEMENT BETWEEN FUL TON CO LINTY AND
THE CITY OF MILTON, GEORGIA
STATE OF GEORGIA, COUNTY OF FULTON
THIS AGREEMENT, between Fulton County, Georgia, (hereinafter referred to as "the
County"), a political subdivision of the State of Georgia, acting by and through its duly elected Board
of Commissioners, and the City of Milton, Georgia (hereinafter referred to as "the City"), a
municipality organized and existing in Fulton County under the laws of the State of Georgia.
WITNESSETH THAT.
WHEREAS, on October 3, 2012, the Fulton County Board of Commissioners approved the
2012 and 2013 substantial amendments as part of the overall Consolidated Pian Annual Action Plan
Amendments for fiscal year 2013, which includes Community Development objectives, and the
projected uses of said funds for the Community Development Block Grant (CDBG) program
activities, as prescribed under the Housing and Community Development Act of 1974, and as
amended; and
HEREAS, the City has been provided CDBG funds by Fulton County for Public Facility
Improvements [as set forth in 24 CFR §570.201(c)] and to meet a national objective benefiting
low/moderate income persons; [as set forth in 24 CFR §570.208(a)(2)(i)(C)]; and
WHEREAS, the year 2012 CDBG allocation awarded to the City in the amount of
$53,750.00, shall be specifically used for architectural services to rehabilitate a two and a half acre
former residential home/estate for use as a Senior Center located at 15690 Hopewell Road, Milton,
Georgia. The activities are designed to benefit low/moderate income persons as required to meet the
CDBG national objective; and
WHEREAS, this Agreement constitutes the contractual arrangement for said improvements
and/or services that has been prepared for execution between the County and the City as consistent
with the Fulton County's Consolidated Plan Annual Action Plan for fiscal year 2012.
NOW, THEREFORE, for and in consideration of the mutual covenants contained herein, the
parties hereby agree as follows:
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1 SECTION I.0 — STATEMENT OF FORK
2
3 1, Under this Agreement, the City agrees to perform the public facility or improvements work in
4 accordance with the "Statement of Work" attached hereto and made a part hereof as
5 Attachment A, which describes the public facility or improvements project to be delivered as
6 submitted in the City's year 2012 CDBG application that will be funded with County CDBG
7 funds; and
8
9 2. Under this Agreement, the City shall perform its work according to a "Public Facility or
10 Improvement Project Schedule" to be executed over the fourteen month Agreement period
11 (January 1, 2012 — March 1, 2013) the County as submitted in the City's year 2012 CDBG
12 application and attached hereto and made a part hereof as Attachment B; and
13
14 3. Under this Agreement, the City shall also provide a Municipal Year 2012 CDBG "Operating
15 Budget" for the project that is being executed with CDBG funds as submitted in the City's
16 year 2412 CDBG application, as attached hereto and made a part hereof for the above
17 referenced Agreement period as Attachment C, and
1.8
19 4. Under this Agreement, the City shall submit, on not less than a monthly basis, a "Monthly
20 Performance Report" detailing project progress as attached hereto and made a part hereof as
21 Attachment D.
22
23 5. All work described in Attachments A, B, and C must be consistent with applicable federal
24 rules and regulations governing the use of CDBG funds.
25
26 SECTION 2.0 — TERMS OF AGREEMENT
27
28 1. The terms of this Agreement shall be in compliance with the Fiscal Year 2012-2014
29 Cooperative Agreement between Fulton County and the City.
30
31 2. The term of these fourteen (14) months shall commence and shall become effective January 1,
32 2012. The completion date of this Agreement is March 1, 2013, unless otherwise extended in
33 writing, terminated by mutual agreement or by Fulton County, or in accordance with other
34 terms and provisions contained herein. The completion date is computed on the basis that the
35 City is eligible to receive retroactive costs incurred on or after January 1, 2012, Funds will be
3 5 made available for eligible incurred costs upon execution of the County's annual grant
37 agreement with the U.S. Department of Housing and Urban Development (HUD).
38
39 SECTION 3.0 -- UNIFORM ADMINISTRATIVE REQUIREMENTS
40
41 During its performance under this Agreement, the City shall comply with the requirements
42 and standards of the Office of Management and Budget (OMB) Circular A-87, "Cost
43 Principles for State, Local and Indian Tribal Governments," Circular A-133, "Audits of States,
44 and Local Governments," and applicable sections of 24 CFR Part 570.502, "Applicability of
45 Uniform Administrative Requirements." OMB Circulars are attached hereto as Attachment E
46 and incorporated herein.
47
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49
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1 SECTION 4.0 -NEEDS ASSESSMENT, TECHNICAL ASSISTANCE AND MONITORING
3 The City's representative must attend at least one (1) Needs Assessment session, participate in
4 every Technical Assistance (TA)/Needs Assessment sessions and a Monitoring session during
5 the contract year. The County shall provide comprehensive information to assist the City in
6 performing efficiently and effectively.
7
S SECTION 5.0 — RECORDS
REPORTS, AND A UDITS
9
10 1. The City shall maintain accounts and records, (including an Independent Audit) personal
11 property and financial records, adequate to identify and account for all costs pertaining to this
12 Agreement and such other records as may be requested by the Grantor including financial data
13 pertaining to the preparation of the U.S. Department of Housing and Urban Development
14 (HUD) Consolidated Annual Performance and Evaluation Report (CAPER) to assure proper
1s accounting for all funds, both public and private. Said records shall be made available for
16 audit purposes to the Grantor, HUD, or any authorized representative thereof, upon reasonable
17 request and within three (3) days of said request, and retention period referenced in 84.35 (b)
18 pertaining to individual CDBG activities shall be four (4) years; and the retention period shall
19 start from the date of submission of the CAPER, as prescribed in 24 CFR 91.520, in which the
20 specific activity is reported for the final time rather than from the date of submission of the
21 final expenditure report for the award. The City's records and accounts shall at all times meet
22 or exceed the applicable requirements of federal, state, and Fulton County laws, rules, and
23 regulations. The City's duty to retain records and permit inspections and copying shall remain
24 in force and effect even after the expiration or termination of this Agreement. The City must
25 also provide a written Operational Plan that outlines the activities and processes of the
26 program that will be funded by CDBG.
27
28 2. Further, the City shall submit detailed reports on the progress made and services of their
29 programs based on the objectives they establish in response to local needs and goals.
30 Objectives reflect the common ways that Cities work to achieve their goals. The Objectives
31 incorporated into the proposed Outcome Measurement System are: Suitable Living
32 Environment, Decent Housing, and Economic Opportunity. Outcome measurements will be
33 based on (a) Availability/Accessibility (b) Affordability (c) Sustainability. Outcomes show
34 how programs benefit a community or people served. Indicators tell whether an outcome is
35 occurring. At a minimum, these reports shall be submitted on a monthly basis. The monthly
36 reports are due the 10'x' day of each month for activities, which occurred in the previous month
37 and shall include the same information indicated in the "Public Facility/Improvement Monthly
38 Performance Report" attached hereto and made a part hereof as Attachment D. The year end
39 reports are due the 10"' day of March 2013 for activities, which occurred during the 2012
40 funding year in the "Public Facility/Improvement Year -End Performance Report" attached
41 hereto and made a part hereof as Attachment D-2.
42
43 3. Reports shall be submitted to the County's respective Community Development Specialist or
44 Manager responsible for the administration and management of the City's CDBG funds at
45 Fulton County Department of Housing and Human Services, 137 Peachtree Street, SW, Suite
46 300, Atlanta, GA., 30303. Two copies of the report shall be included in each submission.
47
48
49
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1 SECTION & 0 — REIME "SEMENT FOR SER VICES AND WORK
2
3 1. Reimbursement for the services and work described in SECTION 1.0 (Statement of Work) of
4 this Agreement shall be made by the County and paid to the City during the performance of
5 this Agreement, in accordance with the "Project Delivery Operating Budget" as described in
6 Attachment C. Requests for payment should be made, at a minimum, on a monthly basis.
7
8 2. The County shall make payment to the City through reimbursement of costs incurred by the
9 City in performance and execution of the work and services under this Agreement, in
10 accordance with the "Monthly Performance Report" attached hereto and made a part hereof as
11 Attachment D. Payments shall be made based on the County's receipt of proper and sufficient
12 documentation of such costs, satisfactory to the County. Such documentation shall include,
13 but not be limited to fully executed financial documents for construction finance/acquisition
14 finance; time sheets; vendors' and suppliers' invoices or vouchers; mileage logs, etc.; and/or
15 any other documentation deemed necessary by the County.
16
17 3. This documentation, along with a written request for reimbursement and statement of costs,
18 shall be submitted to the assigned Community Development Specialist/Staff from the Fulton
19 County Department of Housing and Human Services. Two copies of the request and
20 documentation supporting the costs shall be included with the submission.
21
22 SECTION 7.0 — PROGRAM INCOME
23
24 1. Program income, as defined in 24 CFR 570.500 (a), means any gross income received by the
25 recipient (the County) or a Subrecipient (the City) directly generated from the use of CDBG
26 funds, except as provided in paragraph (a)(4) of 570.500. When the program income is
27 generated by an activity that is only partially assisted with CDBG funds, the income shall be
28 prorated to reflect the percentage of CDBG funds used. The City shall inform the County of
29 any program income generated by the City as a result of the expenditure of CDBG funds, by
30 providing the County information on the amount of the program income, how it was
31 generated, and the City's proposed use of the income. Such information shall be provided
32 concurrently with the monthly reports described and required by SECTION 5.0 (Records,
33 Reports and Audits) of this Agreement.
34
35 2. The City shall establish a record-keeping system to track the receipt of program income in
36 accordance with procedures and guidelines established by the County through technical
37 assistance provided to the City.
38
39 3. Any CDBG program income that is received and expended inust be recorded as part of the
40 financial transactions of the grant program. Monthly reporting of program income is required.
41 Monthly reports are due the 10'1' day of each month for activity which occurred in the previous
42 month. Monthly reports must present data regarding the receipt and expenditure of program
43 income.
44
45 4. Any such program income generated by the City may be retained by the City subject to
46 requirements set forth in its Cooperative Agreement with the County and CDBG program
47 regulations (as set forth in 24 CFR 570.504). If the City is retaining program income during
48 the duration of this Agreement, transfers of grant funds by the County to the City shall be
49 adjusted according to the principles described in paragraphs (b)(2)(i) and (ii) of §570.504,
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I which state that all program income must be disbursed for eligible activities before additional
2 cash withdrawals are made by the recipient from the U.S. Treasury.
3
4 5. Program income as reported by the City shall be reconciled periodically with their records
5 through on-site review and/or audit by the County. Such on-site review and/or audit by the
6 County shall take place upon reasonable notice by the County. The City shall fully cooperate
7 with the County in making all records requested by the County available for inspection and
8 duplication.
9
1 o SECTION 8 0 — REVERSION OF ASSETS
11
12 1. Upon expiration or termination of this Agreement, any remaining program income that is
13 either on hand or to be received after the Agreement's expiration, shall be transferred by the
14 City to the County as required by ¢570.503(b)(7) "Agreements with Subrecipients".
15
16 2. Further, in the event that the City should sell or otherwise dispose of any property acquired
17 with Fulton County CDBG funds, the manner of said disposition shall result in the County
18 being reimbursed in the amount of the current fair market value of the property at that time
19 less any portion of the value attributable to expenditures of non-Fulton County CDBG funds.
20 In the event that such a sale or disposition occurs more than ten (10) years after expiration or
21 termination of this Agreement, such reimbursement shall not be required.
22
23 SECTION 9.0 - A10DIFICATION.S' TO AGREEMENT
24
25 1. In the event the City chooses to modify its pre-approved "Statement of Work" by adding or
26 deleting a project, the City shall submit to the County a written request for the approval of
27 such changes two weeks prior to December 1, 2012. No such modification shall become
28 effective unless and until approved by the County in the form of a formal amendment to the
29 City's "Staternent of Work".
30
31 2. Additions or deletions to the "Statement of Work", which have been approved as a part of the
32 County's Consolidated Plan may be allowed one time per Fiscal Year, subject to County
33 approval. The City must submit its request within the time frame referenced above.
34
35 3. The City's failure to request modifications by the date mentioned above shall result in the
36 County's automatic denial of any such modifications to said Pre-Award Agreement and shall
37 be construed as the City's failure to properly and timely fulfill its obligations under this Pre-
38 Award Agreement and will result in the County's right to exercise its options under Section
39 11.0 of this Pre-Award Agreement. The City's failure to request modifications by the date
40 mentioned above shall also result in the County's right to exercise options specified in its year
41 2012-2014 Cooperative Agreement with the City under Section VI: Failure to Carry Out
42 Activities In A Timely Manner.
43
44 4. In the event the City determines that it cannot begin projects as scheduled or complete projects
45 within the time frame indicated by the City in Attachment B: Project Schedule, the City shall
46 request an extension for the start and completion of the project's pre-approved time-frame in
47 writing no later than two weeks prior to December 1, 2012. Failure to obtain such an
48 extension in writing from the County will result in the County's right to exercise options
49 specified in its year 2012-2014 Cooperative Agreement with the City under Section VI:
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I Failure to Carry Out Activities In A Timely Manner.
2
3 SECTION 10. D — COPYRIGHT AND PUBLICITY
4
5 1. No report, snap, or other document produced in whole or in part under this Agreement shall be
6 the subject of an application for copyright by or on behalf of the City without the prior written
7 consent of the County. All such reports, maps, or other documents shall become and be
8 deemed the property of the County and title therein shall automatically vest in the County.
9
lo 2. Further, any publicity given to this project must identify the County prominently as a
11 sponsoring agency. Specifically, at all places of and in all publications concerning, this
12 project, the City agrees to display and make known that the project was assisted under the
13 auspices of the County Community Development Block Grant program. In the event of new
14 construction or substantial rehabilitation, and at the County's discretion, the City shall
15 acknowledge the use of CDBG funds for the project by installation of a permanent plaque at
16 the project site. The County in collaboration with the City shall determine design and copy
17 for the plaque.
18
19 SECTION 11. Q -- ASSIGNMENT OF AGREEMENT
20
21 The City shall not make any purported assignment of this Agreement or any part thereof, or
22 delegate the duties herewith without prior written consent of the County.
23
24 SECTION 12. p — CONFLICT OF INTEREST
25
26 No member, officer, or employee of the County or its designee or agents, no member of the
27 governing body of the County, and no other official of the County who exercises or has
28 exercised any functions or responsibilities with respect to the CDBG-assisted activities or who
29 is in a position to participate in a decision making process or gain inside information with
30 regard to such activities, may obtain a personal or financial interest or benefit in any
31 Agreement, subcontract or agreement with respect thereto, or the proceeds there under, either
32 for themselves or for those with whom they have family or business ties, during their tenure or
33 for one (1 ) year thereafter, unless an exemption in writing from this provision is specifically
34 granted by the U. S. Department of Housing and Urban Development.
35
36 SECTION 13. a - FINDINGS / NON-COMPLIANCE
37
36 1. The City shall be notified in writing by the Project Manager of any Findings or Concerns
39 identified during each monitoring visit. The City shall be given thirty (30) calendar days from
40 the time of written notification by the County for corrective actions to take place. The County
41 will not unreasonably withhold acceptance of corrective actions taken in good faith by the
42 City. Upon the City proving satisfactory corrective action, a letter shall be sent to the City
43 stating that such findings or concerns have been addressed. In the event the City fails to
44 correct the findings or comply with terms and provisions of this Agreement, the County may
45 enforce its interests by way of the following:
46
47 a. Temporarily withhold cash payments pending correction of the deficiency;
48
49 b. Disallow all or part of the cost of the activity or action not in compliance;
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1 C. Wholly or partly suspend or terminate the current award;
2
3 d. Withhold further award; or
4
5 e. Take other remedies that may be legally available.
6
7 SECTION 14.0 - TERMINATION OF AGREEMENT FOR CAUSE
8
9 If the City fails to fulfill in a timely and proper manner its obligations under this Agreement,
10 or in the event that any of the provisions or stipulations of this Agreement are violated by the
11 City, the County shall thereupon have the right to suspend or terminate this Agreement, by
12 giving written notice to the City of its intent to terminate or suspend the Agreement,
13 specifying the reasons for such intention to terminate or suspend the Agreement. Unless
14 within ten (10) calendar days after serving of such notice (by hand delivery or posting in the
15 U.S. Mail) upon the City such violation or delay shall cease or arrangements for correction
16 satisfactory to the County be made, the Agreement shall, upon expiration of said (10) ten
17 calendar days, be suspended or terminated without further notice. Upon such suspension or
18 termination, the City will be compensated by the County for expenses deemed by the County
19 to be due and reasonable.
20
21 SECTION 15.0 -.MINORITY B USINESS ENTERPRISE (MBEIFBE) PAR TICIPA TION
22
23 As required by Office of Management and Budget (DMS) Circular A-102, it is national policy
24 to award a fair share of contracts to small and minority business firms. All HUD grantees must
25 take appropriate affirmative action to support minority and women's enterprises, and are
26 encouraged to procure goods and services from labor surplus areas. Therefore, the City shall
27 take affirmative steps to ensure that minority {MBE} and female (FBE) business enterprises
28 are utilized during the course of this Agreement, and that a fair share of any contracts
29 generated during such course are awarded to such firms.
30
31 SECTION 16.0 -LABOR STANDARDS
32
33 The City shall comply with all Federal Labor Standards Requirements imposed by the Davis-
34 Bacon Act; the Contract Work Hours and Safety Standards Act; the Copeland Act; and the
35 Fair Labor Standards Act. As a requirement of the Fair Labor Standards Act, the City must
36 ensure that a copy of the applicable wage rate decision is included in each contract and
37 subcontract and the Notice to Employees poster that pertains to all Federally-funded projects
38 is to be posted, along with a copy of the wage decision, on all construction sites. This
39 information must be posted in a conspicuous location accessible to those employed under any
40 contract funded with CDBG funds. The Federal Labor Standards Provisions are attached
41 hereto and made a part hereof as Attachment E.
42
43 SECTION 17.0 - HB 87 ILLEGAL IMMIGRATION REFORM
44
45 Among other measures, the Illegal Immigration and Reform Enforcement Act of 2011:
46 - Requires subcontractors and sub-subcontractors to submit their E-Verify affidavits to the
47 contractors working on public projects. The contractor then must forward affidavits to the
48 local government within five (5) days of receipt. The Department of Audits will create a form
49 affidavit.
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1
Attached hereto and made a part hereof as Attachment F is the Georgia Security and
2
Immigration Compliance Act Applicant for Public Benefits Affidavit, the
3
Contractor/Subcontractor/Sub Subcontractor Affidavits.
4
5
SECTION 28.0 - FEDERAL SECTION 3 POLICY
6
7
1.
The work to be performed under this Agreement is subject to the requirements of Section 3 of
8
24 CFR Part 135, Appendixes, (12 U.S.C. 1701U) of the Housing and Urban Development
9
Act of 1968, as amended 12 U.S.C. 1701u (Section 3). It is the policy of the Congress and the
10
purpose of this Section 3 policy to ensure that employment and other economic opportunities
11
generated by Federal financial assistance for housing and community development programs
12
will, to the greatest extent feasible, be directed toward low and very low-income persons,
13
particularly those who are recipients of government assistance for housing.
14
15
2.
The parties to this Agreement agree to comply with HUD's regulations in 24 CFR Part 135,
16
which implement Section 3. As evidenced by their execution of this Agreement, the parties to
17
this Agreement certify that they are under no contractual or other impediment that would
18
prevent them from complying with Part 135 regulations.
19
20
3.
Noncompliance with HUD's regulation in 24 CFR Part 135 may result in sanctions,
21
termination of this Agreement for default, and debarment or suspension from future HUD -
22
funded agreements or contracts.
23
24
4.
Section 3 is a means by which HUD fosters local economic development, neighborhood
25
economic improvement, and individual self-sufficiency. It is the legal basis for providing jobs
26
for residents and awarding contracts to businesses in areas receiving certain types of HUD
27
financial assistance.
28
29
5.
Under Section 3 of the HUD Act of 1968, wherever HUD financial assistance is given for
30
housing or community development, to the greatest extent feasible, economic opportunities
31
will be given to residents and businesses in that area.
32
33
6.
Section 3 covered projects are those in which a combined (or aggregate) amount of covered
34
funding exceeding $200,000, is invested into activities involving housing construction,
35
demolition, rehabilitation, or other public construction—i.e., roads, sewers, community
36
centers, etc. during a program year.
37
38
7.
Contractors or subcontractors that receive contracts in excess of $100,000 for Section 3
39
covered projects/activities are required to comply with the Section 3 regulations in the same
40
manner as direct recipients.
41
42
8.
Section 3 is triggered when the normal completion of construction and rehabilitation projects
43
creates the need for new employment, contracting, or training opportunities.
44
45
9.
The Section 3 regulations should not be construed to mean that recipients are required to hire
46
Section 3 residents or award contracts to Section 3 businesses other than what is needed to
47
complete covered projects/activities.
48
49
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1 10. Accordingly, the recipient must attempt to reach the Section 3 minimum numerical goals
2 found at 24 CFR Part 135.30 by: 1) Awarding 10 percent of the total dollar amount of all
3 covered construction contracts to Section 3 businesses; and 2) Offering 30 percent of new
4 employment opportunities to Section 3 businesses.
5
6 11. If the expenditure of covered funding does not result in new employment, contracting, or
7 training opportunities, the requirements of Section 3 have not been triggered. However, each
8 agency must still submit Section 3 annual reports indicating this information. The Section 3
9 Assurances are attached hereto and made a part hereof as Attachment "G ".
10
11 SECTION 19 0 — PROHIBITION OF USE OF FEDERAL FUNDS FOR LOBBYING
12
13 1. By signing this Agreement, the undersigned City certifies that all activities under this
14 Agreement will adhere to 24 CFR Part 87 (New Restrictions on Lobbying) and, to the best of
15 his/her knowledge and belief, that:
16
17 (A) No Federal appropriated funds have been paid or will be paid, by or on behalf of the
18 City or the undersigned, to any person for influencing or attempting to influence an
19 officer or employee of any agency, a Member of Congress, an officer or employee of
20 Congress, or an employee of a Member of Congress in connection with the awarding
21 of any federal Agreement, the making of any federal grant, the making of any federal
22 loan, the entering into of any cooperative agreement, or the extension, continuation,
23 renewal, amendment, or modification of any federal Agreement, grant, loan or
24 cooperative agreement.
25
26 (B) If any funds other than federal appropriated funds have been paid or will be paid to
27 any person for influencing or attempting to influence an officer or employee of any
28 agency, a Member of Congress, an officer or employee of Congress, or an employee of
29 a Member of Congress in connection with this federal Agreement, grant, loan, or
30 cooperative agreement, the undersigned shall complete and submit Standard Form-
31 LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions.
32
33 (C) The undersigned shall require that the language of this certification be included in the
34 award documents for all sub-awards at all tiers (including subcontracts, subgrants, and
35 Agreements under grants, loans, and cooperative agreements) and that all subrecipients
36 shall certify and disclose accordingly.
37
38 (D) This certification is a material representation of fact upon which reliance was placed
39 when this transaction was made or entered into. Submission of this certification is a
40 prerequisite for making or entering into this transaction imposed by Title 31, U. S.
41 Code, Section 1352. Any person who fails to file the required certification shall be
42 subject to a civil penalty of not less than $10,000 and not more than 5100,000 for each
43 such failure.
44
45 SECTION 20.0 - LEAD BASED PAINT
46
47 On September 15, 2000, HUD published the final rule concerning the control of lead-based
48 paint hazards in housing receiving federal assistance and federally owned housing being sold.
49 These regulations published at 24 CFR Part 35 specify the requirements for treating lead
-g-
P:1HCD-PubliclHCD-CDBG1CommDev\CONTRACT120121Municipality PFIMUNI12PF.Milton.doc
1 hazards to protect those who occupy housing constructed before 1978. This regulation also
2 implements the new requirements, concepts, and tenninology established by the Residential
3 Lead -Based Paint Hazard Reduction Act of 1992, which is Title X of the Housing and
4 Community Development Act of 1992. Should the City propose to use CDBG funds for the
5 rehabilitation or conversion of residential units, the City must meet the requirements of 24
6 CFR Part 35. The County shall provide ongoing technical assistance to the City to assist in
7 meeting these requirements.
8
9 SECTION 2 1. 0 — ENVIRONMENTAL REQUIREMENTS
10
11 The County, City, Sub -Recipients, Contractors, Owners, and Developers shall not undertake
12 any activities that would adversely impact or limit the choice of reasonable alternatives for a
13 project until an Environmental Review has been completed and approved by the County. To
14 this end, the County, Sub -Recipients, Contractors, Owners, and Developers must not expend
15 public or private funds (HUD, other Federal, or non -Federal funds) or execute a legally
16 binding agreement for property acquisition, rehabilitation, conversion, repair or construction
17 pertaining to a specific site until environmental clearance has been achieved. Using any
18 portion of Federal funds for acquisition, rehabilitation, conversion, leasing, repair or
19 construction before, completing the Environmental Review process requires the denial of any
20 Federal funds for that project. The Environmental Review Assurances are attached hereto and
21 made a part hereof as Attachment H.
22
23 1, Conditional Commitment of Funds
24 Further, Notwithstanding, any provision of this Agreement, the parties hereto agree and
25 acknowledge that this Agreement does not constitute a corrimitment of funds or site approval,
26 and that such commitment of funds or approval may occur only upon satisfactory completion
27 of Environmental Review and receipt by the County of a release of funds form the U.S.
28 Department of Housing and Urban Development (HUD), under 24 CFR Part §58.
29 Additionally, the Sub -Recipient or City are prohibited from undertaking or committing any
30 funds to physical or choice -limiting actions, including property acquisition, demolition,
31 movement, rehabilitation, conversion, repair or construction prior to the environmental
32 clearance, and must indicate that the violation of this provision may result in the denial of any
33 funds under the Agreement. The parties further agree that the provision of any funds to the
34 project is conditioned on the County's determination to proceed with, modify or cancel the
35 project based on the results of a subsequent Environmental Review.
36
37 2. Environmental Conditional Clause:
38 Responsible entities ppay enter into an Agreement for the conditional commitment of CDBG
39 funds for a specific project prior to the completion of the Environmental Review process. The
40 responsible entity must ensure that any such agreement does not provide the County
41 Recipient, Sub -Recipient, or City any legal claim to any amount of CDBG fund to be used for
42 the specific project or site unless and until the site has received environmental clearance.
43
44 SECTION 22.0 -- EO UAL ACCESS TO HOUSING IN HUD PROGRAMS
45
45 1. Through final rule effective March 5, 2012 (Equal Access to Housing in HUD Programs
47 Regardless of Sexual Orientation or Gender Identity) 24 CFR Parts 5, 200,203, 236, 400, 570,
48 574, 882, 891, and 982, HUD implements a policy to ensure that its core programs are open to
49 all eligible individuals and families regardless of sexual orientation, gender identity, or marital
P:1HCD-Public\HCl]-CDBGIComniDev\C7NTRACT\20121Municipality PF\MUNI 12PF.Milton.doc
1
2
3
4
5
6
7
2.
8
9
1Q
11
12 3.
13
14
15
1.6
17
18
19
20
21
22
status. This Rule follows a January 24, 2011, proposed rule, which noted evidence suggesting
that lesbian, gay bisexual, and transgender (LGBT) individuals and families are being
arbitrarily excluded from housing opportunities in the private sector.
It is important that HUD and Fulton County ensure that their programs do not involve
discrimination against any individual or family otherwise eligible for HUD -assisted or —
insured housing, but that its policies and programs serve as models for equal housing
opportunity. Failure to comply with the requirements of this Rule will be considered a
violation of the program requirements and will subject the non-compliant grantee to all
sanctions and penalties available for program requirement violations.
Under 24 CFR 5.100 "sexual orientation" is defined -as "homosexuality, heterosexuality, or
bisexuality," a definition that the Office of Personnel Management (OPM) uses in the context
of the federal workforce in its publication "Addressing Sexual Orientation in Federal Civilian
Employment: A Guide to Employee Rights."
4. To promote equal access to HUD's housing programs without regard to sexual orientation or
gender identity HUD prohibits unlawful inquiries regarding sexual orientation or gender
identity. -As proposed, the prohibition precludes owners and operators of HUD -assisted
housing or housing whose fmancing is insured by HUD from inquiring about sexual
orientation or gender identity of an applicant for, or occupant of, the dwelling, whether renter -
or owner -occupied.
23
24 SECTION 23.0 - GOVERNING LA W
25
26 1, This Agreement shall be governed in all respect, as to validity, construction, capacity, and
27 performance or otherwise, by the laws of the State of Georgia.
28
29 2. No report, map, or other document produced in whole or in part under this Agreement shall be
30 the subject of an application for copyright by or on behalf of the City without the prior written
31 consent of the County. All such reports, maps, or other documents shall become and be
32 deemed the property of the County and title therein shall automatically vest in the County.
33
34 3. Further, any publicity given to this project must identify Fulton County prominently as a
35 sponsoring agency. Specifically, at all places of, and all publications concerning this project,
36 the City agrees to display and make known that the project was assisted under the auspices of
37 the Fulton County Community Development Block Grant Program.
38
39 4. The City shall not make any purported assignment of this Agreement or any part thereof, or
40 delegate the duties herewith without prior written consent of the County.
41
42 5. A waiver by either party of any breach or any provision, term, covenant or condition of this
43 Agreement shall not be deemed a waiver of any subsequent breach of the same or any other
44 provision, term, covenant or condition.
45
46 6. The parties agree that each of the provisions included in this Agreement is separate, distinct
47 and severable from the other remaining provisions of this Agreement, and that the invalidity
48 of any Agreement provision shall not affect the validity of any other provision of this
49 Agreement.
P;1HCD-PubliclHCD-CDBCilCommDev1CONT17ACT120121Municipality PFIMUN112PF.Milton.doc
1
2 7. The parties agree that the terms of this Agreement include the entire Agreement between the
3 parties and as such, shall exclusively bind the parties. No other representations, either oral or
4 written, may be used to contradict the ten -ns of this Agreement.
5
6 8. Any notices or communications required or permitted herein shall be sufficiently given if sent
7 by Registered or certified mail, return receipt request, postage prepaid, addressed as follows:
8
9 As to the County:
10 Linda Callaway, CD Specialist
11 Fulton County Housing and Human Services Department
12 137 Peachtree Street, SW, Suite 300
13 Atlanta, GA 30303
14
15 As to the City:
16 Joe Lockwood, Mayor
17 City of Milton
18 13000 Deerfield Parkway, Suite 107-F
19 Milton, GA 30004
20
21 Alternatively, such other addressed as shall be furnished by such notice of the other party.
22
23
24
25
26
27 REMAINDER 4F PA GE INTENTIONALL Y LEFT BLANK.
_,2-
P:1HCD-PubliclHCD-CDBGIComma]ev1CONTRACT120121Musiicipality PFIMUNII2PF.MiFton.doc
IN WITNESS HEREOF, the parties hereisnto have set their hands and seal.
CITY OF MILTON
o e Lockwood
Mayor
ATTEST
Sudie Gordon
City Clerk
DA TE:
SEAL:
APPROVED AS TO FORM:
E>Ken Jarrard, City Attorney
P- Milton, GA
DATE:
FULTON COUNTY
John Eaves, Chairperson
Fulton County Board of Commissioners
A TTEST
Mark Massey, Clerk to the Commission
Fulton County Board of Commissioners
DATE:
SEAL:
APPROVED AS TO CONTENT:
Gerry Easley, Interim Director
Housing & Human Services Department
Venneta Butler, CD Manager
Housing & Human Services Department
APPROVED AS TO FORM:
Office of the County Attorney
DA TE:
13
P:1HCD-PubliclHCD-CDBG1CominDcv\CGNTRACT\20121Municipality HNUN112PF.Milton.doc
IN WITNESS HEREOF, the Parties hereunto have set their hands and seal.
CITY OF MILTON
' Joe Lockwood
.Mayor
A TTEST
Sud ie Gordon
[:>City Clerk
DA TE:
SEAL:
APPROVED AS TO FORM:
Ken Jarrard, City Attorney
Milton, GA
DATE:
FULTON COUNTY
John Eaves, Chairperson
Fulton County Board of Commissioners
ATTEST
Mark Massey, Clerk to the Commission
Fulton County Board of Commissioners
DATE:
SEAL:
APPROVED AS TO CONTENT:
Gerry Easley, Interim Director
Housing & Human Services Department
Venneta Butler, CD Manager
Housing & Human Services Department
APPROVED AS TO FORM.•
Office of the County Attorney
DA TE:
13
P:1HCD-Pub]icIIICD-CDBGICommDev1CONTRACT120121Municipality PFIMUNII2PF.Milton.doc
IN WITNESS HEREOF, the parties hereunto have set their hands and seal.
CITY OF MILTON
—Joe Lockwood
Mayor
ATTEST
udie Gordon
City Clerk
DATE:
SEAL:
APPROVED AS TO FORM:
Ken Jarrard, City Attorney
Milton, GA
F—>DA TE:
FUL TON CO UN TY
John Eaves, Chairperson
Fulton County Board of Cormnissioners
A TTEST
Mark Massey, Clerk to the Commission
Fulton County Board of Commissioners
DATE:
SEAL:
APPROVED AS TO CONTENT:
Gerry Easley, Interim Director
Housing & Human Services Department
Venneta Butler, CD Manager
Housing & Human Services Department
APPROVED AS TO FORM:
Office of the County Attorney
DATE:
13
P:1HCD-Public\HCD-CDBG1ConllnDev\CONTRACT120121Municipality PFIMLTNI I2PF.Milton.doc
YEAR 2012 FULTON COUNTY CDBG PROGRAM
Attachntent A — Statement of Work to be Funded with CDBG
City of Milton — Hopewell House Senior Center Renovation
The 2012 CDBG funds will be used to obtain Architectural Services to rehabilitate a two and a
half acre former residential home/estate for use as a Senior Center. The Senior Center will
provide a social and educational environment for seniors to gather, a place to access hot meals,
participate in gardening (therapeutic horticulture), games and entertainment; all geared towards
promoting the emotional, social and physical wellbeing of the full spectrum of seniors with
various abilities in the community. The Center will become a place where seniors of North
Fulton will find enjoyment and solace and provide a much needed service to a segment of the
Milton City community that is currently underserved.
The site is relatively easily accessible to over 3,341 senior residents that live in Milton and the
Center is expected to serve approximately 2,000 seniors.
14
P:\HCD-Public\ ICD-CDBG1CommDev1CDNTRACT120121MunieipalityPFIMLNII2PF.Milton.doc
YEAR 2012 FULTON COUNTY CDBG PROGRAM
Attachment B — CDBG Public FacilitylImprovement Project Schedule
City of Milton — Hopewell House Senior Center Renovation
FACILITYIIMPROVEMENT
TASKS
DATE
PROVISIONS
Request for Proposals from
Pro Bono or Invitation for Bid- (Architect/Engineering
Oct. 2012
Architects/Engineers/Consultants
Services)
Selection of A&E/Consultants by City
Selection CoinpletedlServices Awarded
Nov. 2012
Design Phase by Architect/Engineer
Design/Specifications in process
Nov. 2012-
Feb. 2013
Environmental Review
Specify COMPLETION date of November 2012
Nov. 2012
w/Annual update of......
Costs and Price Analysis
Perform a cost or price analysis for each procurement
Oct. 2012
activity undertaken with Federal funds to include: A
(Specification List)
comparison of price quotations submitted, market
rices, and similar indicators, together with discounts.
City Award of Bid/Offer
Renovation/Improvement RECORDS - The City of
Milton will maintain procurement records and files for
all purchases made with Federal funds, to include:
Ongoing
Basis for bidder/offerer selection; Justification for lack
of competition when bids or offers are not obtained; and
Basis for the award cost or price.
Letter to Proceed for Contractor
Award Conference
Nov. 2012
Contractual Administration
The City of Milton will maintain a system of contract
Ongoing
administration to ensure contractor conformance with
the terms, conditions, and specifications of the contract
and to ensure adequately and timely follow up of all
procurement activities and purchases. The agency will
evaluate contractor performance and document, as
appropriate, whether contractors have met the terms,
conditions, andspecifications of the contract.
Contractual Start Date of Project
Notice to Proceed
Nov. 2012
Contractual Provisions
Insurance requirements, bonding requirements, housing
Ongoing
location & care of products, etc.
Project Mid -Status
Renovation/Improvement (clear & accurate description
Dec. 2012
of the technical requirements for the work to be
procured by City of Milton.
Project Completion
Close out documentation, final title
February
documentationlretainage of funds/release of liens.
2013
15
P:\HCD-Public\HCD-CDBG\CoinmDevNCONTRACT\2Ot21Municipatity PFIMUNI 12PF.Milton.doe
YEAR 2012 FULTON COUNTY CDBG PROGRAM
Attachment C — Municipality Year 2012 CDBG Project Delivery Operating Budget
City of Milton — Hopewell House Senior Center Renovation
PROJECT DELIVERY OPERATING BUDGET
An operating budget acknowledging costs of all fiatds (CDBG and CITY) for this activity.
PROJECT EXPENSES
DATE
CDBG
CITY
Pre -Development (Architect 1 Consultant 1
December
$53,750.00
$20,250.00
Engineer Design) —
2012
Date
Bud et
$74,000.00
Total for Year 2012 —
December
$53,750.00
$20,250.00
$74,000.00
2012
REIMBURSEMENT EXPENDITURE SCHEDULE
A reim bursem ent schedule acknowledging drawdowns of on 1v CDBG_funds_for this activity.
16
P:II•ICD-PubliclHCD-CDBG1Comm Dev1CONTRACTI2Q 121Muiiicipal ity P FIM[JNI I 2PF.Miltoin.doc
January-
Total
Agency Expenses
December
Submission
Operating
Projections
Date
Bud et
1. Pre -Development
/Construction
$53,750.00
January 2013
$53,750.00
■ Consultant Fees
TOTAL EXPENSES
$53,750.00
16
P:II•ICD-PubliclHCD-CDBG1Comm Dev1CONTRACTI2Q 121Muiiicipal ity P FIM[JNI I 2PF.Miltoin.doc
YEAR 2012 FULTON COUNTY CDBG PROGRAM
Attachment D ----- City of Milton Year 2412 CDBG Puhlie FacilitylImproventent
Monthly Performance Report
Project: Hopewell House Senior Center Renovation
Municipality: City of Milton CDBG Funding Year: 2012
Project Name: CLq of Milton Hopewell House Senior Center Renovation Project
Administering Department: City oL Milton, Community Development Departnxent
Reporting Period From: To:
Project Status:
CDBG allocation amount: $ 53,750.00
Number of Contracts Awarded: (If contract was awarded this reporting
period, attach a copy of the fully executed contract).
Contract Amounts: $ CDBG Amount: $
Contract Amounts: $ CDBG Amount: $
Contract Amounts: $ CDBG Amount: $
Has CDBG spending occurred for this project? ❑ Yes ❑ No
(If payments have been made toward contracts with CDBG funds, attach up-to-date
expenditure and revenue account printouts or similar official financial report)
CDBG project fund balance: $
Agency's Local Match project fund balance: $
Date of Construction start-up:
Date of Notice to Proceed (if different):
Number of days worked on project:
Percentage of project complete: %
Percentage (%} of CDBG funds spent: %
Number of employees/workers on the job site:
Number of subcontractors on site:
Number of subcontractor's employees on site:
Wage decision or modification in use:
Number of submitted payrolls within reporting period:
Number of draw downs within reporting period:
Total amount of draw downs to date: $
CDBG remaining balance: $
Anticipated project completion date:
11. Narrative Description of Project Progress (attach additional sheets as necessary):
17
P:1HCD-Public\HCD-CDBG1ConlniDev\CONTRAC'fQO121Municipaiity PRMUNFl2PF.Milton.doc
YEAR 2012 FULTON COUNTY CDBG PROGRAM
Attachment D — City of Milton Year 2012 CDBG Public Facility/Improvenient
Monthly Performance Report
Project: Hopewell House Senior Center Renovation
III. Project Issues, Considerations, or Problems (attach additional sheets as necessary):
SPECIFIC OUTCOME INDICATORS
I . Client Service Level (check one): Household: Persons:
2. Number of Clients Served This Reporting Period:
3. Qualification of how Clients are Served (Indicate National Objective Compliance):
4. Demographics and Income Required. Income Status of Clients Served.• (not applicable for
limited clientele groups such as abused children, elderly persons, battered spouses, homeless
persons, illiterate persons, severely disabled adults; and migrcantfarm worker, unless clients
are in a noted gffluent area i.e. clients joust be low to moderate income clients.
a. Number of Lower Income Households/Persons (50% Median Income):
b. Number of Very Low Income Households/Persons (30% Median Income):
C. Number of Households/Persons with new or improved access to public facilities:
18
P:1tICD-PubliclHCD-CDB{ \CoiiimDev\CON'rRAC"r120121MunieipalityPFIMLINI 12PF.Milton.doe
YEAR 2012 FULTON COUNTY CDBG PROGRAM
Attachment D — City of Milton Year 2412 CDBG Public Facility/Improvement
Monthly Performance Report
Project: Hopewell House Senior Center Renovation
SPECIFIC OUTCOME INDICATORS
5. Race and Household Status of Clients:
i
iq
Number of White:
Number of Black or African American:
Number of American Indian or Alaska
Native:
Number of Asian:
Number of Native Hawaiian or Other
Pacific Islander:
Number of American Indian or Alaska
Native & White:
Number of Asian & White:
Number of Black or African American
& White:
Number of American Indian or Alaska
Native & Black or African American:
Number of Other Multi -Racial:
Number of Female Headed Households:
19
P;IIICD-Public\RCD-CDBG1CommDevlCON'rRAC'1-�20121Municipality PF1MUNI I2PF.Milton.doc
G
C'"
19
P;IIICD-Public\RCD-CDBG1CommDevlCON'rRAC'1-�20121Municipality PF1MUNI I2PF.Milton.doc
YEAR 2012 FULTON COUNTY CDBG PROGRAM
Attachment D — City of Milton Year 2012 CDBG Public Facilityllniproventent
Monthly Performance Report
Project: Hopewell Hoarse Senior Center Renovation
Submitted by:
Name
Signature
Approved by:
Name
Signature
Date:
Title:
Date:
Title:
20
P:1HCD-PitbliclHCD-CDBG1CommDevlCGN'TRACTQ0121Municipality PFNMW12PF.Milton.doc
YEAR 2012 FULTON COUNTY CDBG PROGRAM
Attachment D-2 — City of Milton 2012 CDBG Public Facility/Improvement
Year -End Performance Report
Prgiect: Hopewell House Senior Center Renovation
Municipality: City of Milton _ CDBG Funding Year: 2012
Project Name: City of Milton Hopewell House Senior Center Renovation Proiect
Administering Department: City of Milton, Community Development Department
Reporting Period From:
I. Project Status:
To:
CDBG allocation amount: $ 53,750.00
Number of Contracts Awarded: (If contract was awarded this reporting
period, attach a copy of the fully executed contract).
Contract Amounts: $ CDBG Amount: $
Contract Amounts: $ CDBG Amount: $
Contract Amounts: $ CDBG Amount: $
Has CDBG spending occurred for this project? ❑ Yes ❑ No
(If payments have been made toward contracts with CDBG funds, attach up-to-date
expenditure and revenue account printouts or similar official financial report)
CDBG project fund balance: $
Agency's Local Match project fund balance: $
Date of Construction start-up:
Date of Notice to Proceed (if different):
Number of days worked on project:
Percentage (%} of project complete: %
Percentage {%} of CDBG funds spent: %
Number of employees/workers on the job site:
Number of subcontractors on site:
Number of subcontractor's employees on site:
Wage decision or modification in use:
Number of submitted payrolls within reporting period:
Number of draw downs within reporting period:
Total amount of draw downs to date: $
CDBG remaining balance: $
Anticipated project completion date:
21
l':IHCD-Public\IICD-CDBG1CommDevICONTRACT120121Municipality PFIMUNI 12PF,Milton.doc
YEAR 2012 FULTON COUNTY CDBG PROGRAM
Attachment D-2 — City of Milton 2012 CDBG Public Facility/lrnprovein ent
Year -Enol Performance Report
Project: Hopewell House Senior Center Renovation
Did the Contractor 1 Subcontractor hire new employees to complete the construction job? If so
how many and if any how inany were local Section 3 residents? (Section 3 residents: Local/ area
residents who are of Low- and Very Low Income who were hired by the Contractor 1
Subcontractor specifically to work on this construction job.)
A
B
C
D
E
F
% of Aggregate
Number of
Number of Staff
% of Total
New Hires
Hours of new
Staff Hours
that are
hires that are
for Section 3
Number of
Number of
Section 3
Section 3
Employees
Section 3
Job Category
New Hires
Residents
Residents
and Trainees
Trainees
Professionals
Technicians
Office/Clerical
Construction
by Trade:
Trade:
Trade:
Trade:
Trade:
Trade:
Other (List):
Tota I:
3 = Publiclindian
4 = Homeless
8 = CDBG State
" Program Codes
Housing
Assistance
Administered
1 = Flexible
A =
9 = Other GD
Subsidy
Development
5 = HOME
Programs
10 = Other
2 = Section
$ = HOME
Housing
2621811
8 =Operation
StatelAdministered
Programs
C =
7 = CDBG
Modernization
Entitlement
22
P;1HCD-PrrbliclHC D-CDSC;1Corn mDev1CONT PACTi20121MLitticipality P FIMLTNI 12PF. Mi lton.doc
YEAR 2012 FULTON COUNTY CDBG PROGRAM
Attachment D-2 — City of Milton 2012 CDBG Public Facility/Improvent ell t
Year -End Performance Report
Proiect: Hopewell House Senior Center- Renovation
II. Narrative Description of Project Progress (attach additional sheets as necessary):
III. Project Issues, Considerations, or Problems (attach additional sheets as necessary):
23
P:IHCI7-Public\HCD-CDSG\CommDev\CONTRACT120121Municipality PFIMUNI I2PF,Milton.doc
YEAR 20.12 FULTON COUNTY CDBG PROGRAM
Attachment D-2 — City of Milton 2012 CDFG Public Facility/Cmprovenzent
Year -End Performance Report
Project: Hopewell House Senior Center Renovation
SPECIFIC OUTCOME INDICATORS
1. Client Service Level (check one): Household: Persons:
2. Number of Clients Served This Fiscal Year:
3. Qualification of how Clients are Served (Indicate National Objective Compliance):
4. Demographics and Income Required. Income Status of Clients Served: (not applicable for
limited clientele groups such as abused children, elderly persons, battered .spouses, homeless
persons, illiterate persons, severely disabled adults: and migrant farm worker, unless clients
are in a noted affluent area i.e. clients must be low to moderate income clients.
a. Number of Moderate Income Households/Persons (50-80% Median Income):
b. Number of Very Low Income Households/Persons (30-50% Median Income):
C. Number of Extremely Low Income HousehoIds/ Persons (0-30% Median Income):
5. Of the Total Number of Persons assisted, how many persons received:
a. New Access to this type of Public Facility or Improvement
b. improved Access to this Type of Public Facility or Improvement
C. Access to Public Facility or Improvement that is no longer Substandard
24
P:IHCD-Public\HCI]-CDBG1CommDevICONTRACT120121Municipality PFIMUNII2PF.Milton.doc
YEAR 2012 FULTON COUNTY CDBG PROGRAM
Attachment D-2 — City of Milton 2012 CDBG Public Facility/lmprovement
Year -End Performance Report
Project: Hopewell House Senior Center Renovation
SPECIFIC OUTCOME INDICATORS
b. Race and Household Status of Clients:
Number of White:
Number of Black or African American:
Number of American Indian or Alaska
Native:
Number of Asian:
Number of Native Hawaiian or Other
Pacific Islander:
Number of American Indian or Alaska
Native & White:
Number of Asian & White:
Number of Black or African American
& White:
Number of American Indian or Alaska
Native & Black or African American:
Number of Other Multi -Racial
Number of Female Headed Households:
25
P:1HCD-Public\I•ICD-CDBG1CommDevlCONTPACT120121Municipality PFIMUNII2PF.Milton.dac
W
v
p
O
'
O D
ti
H
*k
�k ii
F. a
25
P:1HCD-Public\I•ICD-CDBG1CommDevlCONTPACT120121Municipality PFIMUNII2PF.Milton.dac
YEAR 2012 FULTON COUNTY CDBG PROGRAM
Attachment D-2 — City of'Milton 2012 CDBG Public Lacilityllinprovement
Year -End Performance Report
Project: Hopewell House Senior Center Renovation
TOTAL SPECIFIC OUTCOME INDICATORS FOR
FISCAL YEAR 2012
TOTAL ....................................
Submitted by:
Name
Signature
Date:
Title:
Approved by: Date:
Narne
Title:
Signature
26
P:1HCD-PubliclHCD-CDBG1CoinmDevICGNTRACT420121Municipality PFIMLTNI I2PF,Milton,doc
4+ C4
4i "
U
P
Date:
Title:
Approved by: Date:
Narne
Title:
Signature
26
P:1HCD-PubliclHCD-CDBG1CoinmDevICGNTRACT420121Municipality PFIMLTNI I2PF,Milton,doc
YEAR 2012 FULTON COUNTY CDBG PROGRAM
Attachment E — form HUD -4010 (0 712003)
Federal Labor Standards Provisions U.S. Department of Housing
And Urban Development
Office of labor Relations
Applicability
The Project or Program to which the construction work covered by this contract pertains is being assisted by the United
Stages of America and the following Federal Labor Standards Provisions are included in this Contract pursuant to the
provisions applicable to such Federal assistance.
A. 1. (i) Minimum Wages. All laborers and mechanics employed or working upon the site of the work will be paid
unconditionally and not less often than once a week, and without subsequent deduction or rebate on any account (except
such payroll deductions as are permitted by regulations issued by the Secretary of Labor under the Copeland Act (29 CFR
Part 3), the full amount of wages and bona tide fringe benefits (or cash equivalents thereof) due at time of payment
computed at rates not less than those contained in the wage detennination of the Secretary of Labor which is attached
hereto and made a part hereof, regardless of any contractual relationship which may be alleged to exist between the
contractor and such laborers and mechanics. Contributions made or costs reasonably anticipated for bona fide fringe
benefits under Section l(bX2) of the Davis -Bacon Act on behalf of laborers or mechanics are considered wages paid to
such laborers or mechanics, subject to the provisions of 29 CFR 5.5(a)(1)(iv); also, regular contributions made or costs
incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs, which cover the
particular weekly period, are deemed to be constructively made or incurred during such weekly period. Such laborers and
mechanics shall be paid the appropriate wage rate and fringe benefits on the wage determination for the classification of
work actually performed, without regard to skill, except as provided in 29 CFR 5.5(a)(4). Laborers or mechanics
performing work in more than one classification may be compensated at the rate specified for each classification for the
time actually worked therein: Provided, That the employer's payroll records accurately set forth the time spent in each
classification in which work is performed. The wage determination (including any additional classification and wage rates
conformed under 29 CFR 5.5(a) (1) (ii) and the Davis -Bacon poster (WH -1321) shall be posted at all times by the
contractor and its subcontractors at the site of the work in a prominent and accessible, place where it can be easiIy seen by
the workers.
(ii) (a) Any class of laborers or mechanics which is not listed in the wage determination and which is to be employed
under the contract shall be classified in conformance with the wage detennination. HUD shall approve an additional
classification and wage rate and fringe benefits therefore only when the following criteria have been met:
(1) The work to be performed by the classification requested is not performed by a classification in the wage
determination; and
(2) The classification is utilized in the area by the construction industry; and
(3) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates
contained in the wage determination.
(b) If the contractor and the laborers and mechanics to be employed in the classification (if known), or their
representatives, and HUD or its designee agree on the classification and wage rate (including the amount designated for
Fringe benefits where appropriate), a report of the action taken shalt be sent by HUD or its designee to the Administrator of
the Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, Washington, D.C.
20210, The Administrator, or ail authorized representative, will approve, modify, or disapprove every additional
classification action within 30 days of receipt and so advise HUD or its designee or will notify HUD or its designee within
the 34 -day period that additional time is necessary. (Approved by the Office of Management and Budget under OMB
control number 1215-0140.)
(c) In the event the contractor, the laborers or mechanics to be employed in the classification or their representatives, and
HUD or its designee do not agree on the proposed classification and wage rate (including the amount designated For Fringe
benefits, where appropriate), HUD or its designee shall refer the questions, including the views of all interested parties and
the recommendation of HUD or its designee, to the Administrator for determination. The Administrator, or an authorized
representative, will issue a determination within 30 days of receipt and so advise HUD or its designee or will notify HUD
or its designee within the 30 -day period that additional time is necessary. (Approved by the Office of Management and
Budget under DMB Control Number 1215-0144.)
(d) The wage rate (including fringe benefits where appropriate) determined pursuant to subparagraphs (1)(ii)(b) or (c) of
this paragraph, shall be paid to all workers performing work in the classification under this contract from the first day an
which work is performed in the classification,
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(iii) Whenever the minimum wage rate prescribed in the contract for a class of laborers or mechanics includes a Fringe
benefit. which is not expressed as an hourly rate, the contractor shall either pay the benefit as stated in the wage
determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof,
(iv) If the contractor does not make payments to a trustee or other third person, the contractor may consider as part of the
wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona tide fringe benefits
under a plan or program, Provided, That the Secretary of Labor has found, upon the written request of the contractor, that
the applicable standards of the Davis -Bacon Act have been met. The Secretary of Labor may require the contractor to set
aside in a separate account assets for the meeting of obligations under the plan or program. (Approved by the Office of
Management and Budget under DMB Control Number 1215-0140.)
2. Withholding. HUD or its designee shall upon its own action or upon written request of an authorized representative of
the Department of Labor withhold or cause to be withheld from the contractor under this contract or any other Federal
contract with the same prime contractor, or any other Federally -assisted contract subject to Davis -Bacon prevailing wage
requirements, which is held by the same prime contractor so much of the accrued payments or advances as may be
considered necessary to pay laborers and mechanics, including apprentices, trainees and helpers, employed by the
contractor or any subcontractor the full amount of wages required by the contract. In the event of failure to pay any
laborer or mechanic, including any apprentice, trainee or helper, employed or working on the site of the work, all or part of
the wages required by the contract, HUD or its designee may, after written notice to the contractor, sponsor, applicant, or
owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of
funds until such violations have ceased. HUD or its designee may, atter written notice to the contractor, disburse such
amounts withheld for and on account of the contractor or subcontractor to the respective employees to whom they are due.
The Comptroller General shall make such disbursements in the case of direct Davis -Bacon Act contracts.
3. (i) Payrolls and basic records. Payrolls and basic records relating thereto shall be maintained by the contractor during
the course of the work preserved For a period of three years thereafter For all laborers and mechanics working at the site of
the work. Such records shall contain the name, address, and social security number of each such worker, his or her correct
classification, hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits
or cash equivalents thereof of the types described in Section l (b) (2) (B) of the Davis -bacon Act), daily and weekly
number of hours worked, deductions made and actual wages paid. Whenever the Secretary of Labor has found under 29
CFR 5.5 (a) (1) (iv) that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in
providing benefits wider a plan or program described in Section I(b)(2)(B) of the Davis -Bacon Act, the contractor shall
maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program is
financially responsible, and that the plan or program has been communicated in writing to the laborers or mechanics
affected, and records which show the costs anticipated or the actual cost incurred in providing such benefits. Contractors
employing apprentices or trainees under approved programs shall maintain written evidence of the registration of
apprenticeship programs and certification of trainee programs, the registration of the apprentices and trainees, and the
ratios and wage rates prescribed in the applicable programs. (Approved by the Office of Management and Budget under
OMB Control Numbers 1215-0140 and 1215-0017.)
(ii) (a) The contractor shall submit weekly for each week in which any contract work is performed a copy of all payrolls to
HUD or its designee if the agency is a party to the contract, but if the agency is not such a party, the contractor will submit
the payrolls to the applicant sponsor, or owner, as the case may be, for transmission to HUD or its designee. The payrolls
submitted shall set out accurately and completely all of the information required to be maintained under 29 CFR 5.5(a) (3)
(i), This information may be submitted in any form desired. Optional Form VvH-347 is available for this purpose and may
be purchased from the Superintendent of Documents (Federal Stock Number 029-005-40014-1), U.S. Government
Printing Office, Washington, DC 20402. The prime contractor is responsible for the submission of copies of payrolls by
all subcontractors. (Approved by the Office of Management and Budget under OMB Control Number 1215-0149.)
(b) Each payroll submitted shall be accompanied by a "Statement of Compliance", signed by the contractor or
subcontractor or his or her agent who pays or supervises the payment of the persons employed under the contract and shall
certify the following:
(1) That the payroll for the payroll period contains the information required to be maintained under 29 CFR 5.5 (a)(3)(i)
and that such information is correct and complete;
(2) That each laborer or mechanic (including each helper, apprentice, and trainee) employed on the contract during the
payroll period has been paid the full weekly wages earned, without rebate, either directly or indirectly, and that no
deductions have been made either directly or indirectly from the full wages earned, other than permissible deductions as
set forth in 29 CFR Part 3;
(3) That each laborer or mechanic has been paid not less than the applicable wage rates and fringe benefits or cash
equivalents for the classification of work performed, as specified in the applicable wage determination incorporated into
the contract.
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(c) The weekly submission of a properly executed certification set forth on the reverse side of Optional Form WH -347
shall satisfy the requirement for submission of the "Statement of Compliance" a,equired by subparagraph A.3.(ii)(b).
(d) The falsification of any of the above certifications may subject the contractor or subcontractor to civil or criminal
prosecution under Section 1401 of Title 18 and Section 231 of Title 31 of the United States Code.
(iii) The contractor or subcontractor shall make the records required under subparagraph A.3.(i) available for inspection,
copying, or transcription by authorized representatives of HUD or its designee or the Department of Labor, and shall
permit such representatives to interview employees during working hours on the job. If the contractor or subcontractor
fails to submit the required records or to make them available, HUD or its designee may, atter written notice to the
contractor, sponsor. applicant, or owner, take such action as may be necessary to cause the suspension of any further
payment, advance, or guarantee of funds. Furthermore, failure to submit the required records upon request or to make
such records available may be grounds for debarment action pursuant to 29 CFR 5.12.
4. Apprentices and Trainees.
(i) Apprentices. Apprentices will be permitted to work at less than the predetermined rate for the work they performed
when they are employed pursuant to and individually registered in a bona fide apprenticeship program registered with the
U.S. Department of Labor, Employment and Training Administration, Office of Apprenticeship Training, Employer and
Labor Services, or with a State Apprenticeship Agency recognized by the Office, or if a person is employed in his or her
first 90 days of probationary employment as an apprentice in such an apprenticeship program, who is not individually
registered in the program, but who has been certified by the Office of Apprenticeship Training, Employer and Labor
Services or a State Apprenticeship Agency (where appropriate) to be eligible for probationary employment as an
apprentice. The allowable ratio of apprentices to journeymen on the job site in any craft classification shall not be greater
than the ratio permitted to the contractor as to the entire work force under the registered program. Any worker listed on a
payroll at an apprentice wage rate, who is not registered or otherwise employed as stated above, shall be paid not less than
the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any
apprentice performing work on the job site in excess of the ratio permitted under the registered program shall be paid not
less than the applicable wage rate on the wage determination for the work actually performed. Where a contractor is
performing construction on a project in a locality other than that in which its program is registered, the ratios and wage
rates (expressed in percentages of the journeyman's hourly rate) specified in the contractor's or subcontractor's registered
program shall be observed. Every apprentice must be paid at not less than the rate specified in the registered program for
the apprentice's level of progress, expressed as a percentage of the journeymen hourly rate specified in the applicable
wage determination. Apprentices shall be paid fringe benefits in accordance with the provisions of the apprenticeship
program. If the apprenticeship program does not specify fringe benefits, apprentices must be paid the full amount of fringe
benefits listed on the wage determination for the applicable classification. If the Administrator determines that a different
practice prevails for the applicable apprentice classification, fringes shall be paid in accordance with that determination.
In the event the Office of Apprenticeship Training, Employer and Labor Services, or a State Apprenticeship Agency
recognized by the Office, withdraws approval of an apprenticeship program, the contractor will no longer be permitted to
utilize apprentices at less than the applicable predetermined rate for the work performed until an acceptable program is
approved.
(ii) Trainees. Except as provided in 29 CFR 5.16, trainees will not be permitted to work at less than the predetermined
rate for the work performed unless they are employed pursuant to and individually registered in a program which has
received prior approval, evidenced by formai certification by the U.S. Department of Labor, Employment and Training
Administration. The ratio of trainees to journeymen on the job site shall not be greater than permitted under the plan
approved by the Employment and Training Administration. Every trainee must be paid at not less than the rate specified
in the approved program for the trainee's level of progress, expressed as a percentage of the journeyman hourly rate
specified in the applicable wage determination, Trainees shall be paid fringe benefits in accordance with the provisions of
the trainee program. If the trainee program does not mention fringe benefits, trainees shall be paid the full amount of
fringe benefits listed on the wage determination unless the Administrator of the Wage and Hour Division determines that
there is an apprenticeship program associated with the corresponding journeyman wage rate on the wage determination
which provides for less than full fringe benefits for apprentices. Any employee listed on the payroll at a trainee rate who
is not registered and participating in a training plan approved by the Employment and Training Administration shall be
paid not less than the applicable wage rate on the wage determination for the work actually performed. In addition, any
trainee performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less
than the applicable wage rate on the wage determination for the work actually performed. In the event the Employment
and Training Administration withdraws approval of a training program, the contractor will no longer be permitted to
utilize trainees at less than the applicable predetermined rate for the work performed until an acceptable program is
approved.
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(iii) Equal employment opportunity. The utilization of apprentices, trainees and journeymen under 29 CFR Part 5 shall
be in conformity with the equal employment opportunity requirements of Executive Order 11246. as amended, and 29
CFR Part 30.
5. Compliance with Copeland Pict requirements. The contractor shall comply with the requirements of 29 CFA Part 3
which are incorporated by reference in this contract.
6. Subcontracts. The contractor or subcontractor will insert in any subcontracts the clauses contained in subparagraphs I
through 1 l of this paragraph A and such other clauses as HUD or its designee may by appropriate instructions require, and
a copy of the applicable prevailing wage decision, and also a clause requiring the subcontractors to include these clauses in
any lower tier subcontracts. The prime contractor shall be responsible for the compliance by any subcontractor or lower
tier subcontractor with all the contract clauses in this paragraph.
7. Contract termination; debarment. A breach of the contract clauses in 29 CFR 5.5 may be grounds for termination of
the contract and for debarment as a contractor and a subcontractor as provided in 29 CFR 5.12.
8. Compliance with Davis -Bacon and Related Act Requirements. All rul rigs and interpretations of the Davis -Bacon
and Related Acts contained in 29 CFR Parts 1, 3. and 5 are herein incorporated by reference in this contract.
9. Disputes concerning labor standards. Disputes arising out of the labor standards provisions of this contract shall not
be subject to the general disputes clause of this contract. Such disputes shall be resolved in accordance with the
procedures of the Department of Labor set forth in 29 CFR Parts 5, 6. and 7. Disputes within the meaning of this clause
include disputes between the contractor (or any of its subcontractors) and HUD or its designee, the U.S. Department of
Labor, or the employees or their representatives.
10. (i) Certification of Eligibility. By entering into this contract the contractor certifies that neither it (nor he or she) nor
any person or firm who has an interest in the contractor's firm is a person or firm ineligible to be awarded Government
contracts by virtue of Section 3(a) of the Davis -Bacon Act or 29 CFR 5.12(a)(1) or to be awarded HUD contracts or
participate in HUD programs pursuant to 24 CFR Part 24.
(ii) No part of this contract shall be subcontracted to any person or firm ineligible for award of a Government contract by
virtue of Section 3(a) of the Davis -Bacon Act or 29 CFR 5.12(a)(i ) or to be awarded HUD contracts or participate in HUD
programs pursuant to 24 CFR Part 24.
(iii) The penalty for making false statements is prescribed in the U.S. Criminal Code, 18 U.S.C. 1001. Additionally, U.S.
Criminal Code, Section 1 01 0, Title 18, U.S.C., "Federal Housing Administration transactions", provides in part:
"Whoever, for the purpose of ... influencing in any way the action of such Administration.....makes, utters or publishes
any statement knowing the same to be false..... shall be fined not more than $5,000 or imprisoned not more than two
years, or both."
11. Complaints, Proceedings, or Testimony by Employees. No laborer or mechanic to whom the wage, salary, or other
labor standards provisions of this contract are applicable shall be discharged or in any other manner discriminated against
by the Contractor or any subcontractor because such employee has filed any complaint or instituted or caused to be
instituted any proceeding or has testified or is about to testify in any proceeding under or relating to the labor standards
applicable under this Contract to his employer.
B. Contract Work Hours and Safety Standards Act. The provisions of this paragraph B are applicable only where the
amount of the prime contract exceeds $100,000_ As used in this paragraph, the terms "laborers" and "mechanics" include
watchmen and guards.
(1) Overtime requirements. No contractor or subcontractor contracting For any part of the contract work which may
require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any
workweek in which he or she is employed on such work to work in excess of 40 hours in such work week unless such
laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay For all hours
worked in excess oF40 hours in such workweek.
(2) Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set forth in
subparagraph (1) of this paragraph, the contractor and any subcontractor responsible therefore shall be liable for the unpaid
wages. In addition, such contractor and subcontractor shall be liable to the United States (in the case of work done under
contract for the District of Columbia or a territory, to such District or to such territory), for liquidated damages. Such
liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and
guards, employed in violation of the clause set forth in subparagraph (1) of this paragraph, in the sum of $10 for each
calendar day on which such individual was required or permitted to work in excess of the standard workweek of 40 hours
without payment of the overtime wages required by the clause set forth in sub paragraph (i) of this paragraph.
(3) Withholding for unpaid wages and liquidated damages. HUD or its designee shall upon its own action or upon
written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any
moneys payable on account of work performed by the contractor or subcontractor under any such contract or any other
Federal contract with. the same prime contract, or any other Federally -assisted contract subject to the Contract Work Hours
and Safety Standards Act which is held by the same prime contractor such sums as may be determined to be necessary to
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satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as provided in the
clause set forth in subparagraph (2) of this paragraph.
(4) Subcontracts. The contractor or subcontractor shall insert in any subcontracts the clauses set forth in subparagraph (1)
through (4) of this paragraph and also a clause requiring the subcontractors to include these clauses in any lover tier
subcontracts. The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor
with the clauses set forth in subparagraphs (1) through (4) of this paragraph.
C. Health and Safety. The provisions of this paragraph C are applicable only where the amount of the prime contract
exceeds $100,000.
(1) No laborer or mechanic shall be required to work in surroundings or under working conditions which are unsanitary,
hazardous. or dangerous to his health and safety as determined under construction safety and health standards promulgated
by the Secretary of Labor by regulation.
(2) The Contractor shall comply with all regulations issued by the Secretary of Labor pursuant to Title 29 Part 1926 and
failure to comply may result in imposition of sanctions pursuant to the Contract Work Hours and Safety Standards Act, 40
USC 3701 et seq.
(3) The Contractor shall include the provisions of this paragraph in every subcontract so that such provisions will be
binding on each subcontractor. The Contractor shall take such action with respect to any subcontract as the Secretary of
Housing and Urban Development or the Secretary of Labor shall direct as a means of enforcing such provisions.
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YEAR 2 01 FUL TON COUNTY CDBG PR0GRAM
Attachment F — Policy 100-28
Georgia Security and Immigration Compliance Act (01/01/2010)
Georgia Security and Immigration Compliance Act
Policy
It is the policy of Fulton County Government, its agencies, departments, and agents to comply
with the Georgia Security and Immigration Compliance Act (GSICA), as amended from time to
time. The Illegal Immigration and Reform Enforcement Act of 2011: requires Fulton County to
require at a minimum, subcontractors and sub -subcontractors to submit their E -Verify affidavits
to the contractors working on public projects. The contractor then must forward affidavits to the
local government within five days of receipt. The Department of Audits will create a form
affidavit by August 1, 2011. Until Fulton County is in receipt of the forms, the contractors shall
submit forms indicated as "Affidavit Verifying Status of Benefit Applicant, City's Affidavit,
Contractor's Affidavit and Subcontractor's Affidavit" attached hereto.
This law requires Fulton County to enforce among other measures, the Illegal Immigration and
Reform Enforcement Act of 2011:
HB 87 ILLEGAL IMMIGRATION REFORM
- Requires subcontractors and sub -subcontractors to submit their E -Verify affidavits to
the contractors working on public projects. The contractor then must forward affidavits
to the local government within five days of receipt. The Department of Audits will create
a form affidavit by August 1, 2011.
- Requires local governments to submit E -Verify compliance reports to the state auditor
annually by December 31. If the auditor finds a violation in this reporting, the county or
city has 30 days to demonstrate compliance or will lose their qualified local government
status. Local governments in disagreement may seek relief through the Office of State
Administrative hearings. Counties will not be held responsible for the failure of
Constitutional Officers failing to abide by this requirement.
- Creates an offense of aggravated identify fraud for those knowingly using fake
identification to obtain employment with the punishment being from 1-15 years in prison
and a fine of up to $250,000.
- Authorizes law enforcement officers to verify, through one of several listed documents
or immigration verification programs, the immigration status of those they have probable
cause to suspect of committing a criminal offense. If the person is found to be an illegal
immigrant, the officer may take any action authorized by state or federal law, and has
immunity from damages or liability in the process.
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- Allows, local law enforcement agencies to arrest any person for a violation of federal
immigration law when authorized by federal law.
- Requires private businesses with more than 10 employees to sign an affidavit and attest
they are registered to use E -Verify in order to obtain or renew a local business license,
occupation tax certificate or other document required to operate a business. Counties and
cities must file a report annually, to the Department of Audits, which identifies each
license or certificate they issued during the year - to include the name of the person and
business and their E -Verify number. Any person, including county employees, who
knowingly violate this reporting requirement shall be guilty of a misdemeanor.
-- Requires any applicant who applies for a public benefit (or who must provide
identification for any official purpose) to provide secure and verifiable documents to the
county to prove their legal status. Local government employees in willful violation are
guilty of a misdemeanor, Each year the Attorney General will provide a list of "secure
and verifiable" documents.
- Creates the Immigration Enforcement Review Board, attached to the Department of
Audits, which will take complaints, investigate and enforce the provisions of this Act.
Background
Senate Bill 529, the "Georgia Security and Immigration Compliance Act" of 2006, established
new work eligibility verification requirements for Fulton County and its contractors and
subcontractors, effective July 1, 2007, The Act further prohibited the provision of certain
services or benefits to any adult without a verification of their immigration status. Additionally,
GSCIA required the County to make a reasonable effort to verify the immigration status of any
foreign national charged with and jailed for a felony or DUI.
During the 2009 Legislative Session, House Bill 2 amended several sections of the Georgia Code
that make up the GSCIA. Effective January 1, 2009, HB 2 --
Mandates public employers to post their federal identification number and date of
authorization on their website;
• Requires a signed, notarized affidavit from contractors attesting registration and
participation in E -Verify;
• Defines the term "applicant" for public benefits;
• Expands the definition of "public benefits";
• Clarifies the annual reporting requirement;
Calls for a reasonable effort to determine a person's nationality when any person is
confined in compliance with Article 36 of the Vienna Convention on Consular Relations.
• Directs the County Jailer to inform a foreign national prisoner of their right to have their
native country's local consular office notified of their detention and to allow a consular
officer from their native country to visit, converse, correspond, and arrange for legal
representation; and
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• Establishes penalties for noncompliance.
Applicability
Effective January 1, 2010, this policy will apply to Fulton County departments and agencies,
contractors, and to the staffs of elected officials.
Definitions
(1) Applicant means any person 18 years of age or older, who has made application for access to
public benefits on behalf of an individual, business, corporation, partnership, or other private
entity.
(2) Contractor means contractors, contract employees, staffing agencies, or subcontractors.
(3) Public benefit means —
a). any grant, contract, loan, professional license, or commercial license provided by Fulton
County or by appropriated funds of the United States, State of Georgia or Fulton County;
b). Any retirement, welfare, health, disability, public or assisted housing, postsecondary
education, food assistance, unemployment benefit, or any other similar benefit for which
payments of assistance are provided to an individual, household, or family eligibility unit
by an agency of Fulton County government, or by appropriated Federal, State or County
funds including —
Adult education
• Authorization to conduct a commercial enterprise or business
• Business certificate, license or registration
Business loan
Cash allowance
• Disability assistance or insurance
• Down payment assistance
• Energy assistance
Food stamps
• Gaming license
Health benefits
Housing allowance, grant, guarantee or loan
Loan guarantee
• Medicaid
• Occupational license
Professional license
• Registration of a regulated business
• Rent assistance or subsidy
State grant or loan
Tax certificate required to conduct a commercial business
• Temporary assistance for needy families (TANF)
• Unemployment insurance
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• Welfare to work
(4) Foreign national means any individual who is a citizen of a country other than the United
States.
(5) Qualified alien means --
a). an alien who is lawfully admitted for permanent residence under the federal Immigration
and Nationality Act (INA);
b). an alien who is granted asylum under Section 208 of the INA;
c). a refugee who is admitted to the United States under Section 207 of the INA;
d). an alien who is paroled into the United States under Section 212(d)(5) of the INA for a
period of at least one year;
e), an alien whose deportation is being withheld under Section 243(h) of the INA (as in
effect prior to April 1, 1997) or whose removal has been withheld under Section
241(b)(3);
f). an alien who is granted conditional entry pursuant to Section 203(a)(7) of the INA as in
effect prior to April 1, 1980;
g), an alien who is a Cuban/Haitian Entrant as defined by Section 501(e) of the Refugee
Education Assistance Act of 1980; and
h). an alien who has been battered or subjected to extreme cruelty, or whose child or parent
has been battered or subject to extreme cruelty.
(6) Systematic Alien Ver fication for Entitlements Program (SAVE) means an
intergovernmental information sharing initiative of the United States Department of
Homeland Security designed to assist in determining a non -citizen applicant's immigration
status.
Responsibilities and Procedures
(1) Generally.
a). All appointing authorities shall verify the immigration status of every newly hired
employee according to County Policy 100-27.
b). All agencies providing a public benefit shall register with the SAVE program at
https:Hsave.uscis.gov/Registration, enter into a Memorandum of Understanding with the
SAVE program, and establish a purchase order for the payment of transaction fees.
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c). All agencies providing a public benefit, shall verify the lawful presence of every person
18 years of age or older who applies for state or local public benefits by requiring each
applicant to execute an affidavit in the format attached as "Attachment A", affirming that
he or she is a legal permanent resident, or a qualified alien lawfully present in the United
States. The affidavit is presumed to be proof of lawful presence until eligibility
verification is made through the federal Systematic Alien Verification Entitlement
(SAVE) program.
d}. All agencies providing a public benefit shall verify the lawful status of all applicants
stating that they are aliens lawfully present in the United States through the SAVE
program.
e). All applicants that are not lawfully present in the United States shall be ineligible to
receive public benefits.
e). Verification of lawful presence is not required for the following benefits:
• Treatment of emergency medical conditions;
Short-term, non-cash emergency disaster relief;
Immunizations;
• Certain in-kind services, such as soup kitchens, short-term shelter, crisis counseling
and intervention provided by public and nonprofit agencies that are necessary for the
protection of life or safety;
• Prenatal care;
• Postsecondary education under specified circumstances;
• Certain community development assistance or financial assistance programs
administered by HUD;
• Other Federal programs including certain social security and Medicare benefits under
specified conditions.
(2) Office of the County Attorney. The Office of the County Attorney shall --
a), Require each contract or agreement for the performance of services between Fulton
County and a contractor or subcontractor to include a provision stating that compliance
with GCGA § 13-10-91 is a condition of the contact and directs the contractor or
subcontractor to register and participate in a Federal work authorization program.
b). Ensure that each agreement between Fulton County and a contractor/subcontractor for the
performance of services includes an executed affidavit verifying compliance with OCGA
§ 13-10-91 in the form provided for in Attachments "F-1" and/or "F-2".
(3) Dfflee of Intergoverninental Affairs. The Office of Intergovernmental Affairs shall --
a). Submit to the Board of Commissioners for its approval during a Regular or Recess
Meeting in December of each year, a report documenting Fulton County's compliance
36
P:1tICD-Public\HCD-C DBG,CommDevICDNTRACT120121Mwiicipality PUNUNII2PF.Milton.doc
with the GSICA.
b). Provide an annual report on or before January 1 to the Georgia Department of
Community Affairs (DCA), in a format prescribed by DCA, documenting Fulton
County's compliance with the GSICA, and identifying each public benefit administered
by Fulton County.
(4) Department oflnformation Technolog}v. The Department of Information Technology
shall post the County's federally issued identification number (58-6001729) and date of
authorization (date to be provided ) on the County's website.
(5) Personnel Department. The Personnel Department shall monitor new employee work
eligibility as required by OCGA § 13-10-91.
(6) Department of Purchasing and Contract Compliance. The Department of Purchasing
and Contract Compliance shall —
a). Require all contractors and subcontractors to register and participate in the federal work
authorization program "E -Verify". No contractor shall perform any services unless the
contractor or subcontractor registers and participates in a federal work authorization
program.
b). Require a signed, notarized affidavit from contractors attesting to their registration and
participation in the E -Verify program before considering a bid from the contractor for the
performance of any service.
(7) Sherif f's Dfce. The Fulton County Sheriffs Office shall —
a). Make a reasonable effort to determine the nationality of a person confined to the Fulton
County Jail for any period of time and charged with a felony, DUI, driving without a
license, or a serious misdemeanor.
b). if the Jail identifies the prisoner as a foreign national, the Sheriff's Office shall make a
reasonable effort to determine if the detainee has been lawfully admitted into the United
States, and if lawfully admitted, that such lawful status has not expired.
c). Inform a detained foreign national of their right to have their native country's local
consular office notified of their detention and of their right to have a consular officer
from their country arrange for legal representation.
d). Contact the Law Enforcement Support Center of the United States Department of
Homeland Security within 48 hours if verification of lawful status cannot be made from
documents in possession of the detainee.
e). Release from custody, pursuant to the admissions and release policies of the Fulton
County Sheriff s Office, a detained foreign national unless the Jail receives a valid
notification of pending charges from the United States Department of Homeland Security
or another agency.
37
P:1HCD-PubliclHCD-CDSG1ComiiiDev\CONTRACT12a12Nunicipality PFI1\4UNII2PF.MiIton.doc
t). Follow the guidelines and procedures developed by the Georgia Sheriffs Association
pertaining to the determination of national and immigration status of certain persons
admitted into the Fulton County Jail.
Departmental Sponsor: Office of the County Manager.
Policy Review Date: December 31, 2014
References
Vienna Convention on Consular Relations, Article 36 "Communication and Contract with
Nationals of the Sending State"
• 8 U.S.C. § 1611, 1621 and 1623
• 42 U.S.C. § 1395 b(v)(30)
Immigration Reform and Control Act of 1986, Public Law 99-603
• Georgia Security and Immigration Compliance Act of 2006, Act 457 2006 Georgia General
Assembly
Official Code of Georgia sections 13-10-90, 13-10-91, 42-4-14,50-13-1, 50-36-1
Georgia Department of Labor Rules § 300- 10-1 -01 through 300-10-1-.09
Fulton County Policy 100-27, "Immigration Reform and Control Act (1RCA)"
Attachments
Attachment F-1: Applicant for Public Benefits Affidavit
Attachment F-2: Contractor/Subcontractor/Sub Subcontractor Affidavit
38
P:1HCD-Pu61ic1HCD-CDBG1CommDev1CONTRACT120121Municipality PPMUNII2PENliiton.doc
YEAR 2012 FULTON COUNTY CDSG PROGRAM
Attachment F-1— Policy 100-28
Georgia Security and Immigration Compliance Act (0110112010)
Affidavit Verifying Status of Benefit Applicant
Pursuant to the Georgia Security and Immigration Compliance Act (O.C.G.A. § 50-36-1),
effective July 1, 2007, every agency in FULTON COUNTY providing public benefits through
any local program is responsible for determining the immigration status of citizen applicants for
said benefits.
By executing this affidavit under oath, as an applicant for benefits, I am stating the following
with respect to my application for benefits from Fulton County Government:
I am a United States citizen or legal permanent resident 18 years of age or older;
M
I am a qualified alien or non-immigrant under the Federal Immigration and
Nationality Act, Title 8 U.S.C., as amended, 18 years of age or older and lawfully present in the
United States. My alien number issued by the U.S. Department of Homeland Security or other
federal immigration agency is
In making the above representation under oath, I understand that any person who knowingly and
willfully makes a false, fictitious, or fraudulent statement or representation in an affidavit shall
be guilty of a violation of O.C.G.A. § 16-10-20.
ignature of Applicant
Printed Name (Joe Lockwood, Mayor)
Date
• SUBSCRIBED TO AND SWORN BEFORE ME ON THIS THE
DAY OF , 20
Notary Public
My Commission Expires:
39
P;IFICD-Publicll-ICD-CDBG1ComnlDev\CONTRAC'l120121Municipality PFIMLM12PF.Mi1ton.doc
YEAR 2012 FULTON COUNTY CDRG PROGRAM
Attachment F-2 — Policy 100-28
Georgia Security and Immigration Compliance Act (0.101/2010)
The City's Affidavit
By executing this affidavit, the undersigned City (herein referred to as "the Contractor") verifies
its compliance with O.C.G.A. § 13-10-91, stating affirmatively that the City of Milton
(hereinafter "Prime Contractor") engaged in the physical performance of services under a
contract with Fulton County Government has registered with and is authorized to use the
federal work authorization program* [any of the electronic verification of work authorization
programs operated by the United States Department of Homeland Security or any equivalent
federal work authorization program operated by the United States Department of Homeland
Security to verity information of newly hired employees, pursuant to the Immigration Reform
and Control Act of 1986 (IRA), [P.L. 99-6031 ], in accordance with the applicability provisions
and deadlines established in O.C.G.A. § 13-10-911. The Prime Contractor further declares that it
is actively using and will continue to use the federal work authorization program throughout the
contract period.
The undersigned further agrees that, should it employ or contract with any subcontractor(s) in
connection with the physical performance of services to this contract with Fulton County
Government, the Prime Contractor will secure from such subcontractor(s) similar verification of
compliance with O.C.G.A. § 13-10-91 on the Subcontractor Affidavit attached hereto. The Prime
Contractor further agrees to maintain records of such compliance and provide a copy of each
verification to the Fulton County Government at the time the subcontractor(s) is retained to
perform such service.
EEVIBasic Pilot Program* User Identification Number
.' BEV/Basic Pilot Program* Date of Authorization
$Y: Joe Lockwood. Authorized Officer of Agent
_Maw
Title of Authorized Officer or Agent of Prime Contractor
_Joe Lockwood
Printed Name of Authorized Officer or Agent
40
P:1HCD-Pub]ic1HCD-CDBGlCommDev1CDNTRACT12D121Munieipality PRM UNt12PF.Milton.doe
City's Affidavit
SUBSCRIBED TO AND SWORN BEFORE ME ON THIS THE
DAY OF 20_
'Notary Public
My Commission Expires:
Page 2 of 6
NOTE:
* As of the effective date of O.C.G.A. 13-10-91, the applicable federal work authorization
program is the "EEVIBasic Pilot Program" operated by the U.S. Citizenship and Immigration
Services Bureau of the U.S. Department of Homeland Security, in conjunction with the Social
Security Administration (SSA)
41
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Subcontractor Affidavit Page 3 of
By executing this affidavit, the undersigned subcontractor verifies its compliance with O.C.G.A.
§ 13-10-91, stating affirmatively that the individual, firm or corporation which is engaged in the
physical performance of services under a contract with City of Milton on behalf of Fulton
County Government has registered with and is authorized to use the federal work authorization
program* [any of the electronic verification of work authorization programs operated by the
United States Department of Homeland Security or any equivalent federal work authorization
program operated by the United States Department of Homeland Security to verity information
of newly hired employees, pursuant to the Immigration Reform and Control Act of 1986 (IRA),
[P.L. 99-60311, in accordance with the applicability provisions and deadlines established in
O.C.G.A. § 13-10-91). The Subcontractor further declares that it is actively using and will
continue to use the federal work authorization program throughout the contract period.
EEVIBasic Pilot Program* User Identification Number
EEVIBasic Pilot Program* Date of Authorization
BY: Authorized Officer of Agent
(Insert Subcontractor Name)
Title of Authorized Officer or Agent of Subcontractor
Printed Name of Authorized Officer or Agent
SUBSCRIBED TO AND SWORN BEFORE ME ON THIS THE
DAY OF , 20
42
P:lHCD-Publ is\IICD-CDBG\CommDev1CGNTRACT12Q 121Municipal ity PFIMUNI l 2PF.Mi 1 ton.doc
Subcontractor Affidavit
Notary Public
My Commission Expires:
Page 4 of 6
NOTE:
* As of the effective date of O.C.O.A. 13-10-91, the applicable federal work authorization
program is the "EEVIBasic Pilot Program" operated by the U.S. Citizenship and
Immigration Services Bureau of the U.S. Department of Homeland Security, in conjunction
with the Social Security Administration (SSA)
43
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Sub Subcontractor Affidavit
5 of 6
Page
By executing this affidavit, the undersigned subcontractor verifies its compliance with O.C.G.A.
§ 13-10-91, stating affirmatively that the individual, firm or corporation which is engaged in the
physical performance of services under a contract with City of Milton on behalf of Fulton
County Government has registered with and is authorized to use the federal work authorization
program* [any of the electronic verification of work authorization programs operated by the
United States Department of Homeland Security or any equivalent federal work authorization
program operated by the United States Department of Homeland Security to verity information
of newly hired employees, pursuant to the Immigration Reform and Control Act of 1986 (IRA),
[P.L. 99-6031], in accordance with the applicability provisions and deadlines established in
O.C.G.A. § 13-10-91]. The Sub Subcontractor further declares that it is actively using and will
continue to use the federal work authorization program throughout the contract period.
EEVIBasic Pilot Program* User Identification Number
EEVIBasic Pilot Program* Date of Authorization
BY: Authorized Officer of Agent
(Insert Sub Subcontractor Name)
Title of Authorized Officer or Agent of Sub Subcontractor
Printed Name of Authorized Officer or Agent
SUBSCRIBED TO AND SWORN BEFORE ME ON THIS THE
DAY OF , 20
44
P.\HCD-PubliclHCD-CDBG1CommDevICONTRACT\20121Municipality PF\MW I2PF.Milton,doc
Sub Subcontractor Affidavit
Gof6
Notary Public
My Commission Expires:
P age
NOTE:
* As of the effective date of O.C.G.A. 13-10-91, the applicable federal work authorization
program is the "EEVIBasic Pilot Program" operated by the U.S. Citizenship and
Immigration Services Bureau of the U.S. Department of Homeland Security, in conjunction
with the Social Security Administration (SSA)
45
P:\HCD-Public\HCS-CABG\CommDev\CUNTRAC"['12012\Municipality PFIMUN112PF,Milton.doc
YEAR 2412 FULTON COUNTY CDBG PROGRAM
Attachment G —form HUD -60002 (612001)
Compliance with Section 3 Assurance
Section 3 of the Housing and Urban Development Act of 1968, as amended, 12
U.S.C. 1701u, mandates that the Department ensures that employment and other
economic opportunities generated by its housing and community development
assistance programs are directed toward low- and very -low income persons,
particularly those who are recipients of government assistance housing. The
regulations are found at 24 CFR Part 135. The information will be used by the
Department to monitor program recipients' compliance with Section 3, to assess
the results of the Department's efforts to meet the statutory objectives of Section 3,
to prepare reports to Congress, and by recipients as self-monitoring tool. The data
is entered into a database and will be analyzed and distributed. The collection of
information involves recipients receiving Federal financial assistance for housing
and community development programs covered by Section 3. The information
will be collected annually to assist HUD in meeting its reporting requirements
under Section 8080(e)(6) of the Fair Housing Act and Section 916 of the HCDA of
1992. An assurance of confidentiality is not applicable to this form. The Privacy
Act of 1974 and OMB Circular A-108 are not applicable. The reporting
requirements do not contain sensitive questions. Data is cumulative; personal
identifying inforrnation is not included.
Upon signing this document, recipients receiving Federal financial assistance for
Housing and Community Development projects and activities covered by Section
3, will adhere to the reporting requirements as specified by 24 CFR Part 135 and
HUD Form 60002.
If the recipient agency [Fulton County] receives Section 3 covered funding and invests
these funds into covered projects/activities, but no individual contract with a subrecipient
exceeds $140,000, responsibility for complying with Section 3 only applies to the recipient
agency and not to the subrecipient.
Signature of AuthoriZ�cf Certifying official Applicant
a
Joe Lockwood, Mayor
of Milton
Date
46
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YEAR 2012 FULTON COUNTY CDBG PROGRAM
Attuchnrew G form HUD -60002 (6/2001)
ANNUAL SECTION 3 SUMMARY REPORTING REQUIREMENTS
FOR RECIPIENTS OF HUD COMMUNITY PLANNING & DEVELOPMENT FUNDING
*TECHNICAL ASSISTANCE ON FORM HUD -60002
Why HUD Enforces Section 3?
Each year the U.S. Department of Housing and Urban Development invests billions of federal dollars into
distressed communities for projects designed to build and rehabilitate housing, improve roads, develop
community centers, and otherwise assist families achieve the American Dream.
The Section 3 regulation recognizes that HUD funding typically results in projects/activities that generate
new employment, training and contracting opportunities. These economic opportunities not only
provide "bricks and mortar", but can also positively impact the lives of local residents who live in the
neighborhoods being redeveloped.
Section 3 of the Housing and Urban Development Act of 1968 [12 U.S.C. 1701u and 24 CFR Part 135] is
HUD's legislative directive for providing preference to low- and very low-income residents of the local
community (regardless of race or gender), and the businesses that substantially employ these persons,
for new employment, training, and contracting opportunities resulting from HUD -funded projects.
Further, as a condition of receiving HUD Community Planning and Development assistance, recipients
certify that they will comply with the requirements of Section 3 annually pursuant to 24 CFR 570.607(b).
Accordingly, the Department has the legal responsibility to monitor recipients for compliance and can
impose penalties upon those that fail to meet these obligations.
Applicability of Section 3 to Community Planning & Development Assistance
The requirements of Section 3 apply to recipients of HUD Community Planning and Development
funding exceeding $200,000.
Section 3 covered projects are those in which a (or aggregate) amount of covered funding exceeding
$200,000, is invested into activities involving housing construction, demolition, rehabilitation, or other
public construction—i.e., roads, sewers, community centers, etc -
[Example: Section 3 applies to the combined investment of more than $200,000 into multiple single-
family housing rehabilitation projects during a program year].
Contractors or subcontractors that receive contracts in excess of $100,000 for Section 3 covered
projects/activities are required to comply with the Section 3 regulations in the same manner as direct
recipients.
if the recipient agency receives Section 3 covered funding and invests these funds into covered
projects/activities, but no individual contract exceeds $100,000, responsibility for complying with
Section 3 only aDDlies to the recipient.
Accordingly, the recipient must attempt to reach the Section 3 minimum numerical goals found at 24
CFR Part 135.30 by: 1) Awarding 10 percent of the total dollar amount of all covered construction
contracts to Section 3 businesses; and 2) Offering 30 percent of new employment opportunities to
Section 3 businesses.
47
P:1ffCD-PubliclHCD-C'DSCi1ConiniDed%CON'FRAC'T".20121Mu:iicipality PF\MUNfI2PF.Miiton.doc
Section 3 Covered Community Planning and Development funding
■ Community Development Block Grants (CDBG)
■ Home Investment Partnership Assistance
■ Housing Opportunities for Persons with Aids (HOPWA)
■ Economic Development Initiative (EDI)
■ Brownfield Economic Development Initiative (BEDI)
■ Emergency Shelter Grants
• Homeless Assistance
University Partnership Grants
■ Neighborhood Stimulus Program (NSP)
■ Certain Grants Awarded Under HUD Notices of Funding Availability (NOFAs)
*NOTE: The requirements of Section 3 only apply to the portion(s) of covered funding that were used
for project/activities involving housing construction, rehabilitation, demolition, or other public
construction.
Section 3 applies to the entire covered project or activity regardless of whether the activity was
fully or partially funded with covered assistance.
Section 3 Covered Recipient Agencies
"Recipient" refers to any entity that receives Section 3 covered financial assistance directly from HUD or
from another recipient and includes, but is not limited to any of the following:
■ States; Units of Local Government; Native American Tribes; or other Public Bodies
■ Public or Private Nonprofit Organizations
■ Private Agencies or Institutions
■ Mortgagors; Developers; Limited Dividend Sponsors; Builders; Property Managers;
Community Housing Development Organizations
• Successors, assignees, or transferees of any such entity listed above
■ Recipients do NOT include any ultimate beneficiary under the HUD program that Section 3
applies and does NOT refer to contractors.
Triggering the Requirements of Section 3
Section 3 is triggered when the normal completion of construction and rehabilitation projects creates
the need for new employment, contracting, or training opportunities.
The Section 3 regulations should not be construed to mean that recipients are required to hire Section 3
residents or award contracts to Section 3 businesses other than what is needed to complete covered
projects/activities.
If the expenditure of covered funding does not result in new employment, contracting, or training
opportunities, the requirements of Section 3 have not been triggered. However, each agency must sill
submit Section 3 annual reports indicating this information.
48
P:1HCD-PubliclHCD-CDBG1CommDevlCONTRACT12d121Municipality PFWit]NII2PF.Miltou.duc
Recipient Responsibilities Pursuant to Section 3
Each recipient (and their covered contractors, subcontractors, or subrecipients) are required to comply
with the requirements of Section 3 for employment, training, or contracting opportunities resulting from
the expenditure of covered funding. This responsibility includes:
1. Implementing procedures to notify Section 3 residents and business concerns about training,
employment, and contracting opportunities generated by Section 3 covered assistance;
2. Notifying potential contractors working on Section 3 covered projects of their responsibilities;
3. Incorporating the Section 3 Clause into ail covered solicitations and contracts [see 24 CFR Part
135.38];
4. Facilitating the training and employment of Section 3 residents and the award of contracts to
Section 3 business concerns;
S. Assisting and actively cooperating with the Department in making contractors and
subcontractors comply;
0_ Refraining from entering into contracts with contractors that are in violation of Section 3
regulations;
7. Documenting actions taken to comply with Section 3; and
8. Submitting Section 3 Annual Summary Reports {form HUD -00002} in accordance with 24 CFR
Part 135.90.
In addition to the responsibilities described above, State and County agencies orconsortia that
distribute covered funds to units of local government, nonprofit organizations, or other subrecipients,
must attempt to reach the minimum numerical goals set forth at 24 CFR Part 135.30, regardless of the
number of subrecipients that receive covered funding. State or County agencies must also do the
following:
1. Inform subrecipients about the requirements of Section 3;
2. Assist subrecipients and their contractors with achieving compliance;
3. Monitor subrecipients' performance with respect to meeting the requirements of Section 3;
and
Report to HUD on the cumulative Section 3 activities taking place within their jurisdiction on
an annual basis.
Section} 3 Residents and Business Concerns
Section 3 Residents Are:
1. Residents of Public and Indian Housing; or
Individuals that reside in the metropolitan area or nonmetropolitan county in which the
Section 3 covered assistance is expended and whose income do not exceed the local HUD
income limits set forth for low- or very low-income households.
Section 3 Business Concerns Are One of the Following:
1. Businesses that are 51 percent or more owned by Section 3 residents;
49
PA11C]D-Pubhc\HCD-CDBG\CocnznDev\CON-I-RACT120121Muuicip,,3lity PF\rvlUNI 12PF.MiIton.doc
2. Businesses whose permanent, full-time employees include persons, at least 30 percent of
whom are currently Section 3 residents, or within three years of the date of first employment
with the firm were Section 3 residents; or
Businesses that provide evidence of a commitment to subcontract in excess of 25 percent of
the dollar amount of all subcontracts to be awarded to businesses that meet the
qualifications described above.
In accordance with the regulation, residents and businesses concerns seeking Section 3 preference shall
certify, or submit evidence to the recipient, contractor, subcontractor or subrecipient (if requested)
verifying that they meet the definitions provided above.
Recipients can use their discretion for determining the type of verification that is required by
prospective Section 3 residents and business concerns. Some examples include: proof of residency in a
public housing authority; proof of federal subsidies for housing, food stamps, or unemployment
benefits; and payroll data or other relevant business information.
Section 3 Summary Reports (Form HUD -60002)
Annually, each direct recipient of Community Planning and Development funding is required to submit
form HUD -60002 to HUD's Economic Opportunity Division in Washington, DC. , preferably online from
the following website: www.hud.gov/section3.
Due Date: Form HUD -60002 is due at the same time as annual performance (e.g., CAPERS)
reports
The Section 3 Summary Report shall follow the same program, fiscal, or calendar year as the annual
performance report and should correspond to the covered projects and activities that were
administered during the reporting period.
NOPE: Section 3 reports must be submitted by all agencies that receive Community Planning
and Development funding in excess of $200,000 whether the requirements were
triggered or not.
Determining What Should Be Reported on Form HUD -60002
Section 3 Annual Summary Reports are intended to measure each recipient's efforts to comply with the
statutory and regulatory requirements of Section 3 in its own operations AND those of its covered
contractors, subcontractors, and subrecipients. Each submission of form HUD -60002 should indicate the
following:
■ The total dollar amount of HUD funding that was received by the recipient for covered
projects/ activities during the specified reporting period.
The total number of new employees that were hired by the recipient and/or its covered
contractors, subcontractors, and subrecipients, as a result of performing or completing
covered project activities.
50
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■ The number of new employees that were hired by the recipient (or its covered contractors,
subcontractors, and subrecipients), as a result of covered projects/activities, that met the
definition of a Section 3 resident.
■ The total number of man hours worked on covered projects (optional).
• The aggregate number of hours worked by Section 3 residents on covered projects
(optional).
■ The total number of Section 3 residents that participated in training opportunities that were
made available by the recipient agency, its contractors, subrecipients, or other local
community resource agencies.
■ The total dollar amount of construction and/or non -construction contracts (or subcontracts)
that were awarded with covered funding.
■ The dollar amount of the recipient's construction or non -construction contracts (or
subcontracts) that were awarded to Section 3 business concerns.
■ Retailed narrative descriptions of the specific actions that were taken by the recipient (or its
covered contractors, subcontractors, subrecipients, or others) to comply with the
requirements of Section 3 and/or meet the minimum numerical goals for employment and
contracting opportunities.
Section 3 Reporting and Compliance Determinations
Absent evidence to the contrary, the [department considers recipients of covered funding to be in
compliance with Section 3 if they meet the minimum numerical goals set forth at 24 CFR Part 135.30.
Specifically:
a. 30 percent of the aggregate number of new hires shall be Section 3 residents;
b. 10 percent of the total dollar amount of all covered construction contracts shall be awarded
to Section 3 business concerns; and
c. 3 percent of the total dollar amount of all covered non -construction contracts shall be
awarded to Section 3 business concerns.
Recipients that fail to meet the minimum numerical goals above bear the burden of demonstrating
why it was not possible to do so. Such justifications should describe the efforts that were taken,
barriers encountered, and other relevant information that will enable the Department to make a
compliance determination.
Recipients that submit Section 3 reports containing all zeros, without a sufficient explanation to justify
their submission, are in noncompliance with the requirements of Section 3.
51
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Failure to comply with the requirements of Section 3 may result in sanctions, including: debarment,
suspension, or limited denial of participation in HUD programs pursuant to 24 CFR Part 24.
Recipients that are subject to annual A-133 Audits may also receive an audit finding for failure to submit
form HUD -60002 to HUD.
Important Notes for Submitting Form HUD -60002
■ Recipients must submit a separate form HUD -60002 for each type of covered funding
(separate reports must be submitted for CDBG and HOME funding).
• Use the online Section 3 Summary Reporting System at: www.hud.gov/section3 to ensure that
form HUD- 60002 is received by the Economic Opportunity Division in HUD Headquarters in a
timely manner.
• The "reporting period" option in the online Section 3 Summary Reporting System (box V) fists
quarters but the Section 3 reporting is an annual requirement. Accordingly, recipients should
select Quarter 4 to document the total amount of covered activities/projects that were
completed during the entire reporting period.
• If the recipient (or its covered contractors, subcontractors and subrecipients� did not hire any
new employees during the reporting period, and/or if no covered construction or non -
construction contracts were awarded, the recipient must indicate this in Part III of form H UD -
60002 and certify that this information is true and accurate by penalty of law.
Where Are Reports Submitted
Form HUD -60002 must be submitted to HUD's Economic Opportunity Division, in Washington, DC.
Recipients are strongly encouraged to submit form HUD -60002 online at: www.hud.goylsection3.
Recipients can also download a hard copy of form -HUD 60002 from the website listed above. Hard
copies shall be submitted via fax or mail to:
U.S. Department of Housing and Urban Development
Attn: Economic Opportunity Division
451 Seventh Street, SW
Room 5235
Washington, DC 20410
202-708-1286 (fax)
Additional Section 3 Guidance and Technical Assistance
The Economic Opportunity Division is committed to providing recipient's guidance and technical
assistance for compliance with the requirements of Section 3.
For additional information, please visit the Section 3 website at: www.hud.gov/section3. This webpage
provides the following tools and information:
52
P;IIICD-Public".IICD-CDl3Ci'1CommDev\CON_fRACT12012'..Mtisiicipality PFIMUNII2PF.Milron.doc
■ Section 3 Statute -12 U.S.C. 1701u
• Section 3 Regulation -24 CFR Part 135
• Frequently Asked Questions
• Section 3 Model Programs
• Guidance on Section 3 and Economic Stimulus Funding
■ Guidance an Section 3 and the Neighborhood Stimulus Program (NSP)
■ Sample Section 3 Certification Forms (residents and business concerns)
• Link to HUD's Local Income Eligibility Calculator
• Link to Section 3 Annual Reporting System (form HUD -60002)
• Downloadable Forms
• Contact information for Economic Opportunity Division staff
• Email inquiries on Section 3 can be sent to section3@hud.gov
53
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YEAR 2012 FULTON COUNTY CDBG PROGRAM
Attachment H —form HUD-40076-RHED (0312002)
Environmental Review Assurances
The award of funds under this program is subject to the environmental review requirements of 24
CFR part 50. These requirements only apply to grant -funded projects fully or partially funded by
HUD, undertaken by grantees and all tiers of subgrantees and subcontractors.
When a project is limited to activities described in 24 CFR 50.19, it does not require an
environmental review. All other activities (for example, acquisition of real property,
construction, and alteration) are subject to an environmental review. Since the approval of the
initial grants in this program must occur prior to the identification of properties to be treated, as
is provided for in 24 CFR 50.3(h), the applicant hereby agrees that it will assist Fulton County
CDBG (FC CDBG) Program to comply with 24 CFR part 50, and that the applicant shall:
1. Advise FC CDBG Program of all projects requiring a review under 24 CFR part 50
prior to their approval and supply FC CDBG Program with all available and relevant
information necessary for FC CDBG Program to perform for each property any
environmental review required by 24 CFR part 50;
2. Carry out mitigating measures required by FC CDBG Program or select an alternate
property or project;
3. Not acquire, rehabilitate, convert, lease, repair or construct property, nor commit or
expend FC CDBG Program or local funds for these program activities on a HUD -assisted
project until FC CDBG Program has completed an environmental review to the extent
required under 24 CFR 50 and has given notification of its approval in accordance with
24 CFR 50.3(h)(3); and
4. Include the above requirements in all subgrants and subcontracts.
Signature of Authorized Certifying Official I Applicant
9
e
Joe Lockwood, Mayor
City of Milton
Date
54
P;IIICD-PubliclHCD-CDBG1CommDevICONTRACT120121Municipality PFIMUNII2PF,Mi1ton.doc
City of Milton
13000 Deerfield Parkway, Milton, Georgia 30004
1
To: Honorable Mayor and City Council Members
From: Cindy Eade
Date: Submitted on November 6, 2012 for the November 19, 2012 Regular Council
Meeting
Agenda Item: Consideration of a Resolution To Authorize The Mayor and City Council to
Approve the Submission of a Grant Application to Monarchs Across Georgia for
Funding for a Pollinator Garden
____________________________________________________________________________
Department Recommendation: To approve the submission of a grant application to
Monarchs Across Georgia for funding to establish a pollinator garden at Fire Station #42
(Thompson Road).
Executive Summary: The National Wildlife Committee for the certification of Milton as a
community wildlife habitat has been working for several months to establish a demonstration
garden at the Thompson Road Fire Station. There are several components to the project and
this grant would provide the funding for a pollinator garden that would beautify the property as
well as be of educational value to the community. Committee volunteers, Jim Toler and Marcia
O’Shaughnessy are helping to write the grant proposal along with oversight by Cindy Eade and
Michele McIntosh-Ross.
Funding and Fiscal Impact: We will be requesting a grant of $750 which will be used
for the purchase of native plants that attract butterflies.
Alternatives: We are not asking the City to fund any part of the NWF Community habitat
project and therefore must seek outside funding to accomplish our goals. Having a
demonstration garden on city property earns the committee points towards our city’s
certification.
Legal Review: Not applicable
Concurrent Review:
Chris Lagerbloom, City Manager
Community Development Department
Attachment(s):
Summary of Pollinator Habitat Grant
City of Milton
13000 Deerfield Parkway, Milton, Georgia 30004
2
Monarchs Across Georgia is pleased to announce the availability of grants up to $750.00
for creating and utilizing certified Pollinator Habitats. Projects must create or enhance
an outdoor Pollinator Habitat that fulfills the specific requirements of the Monarchs
Across Georgia Pollinator Habitat Certification. A certificate and sign will be awarded
when the project has been completed.
The project must include an educational component (signage, brochure, program,
outreach, etc.) regarding pollination and promote the Pollinator Habitat Certification
Program.
Eligible Projects
Monarchs Across Georgia Pollinator Habitat grants must be used on a site within the state of
Georgia and can be used to fund the following:
Plants, seeds, soil amendments, mulch, hard-scape (benches, raised beds, arbors...) and
irrigation equipment
Teaching supplies directly used for instruction and related to the project, i.e., seed-
starting/growing system, hand lenses, field guides, children’s books, curriculum guides
Signage, brochure or materials directly related to the project’s educational component
Professional development directly related to the utilization of pollinator habitat (limited to
$250.00)
Grant applications must be submitted online by November 15, 2012. Grant awardees will be
notified via e-mail by December 31, 2012.
STATE OF GEORGIA RESOLUTION NO.
COUNTY OF FULTON
A RESOLUTION TO AUTHORIZE THE MAYOR AND CITY COUNCIL TO
APPROVE THE SUBMISSION OF A GRANT APPLICATION TO MONARCHS
ACROSS GEORGIA FOR FUNDING FOR A POLLINATOR GARDEN
WHEREAS, the Organization, Monarchs Across Georgia along with the US Fish and
Wildlife Service makes available funding for Pollinator habitats in Georgia; and
WHEREAS, such funds are awarded to public and private entities in Georgia for the
establishment of gardens to attract butterflies and other pollinators; and
WHEREAS, the City of Milton is working on a Community Wildlife certification and
pollinator gardens are part of the certification process; and
WHEREAS, the City of Milton has determined that a demonstration garden at the
Thompson Road Fire Station #42 would enhance the property and be an educational
opportunity for the community to learn about gardening for pollinators and wildlife; and
WHEREAS, the City of Milton with committee volunteers have applied for funding
through this grant program; and
WHEREAS, the funding, if awarded, shall be utilized to purchase native pollinator
plants, mulch and hardscape materials for the establishment of a pollinator garden; and
NOW, THEREFORE BE IT SO RESOLVED, this 19th day of November, 2012 by the
Mayor and Council of the City of Milton that the submission of an application to
Monarchs Across Georgia grant program is hereby approved; and if awarded the Mayor
is hereby authorized to execute the grant funding to the city’s Community Wildlife
Habitat Committee to install a pollinator habitat garden at Thompson Road Fire Station,
after January 1, 2013.
RESOLVED, this the 19th day of November, 2012.
Approved:
_______________________________
Joe Lockwood, Mayor
Attest:
__________________________
Sudie AM Gordon, City Clerk (Seal)
1
WAIVER OF CONFLICT
WHEREAS, the City of Milton, Georgia (the “City”) is a municipal corporation of the
State of Georgia; and
WHEREAS, City of Milton Public Buildings and Facilities Authority (the “Authority”)
is a political subdivision of the State of Georgia and a public corporation; and
WHEREAS, the City is now, and has been, represented by the law firm of Jarrard &
Davis, LLP; and
WHEREAS, the Authority is now, and has been, represented by the law firm of Jarrard
& Davis, LLP; and
WHEREAS, the City and the Authority desire to enter into a First Amendment to an
Intergovernmental and Sublease Agreement (the “Amendment”) regarding the Sublease of
certain property from the Authority to the City for use by the City as City Hall; and
WHEREAS, the City recognizes that Jarrard & Davis, LLP’s representation of the
Authority and representation of the City in relation to the Amendment could result in the
appearance of a potential conflict of interest; and
WHEREAS, it appearing that the governing body of the City has considered this issue;
and
WHEREAS, the law firm of Jarrard & Davis, LLP will continue to represent the
Authority and the City;
NOW THEREFORE, in light of the above, the governing body of the City of Milton,
Georgia does hereby waive any apparent or potential conflict of interest arising from or
attributable to JARRARD & DAVIS, LLP’S simultaneous representation of the Authority and
the City regarding the Amendment.
2
This 19th day of November 2012.
CITY OF MILTON, GEORGIA
BY:__________________________________________
Joe Lockwood, Mayor
FIRST AMENDMENT TO INTERGOVERNMENTAL AND SUBLEASE AGREEMENT
BETWEEN CITY OF MILTON AND
CITY OF MILTON PUBLIC BUILDINGS AND FACILITIES AUTHORITY
This FIRST AMENDMENT TO INTERGOVERNMENTAL AND SUBLEASE
AGREEMENT (this “Amendment”) is made this 19th day of November, 2012 by and between
CITY OF MILTON PUBLIC BUILDINGS AND FACILITIES AUTHORITY, a public
body corporate and politic and a public corporation formed under the laws of the State of
Georgia (“Tenant”) and THE CITY OF MILTON, GEORGIA, a municipal corporation
formed under the laws of the State of Georgia (“Subtenant” or “City”) (hereinafter each
individually referred to herein as a “Party” and collectively as the “Parties”).
W I T N E S S E T H:
WHEREAS, the Tenant and Subtenant entered into that certain Intergovernmental and
Sublease Agreement dated July 16, 2012 (the “Sublease”) pursuant to which the Subtenant sub-
leased from the Tenant the entirety of the Premises, as defined in Section 1.a. of the Lease (the
“Premises”); and
WHEREAS, the Tenant and Landlord have agreed to amend the Lease pursuant to the
terms provided in the First Amendment to Office Lease, attached hereto as Exhibit A and
incorporated herein by reference; and
WHEREAS, Tenant and Subtenant wish to amend the Sublease to adopt the terms of the
First Amendment to Office Lease.
NOW THEREFORE, for and in consideration of the mutual obligations contained
herein, ten dollars ($10.00) paid by Subtenant to Tenant, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, Tenant and
Subtenant hereby amend the Sublease to adopt the terms of the First Amendment to Office
Lease, attached hereto as Exhibit A and incorporated herein by reference.
IN WITNESS WHEREOF, the Parties have executed this Amendment as of the day and
year first above written.
[SIGNATURES ON FOLLOWING PAGE]
TENANT:
CITY OF MILTON PUBLIC BUILDINGS AND FACILITIES AUTHORITY, a
public body corporate and politic and a public corporation formed under the laws of the
State of Georgia
By: ___________________________
Name: ________________________
Its: ___________________________
Attest: _______________________
Name: _______________________
Its: __________________________
(AUTHORITY SEAL)
Sworn to and subscribed before me
this ________ day of _______, 2012.
_________________________
Notary Public
(Notary Seal)
SUBTENANT:
CITY OF MILTON, GEORGIA, a municipal corporation formed under the laws of the
State of Georgia
By: __________________________
Name: _______________________
Its: __________________________
Attest: _______________________
Name: _______________________
Its: __________________________
(CITY SEAL)
Sworn to and subscribed before me
this ________ day of _______, 2012.
_________________________
Notary Public
(Notary Seal)
EXHIBIT A
[INSERT COPY OF FIRST AMENDMENT TO OFFICE LEASE]
MIAMI 3320778.2 72496/40923
- 1 -
FIRST AMENDMENT TO OFFICE LEASE
This FIRST AMENDMENT TO OFFICE LEASE (this "Amendment") is made
and entered into this 19th day of November, 2012 by and between LBUBS 2006-C1
NORCROSS OFFICES LIMITED PARTNERSHIP, a Georgia limited partnership
having an address of c/o Colliers International-Atlanta, Inc., 5871 Glenridge Drive, Suite
400, Atlanta, Georgia 30328, Attn: Property Manager (“Landlord”), and CITY OF
MILTON PUBLIC BUILDINGS AND FACILITIES AUTHORITY, a public body
corporate and politic and a public corporation formed under the laws of the State of
Georgia having an address of c/o The City of Milton, Georgia, 13000 Deerfield Parkway,
Suite 107, Milton, GA 30004, Attn: City Manager (“Tenant”).
W I T N E S S E T H:
WHEREAS, Landlord and Tenant entered into that certain Office Lease dated
July 16, 2012 (the “Lease”) pursuant to which Tenant leased from Landlord a certain
premises consisting of 23,809 rentable square feet ("RSF") in Suite 107 of the building
commonly known as Building 100 (the "Building"), located at 13000 Deerfield Parkway,
Milton, Georgia 30004 (the "Original Premises");
WHEREAS, Tenant, pursuant to the Lease, shall surrender a portion of the
Original Premises consisting of 12,017 RSF (the "Released Premises") on January 1,
2014 (the "New Premises Commencement Date"), after which date the Original
Premises shall be deemed to contain 11,792 RSF (the "New Premises"); and
WHEREAS, Landlord and Tenant now wish to amend the Lease on the terms and
conditions contained in this Amendment in order to, among other things, amend the New
Premises Commencement Date.
NOW, THEREFORE, for good and valuable considerations paid by each party to
the other, receipt of which is hereby acknowledged, the parties agree as follows:
1. Incorporation of Recitals; General Provisions. The above recitals are true
and correct and are incorporated herein as if set forth in full. All capitalized terms in this
Amendment shall have the same meaning as in the Lease, except if otherwise noted.
Except as amended and modified by this Amendment, all of the terms, covenants,
conditions, and agreements of the Lease shall remain in full force and effect. In the event
of any conflict between the provisions of the Lease and the provisions of this
Amendment, this Amendment shall control.
2. Basic Definitions and Provisions. Section 1(a) of the Lease is hereby
amended and restated as follows:
"Premises. Rentable Square
Feet (RSF):
MIAMI 3320778.2 72496/40923
- 2 -
Original Premises (Premises
from 10/1/2012 through
6/30/2014):
23,809 square feet (under
BOMA standard of measure
(ANSI-Z 65.1-1996)), as
shown in Exhibit A attached
hereto
New Premises (Premises from
7/1/2014 through 9/30/2016):
11,792 square feet (under
BOMA standard of measure
(ANSI-Z-65.1-1996)), as
shown in Exhibit A attached
hereto
Suite:
Building:
Street Address:
City/County:
State/Zip Code:
107
100
13000 Deerfield Parkway
Milton, Fulton
Georgia, 30004"
3. Base Rent. Section 1(e) of the Lease is hereby amended and restated as
follows:
"Base Rent. The minimum base rent (“Base Rent”) for the Term is payable in
monthly installments on the 1st day of each month in accordance with the
following Base Rent schedule:
Period Annual Rate per RSF Annualized Base Rent Monthly Base Rent
10/1/2012 – 12/31/2012 No Base Rent Due No Base Rent Due No Base Rent Due
1/1/2013 – 12/31/2013 $18.00 $428,562.00† $35,713.50
1/1/2014 – 6/30/2014 $18.50 $220,233.25†∞ $36,705.54
7/1/2014* – 9/30/2014 $18.50 $54,538.00**⌂ $18,179.33
10/1/2014 – 9/30/2015 $19.01 $224,165.92** $18,680.49
10/1/2015 – 9/30/2016 $19.53 $230,297.76** $19,191.48
*New Premises Commencement Date
**Calculated using 11,792 square feet
†Calculated using 23,809 square feet
∞ Represents 6 months Rent
⌂ Represents 3 months Rent
4. New Premises Commencement Date. The definition of the "New
Premises Commencement Date" in Section 2(b) of the Lease is hereby amended to read
as follows: July 1, 2014.
5. Counterparts. This Amendment may be executed in counterparts each of
which shall be deemed an original and all of which together shall constitute one
MIAMI 3320778.2 72496/40923
- 3 -
instrument. A PDF or facsimile signature shall be deemed for all purposes to be an
original.
6. Nondiscrimination. In accordance with Title VI of the Civil Rights Act, as
amended, 42 U.S.C. § 2000d, section 303 of the Age Discrimination Act of 1 975, as
amended, 42 U.S.C. § 6102, section 202 of the Americans with Disabilities Act of 1990,
42 U.S.C. § 12132, and all other provisions of Federal law, the Landlord agrees that,
during performance of the Office Lease, Landlord, for itself, its assignees and successors
in interest, will not discriminate against any employee or applicant for employment, any
subcontractor, or any supplier because of race, color, creed, national origin, gender, age
or disability. In addition, Landlord agrees to comply with all applicable implementing
regulations and shall include the provisions of this Section 6 in every subcontract for
services contemplated under the Office Lease.
7. SAVE Affidavit and Secure Verifiable Document . Pursuant to O.C.G.A.
§ 50-36-1, Tenant must obtain a SAVE Affidavit and a secure and verifiable document
evidencing legal status in the Country of the individual signatory of Landlord each time
that Landlord obtains a public benefit, including any contract, from Tenant. Landlord
hereby verifies that it has, prior to executing this First Amendment to Office Lease,
caused the individual signatory of Landlord to ex ecute a SAVE Affidavit (to be sworn
under oath under criminal penalty of false swearing pursuant to O.C.G.A. § 16-10-71), a
form of which is attached hereto as Exhibit A, and submitted such affidavit to Tenant in
person, electronically, or by mail. Further, Landlord verifies that it has, prior to
executing this First Amendment to Office Lease, submitted a secure and verifiable
document, evidencing the legal status of the individual signatory of Landlord to Tenant
either in person or electronically (in compliance with the Uniform Electronic
Transactions Act). Landlord verifies that the individual signatory of Landlord is in
compliance with the Residency Status of an Applicant for Public Benefit, as required by
the Georgia Security and Immigration Compliance Act (O.C.G.A. § 50-36-1).
IN WITNESS WHEREOF, and intending to be legally bound hereby, the parties
hereto have executed this Agreement the day and year first hereinabove written.
[SIGNATURES ON FOLLOWING PAGE]
MIAMI 3320778.2 72496/40923
- 4 -
LANDLORD:
LBUBS 2006-C1 NORCROSS OFFICES
LIMITED PARTNERSHIP, a Georgia
limited partnership
By: LBUBS 2006-C1 NORCROSS OFFICE
GP, LLC, a Georgia limited liability
company, its general partner
By: LNR PARTNERS, LLC, a Florida
limited liability company, successor
by statutory conversion to LNR
Partners, Inc., a Florida corporation,
its Manager
By: ________________________
Name: ______________________
Title: _______________________
TENANT:
CITY OF MILTON PUBLIC
BUILDINGS AND FACILITIES
AUTHORITY, a public body corporate and
politic and a public corporation formed
under the laws of the State of Georgia
By:
Name:
Title:
MIAMI 3320778.2 72496/40923
- 5 -
EXHIBIT “A”
[INSERT EXECUTED SAVE AFFIDAVIT]
Page 1 of 3
STATE OF GEORGIA
COUNTY OF FULTON RESOLUTION NO.
A RESOLUTION APPOINTING AND AUTHORIZING SPECIAL COUNSEL TO
REPRESENT THE CITY TO OBTAIN A LOCAL OPTION SALES TAX
(“L.O.S.T.”) DISTRIBUTION CERTIFICATION AS REQUIRED UNDER THE
LAWS OF THE STATE OF GEORGIA; TO AUTHORIZE SAID COUNSEL TO
ASSIST IN THE PREPARATION, PRESENTATION AND LITIGATION OF THE
CITY’S CASE; REPEAL INCONSISTENT PROVISIONS; AND FOR OTHER
PURPOSES.
W I T N E S S E T H:
WHEREAS, the City of Milton (“City”) is a municipal corporation duly
organized and existing under the laws of the State of Georgia, and is charged with
providing public services to its residents; and
WHEREAS, the City wishes to cooperate with its fellow cities in mediation and
litigation and work jointly with and through Special Counsel to achieve a fair distribution
of L.O.S.T. proceeds in accordance with the L.O.S.T. enactment; and
WHEREAS, the Mayor and City Council in the exercise of their sound judgment
and discretion, after giving thorough thought to all implications involved, and keeping in
mind the public interest and welfare of the citizens of the City, have determined it to be in
the best interest of the citizens of the City, that this Resolution be adopted.
THEREFORE, IT IS NOW RESOLVED BY THE CITY COUNCIL OF
THE CITY OF MILTON, GEORGIA, AS FOLLOWS:
1. Retention of Special Counsel. The City hereby retains Andrew J. (Andy) Welch,
III, and the law firm of Smith Welch Webb & White (“Special Counsel”) to
represent the City jointly with other cities which adopt a like Resolution. Special
Counsel may be asked by the Mayor or by a majority of the City Council to
appear and provide an update on the status of the mediation and litigation to the
City Council as a whole in accordance with the Open Meetings Act.
2. Authorization to Special Counsel. The City hereby authorizes Special Counsel to
acknowledge service on behalf of the City; to represent the City jointly with other
cities to negotiate and secure a L.O.S.T. distribution certificate or litigate for a
judicially-determined L.O.S.T. distribution certification with the County in
accordance with the laws of the State of Georgia; negotiate settlement, determine
litigation strategy, and to prepare, file and conduct litigation, as needed.
Page 2 of 3
3. Representation of City to Special Counsel. The City represents that it will pay its
portion of legal fees, expert witness fees, and all other costs and expenses of
litigation incurred by Special Counsel.
4. Designated Representation of the City. The Mayor, or his/her designee, is hereby
designated and authorized to serve as the Cities designated representative for
L.O.S.T. mediation and litigation and should be the City’s point of contract for all
communications between Special Counsel and the City.
5. Settlement. Special Counsel agrees that the best and final offer pursuant to
O.C.G.A. 48-8-89(d)(4)(B) or non-judicial entry into a L.O.S.T. distribution
certificate with the County shall be subject to and conditioned upon a final
approval by the majority vote of the Mayor and City Council.
6. Joint Representation and Waiver of Confidentiality. The City acknowledges that
Special Counsel will represent it jointly with other cities which likewise retain
Special Counsel to represent their interest in negotiations and litigation of a
L.O.S.T. Apportionment Agreement and Certification with the County. The City
warrants that its governing body has read the joint-representation letter dated
October 22, 2012 to Milton and attached hereto and incorporated herein as
Exhibit “A” and no conflict of interest exists at this time between the City and any
other of said cities with respect to the joint representation contemplated in this
Resolution. Should a conflict of interest arise, the City agrees to promptly notify
Special Counsel in writing and allow Special Counsel to continue representation
so long as continued representation does not violate the Georgia Rules of
Professional Conduct. The City has had the opportunity to discuss the terms of
this Resolution with its attorney of choice and hereby waives its right to
confidentiality with Special Counsel and the other jointly represented Cities with
respect to Special Counsel performing the representation contemplated in this
Resolution. The Mayor is hereby authorized to execute the Acknowledgment of
joint representation which includes a waiver of confidentiality and conflict
identification as contemplated herein.
7. Additional Documents. The City Council authorizes the Mayor to execute any
documents, including those necessary for negotiation, mediation and litigation,
which may be necessary to effectuate this Resolution.
8. Attestation. The City Council does hereby authorize the City Clerk to attest the
signature of the Mayor appearing on this Resolution and any related documents,
to affix the official seal of the City thereto, as necessary, and to place this
Resolution and an executed copy of any related documents among the official
records of the City for future reference.
9. Severability. To the extent any portion of this Resolution is declared to be
invalid, unenforceable, or nonbinding, that shall not affect the remaining portions
of this Resolution.
Page 3 of 3
10. Repeal of Conflicting Provisions. All City resolutions are hereby repealed to the
extent they are inconsistent with this Resolution.
11. Effective Date. This Resolution shall take effect immediately.
THIS RESOLUTION adopted this 19th day of November, 2012.
____________________________
Joe Lockwood, Mayor
______________________________________
Councilmember Karen Thurman
______________________________________
Councilmember Matt Kunz
______________________________________
Councilmember Bill Lusk
______________________________________
Councilmember Burt Hewitt
______________________________________
Councilmember Joe Longoria
______________________________________
Councilmember Lance Large
ATTEST:
_______________________________
Sudie Gordon, City Clerk
(SEAL)
Ernest M. Smith (191 I -1992) W W W
A. J. Welch, .Ir., PC
Jolin P. Webb, PC
William A. White, PC
Andrew J. Welch, III, PC (NY & GA)
Byrd Garland S M. I T H W E L C HC. Walter Pendergrass, lIl
Pandora E. Palmer, PC (HI & GA) W E B B & W H I T Euc
L. Scott Mayfield
Marc A. Avidano (FL & GA) "'
David M. Waldroup ATTORNEYS A T L A W
Andrew J. Gebhardt
2200 KEYS FERRY COURT • PO BOX 10 • MCDONOUGH, GEORGIA 30253
Telephone: 770-957-3937 •Facsimile: 770-957-9165
www. smithwelchl aw. com
October 22, 2012
Mayor Eva Galambos
City of Sandy Springs
Sandy Springs City Hall
7840 Roswell Road
Sandy Springs, Georgia 30350
RE: Local Option Sales Tax (L.O.S.T.) — Lowndes County
Representation of Special Counsel
Dear Mayor Galambos:
Lindsay M. Hodgson
Santana T. Flanigan (WI & GA)
K~tlierine E. Fagan
Timothy W. Haley
R. Brian Strickland
Careshia N. Moore (FL & GA)
Christopher E. Chapman, PC
(DC, KY & GA)
Elizabeth M. Pool
Lauren A. King
The Cities of Alpharetta, Chattahoochee Hills, College Park, East Point, Fairburn,
Hapeville, Johns Creek, Milton, Mountain Park, Palmetto, Roswell and Sandy Springs,
exclusive of Atlanta, (hereinafter referred to as "Cities") all of Fulton County, Georgia,
have requested that this firm represent them all collectively as Special Counsel in the
above referenced Local Option Sales Tax ("L.O.S.T.") mediation and litigation, if
necessary ("Dispute"). Our engagement as Special Council presents certain ethical issues
requiring your understanding and consent. Set forth below are the proposed terms for. our
joint representation of you and the cities in connection with the Dispute.
I. Introduction
We appreciate that you would like us to represent the City of Snady Springs as
Special Counsel. Although we do not believe that representation of you in the Dispute
precludes us from representing any other City of Fulton County, we must take steps
required by the Georgia Rules of Professional Conduct to address any potential conflict
that may arise between you and other Cities as a result of the transaction. The potential
problem that lies here is that we have been retained as Special Counsel to represent you
and other Cities in the Dispute. As you can see, there are multiple parties being
represented by Special Counsel in this matter.
At the outset, you should know that, in analyzing whether it is appropriate to
represent more than one City, the test is not whether there is a "conflict of interests."
Although we all frequently use that term, a more detailed analysis is appropriate when
considering joint representation of multiple parties.
{Doc: 00995632.DOC}
II. The Applicable Rules of Conduct.
The Georgia Rules of Professional Conduct, Rule 1.7, utilize a test that involves
the question of whether the professional judgment of an attorney is likely to be adversely
affected, which involves four steps for compliance. First, we must consult with potential
Cities client's representatives concerning this issue after you all have read this letter.
Second, all Cities must receive written disclosure of the material risks of the
representation, which are addressed in this letter. Third, all Cities must receive an
opportunity to consult with independent counsel. (Please let this letter serve as your
notice that you may discuss this issue with another lawyer of your choosing). Fourth, all
Cities must consent to this joint representation. (The consent must be given by action of
the governing body of your City.)
III. Full Disclosure
In order to fully comply with Rule 1.7(b), we must disclose the material risks
involved in our representation. First, with respect to the attorney-City privilege, we
advise you that any information disclosed by jointly represented Cities to us in
connection with this engagement will not be protected by the privilege in a subsequent
legal proceeding asserted by or against you involving any jointly represented City.
Moreover, we believe we cannot effectively represent you if information disclosed to us
by any jointly represented City must be preserved by us in confidence from the other. If
we are to represent -all parties, it will only be on the express understanding that each
jointly represented City has waived the attorney-City privilege to the extent, but only to
the extent, that the privilege might otherwise require us to preserve in confidence
information disclosed by one jointly represented City to us from another in this Dispute.
The second material risk would be that any one of the parties could disclose
information learned of the other parties in the course of this representation to Toombs
County or some third party. This may be resolved through the execution of a
confidentiality agreement. By execution of this letter of understanding and your adoption
of the related Resolution, you are agreeing to maintain all information obtained in the
course of this representation in the strictest of confidence, and not to disclose such
information to any third party without the prior written consent of the authorized
representative of each jointly-represented City.
Another material risk would be that negotiations towards settlement of the
Dispute, may result in terms that are more or less advantageous to Sandy Springs (City
Name) as compared to any other City. The risk is negligible because the L.O.S.T. statute
establishes a statutory minimum to be guaranteed for each city which opts to not
participate (i.e. an "absent qualified municipality") in the Dispute litigation. See
O.C.G.A. § 48-8-89(b). A conflict does not exist if the Cities agree that no City will be
required through mediation or settlement to accept a percentage of L.O.S.T. proceeds less
than its absent municipal share or the governing body for a City votes to waive such right
to such a minimum distribution. By executing the Acknowledgment enclosed and
approving the associated Resolution, City of Sandy Springs accepts the above agreement
and understanding of waiver. If said understanding and agreement is not acceptable, then
a conflict may arise and if so prevent our continued representation of any and all Cities.
{Doc: 00995632.DOC}
The potential for conflict is also minimized because a best and final offer should be
approved by your governing body.
By signing the Acknowledgement attached hereto, the City of Sandy Springs
warrants that no conflict of interest exists at this time between it and any other city with
respect to the joint representation contemplated in this letter. Should a conflict of interest
arise, you agree to promptly notify Special Counsel in writing and allow Special Counsel
to continue representation so long as ,continued representation does not violate the
Georgia Rules of Professional Conduct; and otherwise consent to Special Counsel's
withdrawal.
You should be aware that Special Counsel will work diligently to achieve the
respective goals of the group and obtain a L.O.S.T. distribution certificate with Fulton
County. Furthermore, it is the understanding of the parties that the legal fees and costs of
mediation and litigation incurred in this matter shall be billed to the City of Sandy
Springs and thereafter apportioned to each city as agreed to by the parties.
IV. Fees.
City agrees to pay Attorney for representation of City at the following rates:
Position In Office Rate Out of Office Rite
Partner Buddy Welch $350 per hour $450 er hour
Partner Andy Welch $250 per hour $300 per hour
Associate Attorney $175 per hour $175 per hour
Paralegal/Secretary $95 per hour N/A
City agrees to pay any and all expenses incurred by Attorney or his representative
on City's behalf as the same accrue, including, but not limited to, court costs, official
fees, depositions and investigations. The City agrees to pay five percent (5%) of all
charges as an administrative fee, which includes but is not limited to copying fees, fax
fees, postage, etc.
Attorney agrees to maintain complete and accurate records of time spent in the
representation of City and to send City regular periodic billings, describing the services
rendered by Attorney on City's behalf during the period following the last such billing
and showing the amounts earned as fees.
Attorney shall bill City approximately once a month. City agrees to pay all sums
due and owing for legal fees and expenses within ten (10) days of the receipt of each
statement for services rendered with a balance due. In the event City fails or refuses to
pay amounts due and owing, and fails to make payment arrangements satisfactory to
Attorney within ten (10) days of the receipt by City of any bill for services or expenses,
City consents to the withdrawal by Attorney as counsel for City upon notice as provided
in Uniform Superior Court Rule 4.3. In the event it is necessary to pursue legal means to
obtain payment for professional services or expenses, City agrees to pay the amounts
owed plus fifteen percent, as attorney fees, and all costs of collection.
In the event City maintains a balance which is more than thirty (30) days past due,
Attorney shall have the right to charge interest on that past due balance at the rate of one
and one-half (1.5) percent per month or eighteen (18%) percent per annum until paid.
{Doc: 00995632.DOC}
If the Court should award City fees and expenses of litigation to be paid by the
adverse party for Attorney's representation of City, then that award, when paid over to
Attorney, will be applied to the total fee earned by Attorney and the expenses incurred.
City is responsible for the payment of any deficiency between the total fees and the
amount of the award. If the award or the deposit already paid by City exceeds the total of
the fees and expenses, plus any additional amounts previously paid to Attorney by City,
City shall be entitled to a refund of the excess.
City understands that Attorney has not represented nor guaranteed that the fees
earned by Attorney in representing City are limited in amount, except as to the hourly
rates set forth in this Contract. City understands that the total fee to be earned pursuant to
this Contract will be calculated by multiplying the total number of hours or fraction
thereof spent by Attorney by the appropriate rates as set forth above.
V. Conclusion
So that we can continue this engagement, please acknowledge your agreement
with the terms of this letter on the Acknowledgement form attached to this letter and
return it to me at your earliest convenience. I look forward to working with you on this
matter.
With kindest regards,
CH WEBB &WHITE
~ ~~
J. Welch III —~
Enclosure
AJWIII:ap
{Doc: 00995632.DOC}
ACKNOWLEDGMENT
On behalf of the City of Sandy Springs, I have reviewed the foregoing letter
regarding joint representation dated October 22, 2012, and acknowledge that the City of
Sandy Springs has been given an opportunity to ask any questions to its satisfaction and
to hire its own lawyer to represent it in the Dispute. The City of Sandy Springs realizes
that there are areas where its interests and objectives may differ from others in the
Dispute, and that there may be areas of potential conflicts of interest in the joint
representation of it and other cities in the Dispute. After careful consideration, the City of
Sandy Springs requests that you represent it jointly and in accordance with the above
letter and the associated Resolution retaining Special Counsel. The City of Sandy Springs
also understands and agrees that communications and information that you receive from
us relating to this matter are not privileged as to the cities jointly-represented by Special
Counsel in the Dispute, and agrees to hold the communications and information it obtains
from such other cities concerning this Dispute in the strictest of confidence.
Done this day of , 2012.
Eva Galambos, Mayor
Attest:
Clerk/Administrator
{Doc: 00995632.DOC}
LAW OFFICE OF WENDELL K. WILLASD
7840 ROSWELL ROAD, BUILDING 300, .SUITE 330
SANDY SPRINGS, GEORGIA 30350
PHONE 770-481-7110 FAX 770-481-7111
November 6, 2012
Mr. Michael B. Brown
Brown Pelican Consulting LLC
PO Box 14314
Savannah, GA 31416
Re: Local Option Sales Tax (`LOST") Distribution for 2013-2022
Dear Mr. Brown,
Enclosed please find the Professional Services Agreement which has been executed by
Wendell Willard on behalf of the participating cities in the above referenced matter. Also enclosed
is copy of the E -Verify MOU which you have completed.
Sincer y yours,
Toni Cappelli
Paralegal
ltc
Enclosures
cc: Legal Team (via email)
HAWpdocs WKW\LOST` Brown.. 110612.wpd
PROFESSIONAL SERVICES AGREEMENT
HIS PROFESVOIN4L SERVICES AGREEMENT ("Agreement") is entered into
this iON day of e-nw-e&- , 2012 by and between Brown Pelican Consulting,
LLC, a Georgia Limited Liability Company with its principal place of business in Savannah,
Georgia (`Brown"), and the municipalities identified on Appendix 1 hereto ("Cities"), located in
Fulton County, Georgia ("Fulton County").
WHEREAS, the Cities and Fulton County must prepare, agree upon and submit to the
Georgia Department of Revenue a Local Option Sales Tax ("LOST") certificate, or proceed to
Fulton County Superior Court and submit to the Court a last -best -offer in arbitration pursuant to
Georgia law; and
WHEREAS, Brown is engaged in the business of providing consulting services solely to
cities as such services pertain to Georgia's LOST distributions; and
WHEREAS, the Cities wish to engage the services of Brown;
NOW, THEREFORE, in consideration of the foregoing and the mutual promises herein
contained, the parties hereto agree as follows:
1.
SERVICES
Brown will consult with the Cities' representatives and the Cities' elected officials,
officers, and employees relating to Georgia's LOST law. The services to be performed by Brown
("Services") shall be specifically to assist the Cities as follows:
• Review the Cities' and Fulton County's data in support of the criteria set forth in the
LOST law, and prepare material for establishing an advantageous position of the
Cities with respect to a new share of LOST proceeds applicable to Fulton County;
• Perform services so that the allocation of total LOST proceeds to be shared by the
Cities is based upon the factors set forth in OCGA §48-8-89;
• Develop such written reports as will aid the Cities in their negotiations with Fulton
County in the distribution of the LOST proceeds to the County;
• Work with the Cities' Negotiating Committee and City Attorneys to provide a
periodic status report outlining the document gathering and identifying how the data
is being applied to each of the specialized requirements of O.C.G.A §48-8-89(b).
Such Services may include representation, advocacy and testifying in alternative dispute
resolution and arbitration, as prescribed in the LOST statute and as desired by the Cities.
z
2.
PAYMENT
Brown will be paid at the rate of one hundred fifty dollars ($150.00) per hour for the
Services described above. Brown will submit periodic invoices to a single point of contact
specified by the Cities. The cost of travel, lodging, and miscellaneous expenses will be invoiced
at cost. Brown will use its best efforts to perform the Services required under this Agreement in
such a manner as to minimize expenses. Lodging will be typical of business travel in the Fulton
County area. Any mileage expense will be at the rate of 55¢ per mile.
3.
RELATIONSHIP OF PARTIES
The parties agree that Brown is an independent contractor and is not an employee or
agent of the Cities. No benefits are to be paid or provided to Brown, including but not limited to
workers' compensation, disability, group health and life, vacation pay, sick pay or any similar
plans or benefits. Brown will be solely responsible for any and all federal or state payroll or other
taxes due to the State of Georgia or the Internal Revenue Service. Brown is responsible for
furnishing his own equipment and transportation as may be needed. Additionally, Brown will
obtain all necessary permits and licenses for himself and any employee or any other individual
he may use to assist him in carrying out this matter. Brown's Services will be performed as an
independent contractor for the Cities as a group only, and he shall not be permitted to perform
any Services independently for any of the Cities as parties to this Agreement.
4.
TERM
This Agreement shall be effective upon its execution and shall continue through the
completion of the Services assigned by the Cities, unless sooner terminated by either party upon
giving seven (7) days' written notice to the other of the party's intent to terminate at an earlier
time. Brown shall be paid for all work performed through date of termination.
5.
DOCUMENTS
All notes, memos, forms, reports and other documents prepared by Brown, or prepared
by anyone else at Brown's direction, shall be the property of the Cities. These documents are
confidential to the Cities and Brown shall not use or disclose to others during the term of this
Agreement or upon the termination or at any time any information concerning such documents.
Additionally, Brown shall not publish, publicize or otherwise advertise the existence of this
Agreement or the subject matter of this Agreement. Should the Cities become acquainted with
any prepared information of Brown, the Cities will not disclose any such information. Reports
and documents prepared by Brown are proprietary and shall not be supplied to other parties
including but not limited to other entities or consultants without the consent of Brown. All of the
obligations in this paragraph shall survive the termination of this Agreement.
3
6.
ASSIGNMENT
Brown understands that the Cities are relying on the principal, Michael B. Brown, and the
associates identified in his letter of qualification to the Cities to perform the Services in this
Agreement, and the Services may not be assigned without prior approval by the Cities.
7.
NOTICES
Any notices given hereunder shall be in writing and shall be sent certified mail return
receipt requested to:
If to the Cities: Wendell K. Willard
Attorney
7840 Roswell Road
Building 300, Suite 330
Sandy Springs, Georgia 30350
With a copy to: Jere Wood, Mayor
City of Roswell, Georgia
1173 Canton Street
Roswell, Georgia 30075
Kasim Reed, Mayor
City of Atlanta, Georgia
55 Trinity Avenue, Suite 2500
Atlanta, Georgia 30303
J. Clark Boddie, Mayor
City of Palmetto, Georgia
P. O. Box 190, 509 Toombs Street
Palmetto, Georgia 30268
If to Brown: Brown Pelican Consulting, LLC.
Attn: Michael B. Brown
P.O. Box 14314
Savannah, Georgia 31416
With copy to: Stephen L. Greenberg
Attorney
14 East State Street
Savannah, Georgia 31416
4
S.
JURISDICTION
This Agreement shall be governed by the laws of the State of Georgia and Brown agrees
that despite Chatham County, Georgia, being its principal location, Fulton Superior Court shall
have jurisdiction of any dispute arising out of this Agreement. This Agreement is the entire
agreement between the parties and no oral representation may be relied upon by either party.
Should any provision of this Agreement be declared unenforceable, same does not affect any
other provision(s) of the Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement through their duly
authorized representatives, effective the date first above written.
FOR THF, f:ITIF.0 -X'
Lo
BROWN PELICAN CONSULTING, LLC
?A440('q Pte-- eU4�
Michael B. Brown
Title: OU44ZL
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APPENDIX 1
MUNICIPALITIES OF FULTON COUNTY
1.
Alpharetta
2.
Atlanta
3.
Chattahoochee Hills
4.
College Park
5.
East Point
6.
Fairburn
7.
Hapeville
8.
Johns Creek
9.
Milton
10.
Mountain Park
11.
Palmetto
12.
Roswell
13.
Sandy Springs
14.
Union City
JSP
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Company ID Number: 467334
THE E -VERIFY PROGRAM FOR EMPLOYMENT VERIFICATION
MEMORANDUM OF UNDERSTANDING
ARTICLE I
PURPOSE AND AUTHORITY
This Memorandum of Understanding (MOU) sets forth the points of agreement between the
Department of Homeland Security (DHS) and Brown Pelican Consulting LLC (Employer)
regarding the Employer's participation in the Employment Eligibility Verification Program (E -
Verify). This MOU explains certain features of the E -Verify program and enumerates specific
responsibilities of DHS, the Social Security Administration (SSA), and the Employer. E -Verify is
a program that electronically confirms an employee's eligibility to work in the United States after
completion of the Employment Eligibility Verification Form (Form 1-9). For covered government
contractors, E -Verify is used to verify the employment eligibility of all newly hired employees and
all existing employees assigned to Federal contracts or to verify the entire workforce if the
contractor so chooses.
Authority for the E -Verify program is found in Title IV, Subtitle A, of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. 104-208, 110 Stat. 3009, as
amended (8 U.S.C. § 1324a note). Authority for use of the E -Verify program by Federal
contractors and subcontractors covered by the terms of Subpart 22.18, "Employment Eligibility
Verification", of the Federal Acquisition Regulation (FAR) (hereinafter referred to in this MOU as
a "Federal contractor with the FAR E -Verify clause") to verify the employment eligibility of
certain employees working on Federal contracts is also found in Subpart 22.18 and in Executive
Order 12989, as amended.
ARTICLE II
FUNCTIONS TO BE PERFORMED
A. RESPONSIBILITIES OF SSA
1. SSA agrees to provide the Employer with available information that allows the Employer to
confirm the accuracy of Social Security Numbers provided by all employees verified under this
MOU and the employment authorization of U.S. citizens.
2. SSA agrees to provide to the Employer appropriate assistance with operational problems that
may arise during the Employer's participation in the E -Verify program. SSA agrees to provide
the Employer with names, titles, addresses, and telephone numbers of SSA representatives to
be contacted during the E -Verify process.
3. SSA agrees to safeguard the information provided by the Employer through the E -Verify
program procedures, and to limit access to such information, as is appropriate by law, to
individuals responsible for the verification of Social Security Numbers and for evaluation of the
E -Verify program or such other persons or entities who may be authorized by SSA as governed
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E-V
erify
Company ID Number: 467334
by the Privacy Act (5 U.S.C. § 552a), the Social Security Act (42 U.S.C. 1306(a)), and SSA
regulations (20 CFR Part 401).
4. SSA agrees to provide a means of automated verification that is designed (in conjunction with
DHS's automated system if necessary) to provide confirmation or tentative nonconfirmation of
U.S. citizens' employment eligibility within 3 Federal Government work days of the initial inquiry.
5. SSA agrees to provide a means of secondary verification (including updating SSA records as
may be necessary) for employees who contest SSA tentative nonconfirmations that is designed
to provide final confirmation or nonconfirmation of U.S. citizens' employment eligibility and
accuracy of SSA records for both citizens and non -citizens within 10 Federal Government work
days of the date of referral to SSA, unless SSA determines that more than 10 days may be
necessary. In such cases, SSA will provide additional verification instructions.
B. RESPONSIBILITIES OF DHS
1. After SSA verifies the accuracy of SSA records for employees through E -Verify, DHS agrees
to provide the Employer access to selected data from DHS's database to enable the Employer
to conduct, to the extent authorized by this MOU:
• Automated verification checks on employees by electronic means, and
• Photo verification checks (when available) on employees.
2. DHS agrees to provide to the Employer appropriate assistance with operational problems that
may arise during the Employer's participation in the E -Verify program. DHS agrees to provide
the Employer names, titles, addresses, and telephone numbers of DHS representatives to be
contacted during the E -Verify process.
3. DHS agrees to make available to the Employer at the E -Verify Web site and on the E -Verify
Web browser, instructional materials on E -Verify policies, procedures and requirements for both
SSA and DHS, including restrictions on the use of E -Verify. DHS agrees to provide training
materials on E -Verify.
4. DHS agrees to provide to the Employer a notice, which indicates the Employer's participation
in the E -Verify program. DHS also agrees to provide to the Employer anti -discrimination notices
issued by the Office of Special Counsel for Immigration -Related Unfair Employment Practices
(OSC), Civil Rights Division, U.S. Department of Justice.
5. DHS agrees to issue the Employer a user identification number and password that permits
the Employer to verify information provided by employees with DHS's database.
6. DHS agrees to safeguard the information provided to DHS by the Employer, and to limit
access to such information to individuals responsible for the verification of employees'
employment eligibility and for evaluation of the E -Verify program, or to such other persons or
entities as may be authorized by applicable law. Information will be used only to verify the
accuracy of Social Security Numbers and employment eligibility, to enforce the Immigration and
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Company ID Number: 467334
Nationality Act (INA) and Federal criminal laws, and to administer Federal contracting
requirements.
7. DHS agrees to provide a means of automated verification that is designed (in conjunction
with SSA verification procedures) to provide confirmation or tentative nonconfirmation of
employees' employment eligibility within 3 Federal Government work days of the initial inquiry.
8. DHS agrees to provide a means of secondary verification (including updating DHS records as
may be necessary) for employees who contest DHS tentative nonconfirmations and photo non -
match tentative nonconfirmations that is designed to provide final confirmation or
nonconfirmation of the employees' employment eligibility within 10 Federal Government work
days of the date of referral to DHS, unless DHS determines that more than 10 days may be
necessary. In such cases, DHS will provide additional verification instructions.
C. RESPONSIBILITIES OF THE EMPLOYER
1. The Employer agrees to display the notices supplied by DHS in a prominent place that is
clearly visible to prospective employees and all employees who are to be verified through the
system.
2. The Employer agrees to provide to the SSA and DHS the names, titles, addresses, and
telephone numbers of the Employer representatives to be contacted regarding E -Verify.
3. The Employer agrees to become familiar with and comply with the most recent version of the
E -Verify User Manual.
4. The Employer agrees that any Employer Representative who will perform employment
verification queries will complete the E -Verify Tutorial before that individual initiates any queries.
A. The Employer agrees that all Employer representatives will take the refresher tutorials
initiated by the E -Verify program as a condition of continued use of E -Verify.
B. Failure to complete a refresher tutorial will prevent the Employer from continued use
of the program.
5. The Employer agrees to comply with current Form 1-9 procedures, with two exceptions:
- If an employee presents a "List B" identity document, the Employer agrees to only
accept "List B" documents that
contain a photo. (List B documents identified in 8 C.F.R. § 274a.2(b)(1)(B)) can be
presented during the Form 1-9
process to establish identity.) If an employee objects to the photo requirement for
religious reasons, the Employer
should contact E -Verify at 888-464-4218.
- If an employee presents a DHS Form 1-551 (Permanent Resident Card) or Form 1-766
(Employment Authorization Document) to complete the Form 1-9, the Employer agrees to
make a photocopy of the document and to retain the photocopy with the employee's
Form 1-9. The photocopy must be of sufficient quality to allow for verification of the photo
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E-Verify,_
Company ID Number: 467334
and written information. The employer will use the photocopy to verify the photo and to
assist DHS with its review of photo non -matches that are contested by employees. Note
that employees retain the right to present any List A, or List B and List C, documentation
to complete the Form 1-9. DHS may in the future designate other documents that
activate the photo screening tool.
6. The Employer understands that participation in E -Verify does not exempt the Employer from
the responsibility to complete, retain, and make available for inspection Forms 1-9 that relate to
its employees, or from other requirements of applicable regulations or laws, including the
obligation to comply with the antidiscrimination requirements of section 274B of the INA with
respect to Form 1-9 procedures, except for the following modified requirements applicable by
reason of the Employer's participation in E -Verify: (1) identity documents must have photos, as
described in paragraph 5 above; (2) a rebuttable presumption is established that the Employer
has not violated section 274A(a)(1)(A) of the Immigration and Nationality Act (INA) with respect
to the hiring of any individual if it obtains confirmation of the identity and employment eligibility of
the individual in good faith compliance with the terms and conditions of E -Verify; (3) the
Employer must notify DHS if it continues to employ any employee after receiving a final
nonconfirmation, and is subject to a civil money penalty between $550 and $1,100 for each
failure to notify DHS of continued employment following a final nonconfirmation; (4) the
Employer is subject to a rebuttable presumption that it has knowingly employed an unauthorized
alien in violation of section 274A(a)(1)(A) if the Employer continues to employ an employee after
receiving a final nonconfirmation; and (5) no person or entity participating in E -Verify is civilly or
criminally liable under any law for any action taken in good faith based on information provided
through the confirmation system. DHS reserves the right to conduct Form 1-9 and E -Verify
system compliance inspections during the course of E -Verify, as well as to conduct any other
enforcement activity authorized by law.
7. The Employer agrees to initiate E -Verify verification procedures for new employees within 3
Employer business days after each employee has been hired (but after the Form 1-9 has been
completed), and to complete as many (but only as many) steps of the E -Verify process as are
necessary according to the E -Verify User Manual, or in the case of Federal contractors with the
FAR E -Verify clause, the E -Verify User Manual for Federal Contractors. The Employer is
prohibited from initiating verification procedures before the employee has been hired and the
Form 1-9 completed. If the automated system to be queried is temporarily unavailable, the 3 -day
time period is extended until it is again operational in order to accommodate the Employer's
attempting, in good faith, to make inquiries during the period of unavailability. Employers may
initiate verification by notating the Form 1-9 in circumstances where the employee has applied
for a Social Security Number (SSN) from the SSA and is waiting to receive the SSN, provided
that the Employer performs an E -Verify employment verification query using the employee's
SSN as soon as the SSN becomes available.
8. The Employer agrees not to use E -Verify procedures for pre-employment screening of job
applicants, in support of any unlawful employment practice, or for any other use not authorized
by this MOU. Employers must use E -Verify for all new employees, unless an Employer is a
Federal contractor that qualifies for the exceptions described in Article II.D.1.c. Except as
provided in Article ILD, the Employer will not verify selectively and will not verify employees
hired before the effective date of this MOU. The Employer understands that if the Employer
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Company ID Number: 467334
uses the E -Verify system for any purpose other than as authorized by this MOU, the Employer
may be subject to appropriate legal action and termination of its access to SSA and DHS
information pursuant to this MOU.
9. The Employer agrees to follow appropriate procedures (see Article III. below) regarding
tentative nonconfirmations, including notifying employees in private of the finding and providing
them written notice of the findings, providing written referral instructions to employees, allowing
employees to contest the finding, and not taking adverse action against employees if they
choose to contest the finding. Further, when employees contest a tentative nonconfirmation
based upon a photo non -match, the Employer is required to take affirmative steps (see Article
III.B. below) to contact DHS with information necessary to resolve the challenge.
10. The Employer agrees not to take any adverse action against an employee based upon the
employee's perceived employment eligibility status while SSA or DHS is processing the
verification request unless the Employer obtains knowledge (as defined in 8 C.F.R. § 274a.1(1))
that the employee is not work authorized. The Employer understands that an initial inability of
the SSA or DHS automated verification system to verify work authorization, a tentative
nonconfirmation, a case in continuance (indicating the need for additional time for the
government to resolve a case), or the finding of a photo non -match, does not establish, and
should not be interpreted as evidence, that the employee is not work authorized. In any of the
cases listed above, the employee must be provided a full and fair opportunity to contest the
finding, and if he or she does so, the employee may not be terminated or suffer any adverse
employment consequences based upon the employee's perceived employment eligibility status
(including denying, reducing, or extending work hours, delaying or preventing training, requiring
an employee to work in poorer conditions, refusing to assign the employee to a Federal contract
or other assignment, or otherwise subjecting an employee to any assumption that he or she is
unauthorized to work) until and unless secondary verification by SSA or DHS has been
completed and a final nonconfirmation has been issued. If the employee does not choose to
contest a tentative nonconfirmation or a photo non -match or if a secondary verification is
completed and a final nonconfirmation is issued, then the Employer can find the employee is not
work authorized and terminate the employee's employment. Employers or employees with
questions about a final nonconfirmation may call E -Verify at 1-888-464-4218 or OSC at 1-800-
255-8155 or 1-800-237-2515 (TDD).
11. The Employer agrees to comply with Title VII of the Civil Rights Act of 1964 and section
274B of the INA, as applicable, by not discriminating unlawfully against any individual in hiring,
firing, or recruitment or referral practices because of his or her national origin or, in the case of a
protected individual as defined in section 27413(a)(3) of the INA, because of his or her
citizenship status. The Employer understands that such illegal practices can include selective
verification or use of E -Verify except as provided in part D below, or discharging or refusing to
hire employees because they appear or sound "foreign" or have received tentative
nonconfirmations. The Employer further understands that any violation of the unfair immigration -
related employment practices provisions in section 274B of the INA could subject the Employer
to civil penalties, back pay awards, and other sanctions, and violations of Title VII could subject
the Employer to back pay awards, compensatory and punitive damages. Violations of either
section 274B of the INA or Title VII may also lead to the termination of its participation in E -
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F7j1
Company ID Number: 467334
Verify. If the Employer has any questions relating to the anti -discrimination provision, it should
contact OSC at 1-800-255-8155 or 1-800-237-2515 (TDD).
12. The Employer agrees to record the case verification number on the employee's Form 1-9 or
to print the screen containing the case verification number and attach it to the employee's Form
1-9.
13. The Employer agrees that it will use the information it receives from SSA or DHS pursuant
to E -Verify and this MOU only to confirm the employment eligibility of employees as authorized
by this MOU. The Employer agrees that it will safeguard this information, and means of access
to it (such as PINS and passwords) to ensure that it is not used for any other purpose and as
necessary to protect its confidentiality, including ensuring that it is not disseminated to any
person other than employees of the Employer who are authorized to perform the Employer's
responsibilities under this MOU, except for such dissemination as may be authorized in advance
by SSA or DHS for legitimate purposes.
14. The Employer acknowledges that the information which it receives from SSA is governed by
the Privacy Act (5 U.S.C. § 552a(i)(1) and (3)) and the Social Security Act (42 U.S.C. 1306(a)),
and that any person who obtains this information under false pretenses or uses it for any
purpose other than as provided for in this MOU may be subject to criminal penalties.
15. The Employer agrees to cooperate with DHS and SSA in their compliance monitoring and
evaluation of E -Verify, including by permitting DHS and SSA, upon reasonable notice, to review
Forms 1-9 and other employment records and to interview it and its employees regarding the
Employer's use of E -Verify, and to respond in a timely and accurate manner to DHS requests
for information relating to their participation in E -Verify.
D. RESPONSIBILITIES OF FEDERAL CONTRACTORS WITH THE FAR E -VERIFY CLAUSE
1. The Employer understands that if it is a subject to the employment verification terms
in Subpart 22.18 of the FAR, it must verify the employment eligibility of any existing employee
assigned to the contract and all new hires, as discussed in the Supplemental Guide for Federal
Contractors. Once an employee has been verified through E -Verify by the Employer, the
Employer may not reverify the employee through E -Verify.
a. Federal contractors with the FAR E -Verify clause agree to become familiar with and
comply with the most recent versions of the E -Verify User Manual for Federal Contractors and
the E -Verify Supplemental Guide for Federal Contractors.
b. Federal contractors with the FAR E -Verify clause agree to complete a tutorial for
Federal contractors with the FAR E -Verify clause.
c. Federal contractors with the FAR E -Verify clause not enrolled at the time of contract
award: An Employer that is not enrolled in E -Verify at the time of a contract award must enroll
as a Federal contractor with the FAR E -Verify clause in E -Verify within 30 calendar days of
contract award and, within 90 days of enrollment, begin to use E -Verify to initiate verification of
employment eligibility of new hires of the Employer who are working in the United States,
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Company ID Number: 467334
whether or not assigned to the contract. Once the Employer begins verifying new hires, such
verification of new hires must be initiated within 3 business days after the date of hire. Once
enrolled in E -Verify as a Federal contractor with the FAR E -Verify clause, the Employer must
initiate verification of employees assigned to the contract within 90 calendar days from the time
of enrollment in the system and after the date and selecting which employees will be verified in
E -Verify or within 30 days of an employee's assignment to the contract, whichever date is later.
d. Employers that are already enrolled in E -Verify at the time of a contract award but are
not enrolled in the system as a Federal contractor with the FAR E -Verify clause: Employers
enrolled in E -Verify for 90 days or more at the time of a contract award must use E -Verify to
initiate verification of employment eligibility for new hires of the Employer who are working in the
United States, whether or not assigned to the contract, within 3 business days after the date of
hire. Employers enrolled in E -Verify as other than a Federal contractor with the FAR E -Verify
clause, must update E -Verify to indicate that they are a Federal contractor with the FAR E -
Verify clause within 30 days after assignment to the contract. If the Employer is enrolled in E -
Verify for 90 calendar days or less at the time of contract award, the Employer must, within 90
days of enrollment, begin to use E -Verify to initiate verification of new hires of the contractor
who are working in the United States, whether or not assigned to the contract. Such verification
of new hires must be initiated within 3 business days after the date of hire. An Employer
enrolled as a Federal contractor with the FAR E -Verify clause in E -Verify must initiate
verification of each employee assigned to the contract within 90 calendar days after date of
contract award or within 30 days after assignment to the contract, whichever is later.
e. Institutions of higher education, State, local and tribal governments and sureties:
Federal contractors with the FAR E -Verify clause that are institutions of higher education (as
defined at 20 U.S.C. 1001(a)), State or local governments, governments of Federally recognized
Indian tribes, or sureties performing under a takeover agreement entered into with a Federal
agency pursuant to a performance bond may choose to only verify new and existing employees
assigned to the Federal contract. Such Federal contractors with the FAR E -Verify clause may,
however, elect to verify all new hires, and/or all existing employees hired after November 6,
1986. The provisions of Article ILD, paragraphs 1.a and 1.b of this MOU providing timeframes
for initiating employment verification of employees assigned to a contract apply to such
institutions of higher education, State, local and tribal governments, and sureties.
f. Verification of all employees: Upon enrollment, Employers who are Federal contractors
with the FAR E -Verify clause may elect to verify employment eligibility of all existing employees
working in the United States who were hired after November 6, 1986, instead of verifying only
new employees and those existing employees assigned to a covered Federal contract. After
enrollment, Employers must elect to do so only in the manner designated by DHS and initiate E -
Verify verification of all existing employees within 180 days after the election.
g. Form 1-9 procedures for existing employees of Federal contractors with the FAR E -
Verify clause: Federal contractors with the FAR E -Verify clause may choose to complete new
Forms 1-9 for all existing employees other than those that are completely exempt from this
process. Federal contractors with the FAR E -Verify clause may also update previously
completed Forms 1-9 to initiate E -Verify verification of existing employees who are not
completely exempt as long as that Form 1-9 is complete (including the SSN), complies with
Page 7 of 131 E -Verify MOU for Employer I Revision Date 09/01/09 www.dhs.gov/E-Verify
Company ID Number: 467334
Article II.C.5, the employee's work authorization has not expired, and the Employer has
reviewed the information reflected in the Form 1-9 either in person or in communications with the
employee to ensure that the employee's stated basis in section 1 of the Form 1-9 for work
authorization has not changed (including, but not limited to, a lawful permanent resident alien
having become a naturalized U.S. citizen). If the Employer is unable to determine that the Form
1-9 complies with Article II.C.5, if the employee's basis for work authorization as attested in
section 1 has expired or changed, or if the Form 1-9 contains no SSN or is otherwise incomplete,
the Employer shall complete a new 1-9 consistent with Article II.C.5, or update the previous 1-9
to provide the necessary information. If section 1 of the Form 1-9 is otherwise valid and up-to-
date and the form otherwise complies with Article II.C.5, but reflects documentation (such as a
U.S. passport or Form 1-551) that expired subsequent to completion of the Form 1-9, the
Employer shall not require the production of additional documentation, or use the photo
screening tool described in Article II.C.5, subject to any additional or superseding instructions
that may be provided on this subject in the Supplemental Guide for Federal Contractors.
Nothing in this section shall be construed to require a second verification using E -Verify of any
assigned employee who has previously been verified as a newly hired employee under this
MOU, or to authorize verification of any existing employee by any Employer that is not a Federal
contractor with the FAR E -Verify clause.
2. The Employer understands that if it is a Federal contractor with the FAR E -Verify clause, its
compliance with this MOU is a performance requirement under the terms of the Federal
contract or subcontract, and the Employer consents to the release of information relating to
compliance with its verification responsibilities under this MOU to contracting officers or other
officials authorized to review the Employer's compliance with Federal contracting requirements.
ARTICLE III
REFERRAL OF INDIVIDUALS TO SSA AND DHS
A. REFERRAL TO SSA
1. If the Employer receives a tentative nonconfirmation issued by SSA, the Employer must print
the notice as directed by the E -Verify system and provide it to the employee so that the
employee may determine whether he or she will contest the tentative nonconfirmation. The
Employer must review the tentative nonconfirmation with the employee in private.
2. The Employer will refer employees to SSA field offices only as directed by the automated
system based on a tentative nonconfirmation, and only after the Employer records the case
verification number, reviews the input to detect any transaction errors, and determines that the
employee contests the tentative nonconfirmation. The Employer will transmit the Social Security
Number to SSA for verification again if this review indicates a need to do so. The Employer will
determine whether the employee contests the tentative nonconfirmation as soon as possible
after the Employer receives it.
3. If the employee contests an SSA tentative nonconfirmation, the Employer will provide the
employee with a system -generated referral letter and instruct the employee to visit an SSA
office within 8 Federal Government work days. SSA will electronically transmit the result of the
referral to the Employer within 10 Federal Government work days of the referral unless it
Page 8 of 131 E -Verify MOU for Employer I Revision Date 09/01/09 www.dhs.gov/E-Verify
F7_-VdMrj
fV
Company ID Number: 467334
determines that more than 10 days is necessary. The Employer agrees to check the E -Verify
system regularly for case updates.
4. The Employer agrees not to ask the employee to obtain a printout from the Social Security
Number database (the Numident) or other written verification of the Social Security Number
from the SSA.
B. REFERRAL TO DHS
1. If the Employer receives a tentative nonconfirmation issued by DHS, the Employer must print
the tentative nonconfirmation notice as directed by the E -Verify system and provide it to the
employee so that the employee may determine whether he or she will contest the tentative
nonconfirmation. The Employer must review the tentative nonconfirmation with the employee in
private.
2. If the Employer finds a photo non -match for an employee who provides a document for which
the automated system has transmitted a photo, the employer must print the photo non -match
tentative nonconfirmation notice as directed by the automated system and provide it to the
employee so that the employee may determine whether he or she will contest the finding. The
Employer must review the tentative nonconfirmation with the employee in private.
3. The Employer agrees to refer individuals to DHS only when the employee chooses to contest
a tentative nonconfirmation received from DHS automated verification process or when the
Employer issues a tentative nonconfirmation based upon a photo non -match. The Employer will
determine whether the employee contests the tentative nonconfirmation as soon as possible
after the Employer receives it.
4. If the employee contests a tentative nonconfirmation issued by DHS, the Employer will
provide the employee with a referral letter and instruct the employee to contact DHS through its
toll-free hotline (as found on the referral letter) within 8 Federal Government work days.
5. If the employee contests a tentative nonconfirmation based upon a photo non -match, the
Employer will provide the employee with a referral letter to DHS. DHS will electronically transmit
the result of the referral to the Employer within 10 Federal Government work days of the referral
unless it determines that more than 10 days is necessary. The Employer agrees to check the E -
Verify system regularly for case updates.
6. The Employer agrees that if an employee contests a tentative nonconfirmation based upon a
photo non -match, the Employer will send a copy of the employee's Form 1-551 or Form 1-766 to
DHS for review by:
• Scanning and uploading the document, or
• Sending a photocopy of the document by an express mail account (paid for at
employer expense).
7. If the Employer determines that there is a photo non -match when comparing the photocopied
List B document described in Article II.C.5 with the image generated in E -Verify, the Employer
must forward the employee's documentation to DHS using one of the means described in the
preceding paragraph, and allow DHS to resolve the case.
Page 9 of 13 1 E -Verify MOU for Employer I Revision Date 09f01 09 www.dhs.gov/E-Verify
Company ID Number: 467334
els t F�' v
L
ARTICLE IV
SERVICE PROVISIONS
SSA and DHS will not charge the Employer for verification services performed under this MOU.
The Employer is responsible for providing equipment needed to make inquiries. To access E -
Verify, an Employer will need a personal computer with Internet access.
ARTICLE V
PARTIES
A. This MOU is effective upon the signature of all parties, and shall continue in effect for as long
as the SSA and DHS conduct the E -Verify program unless modified in writing by the mutual
consent of all parties, or terminated by any party upon 30 days prior written notice to the others.
Any and all system enhancements to the E -Verify program by DHS or SSA, including but not
limited to the E -Verify checking against additional data sources and instituting new verification
procedures, will be covered under this MOU and will not cause the need for a supplemental
MOU that outlines these changes. DHS agrees to train employers on all changes made to E -
Verify through the use of mandatory refresher tutorials and updates to the E -Verify User
Manual, the E -Verify User Manual for Federal Contractors or the E -Verify Supplemental Guide
for Federal Contractors. Even without changes to E -Verify, DHS reserves the right to require
employers to take mandatory refresher tutorials. An Employer that is a Federal contractor with
the FAR E -Verify clause may terminate this MOU when the Federal contract that requires its
participation in E -Verify is terminated or completed. In such a circumstance, the Federal
contractor with the FAR E -Verify clause must provide written notice to DHS. If an Employer that
is a Federal contractor with the FAR E -Verify clause fails to provide such notice, that Employer
will remain a participant in the E -Verify program, will remain bound by the terms of this MOU
that apply to participants that are not Federal contractors with the FAR E -Verify clause, and will
be required to use the E -Verify procedures to verify the employment eligibility of all newly hired
employees.
B. Notwithstanding Article V, part A of this MOU, DHS may terminate this MOU if deemed
necessary because of the requirements of law or policy, or upon a determination by SSA or
DHS that there has been a breach of system integrity or security by the Employer, or a failure
on the part of the Employer to comply with established procedures or legal requirements. The
Employer understands that if it is a Federal contractor with the FAR E -Verify clause, termination
of this MOU by any party for any reason may negatively affect its performance of its contractual
responsibilities.
C. Some or all SSA and DHS responsibilities under this MOU may be performed by
contractor(s), and SSA and DHS may adjust verification responsibilities between each other as
they may determine necessary. By separate agreement with DHS, SSA has agreed to perform
its responsibilities as described in this MOU.
Page 10 of 13 1 E -Verify MOU for Employer I Revision Date 09/01/09 www.dhs.gov/E-Verify
r,=-Veril
Company ID Number: 467334
D. Nothing in this MOU is intended, or should be construed, to create any right or benefit,
substantive or procedural, enforceable at law by any third party against the United States, its
agencies, officers, or employees, or against the Employer, its agents, officers, or employees.
E. Each party shall be solely responsible for defending any claim or action against it arising out
of or related to E -Verify or this MOU, whether civil or criminal, and for any liability wherefrom,
including (but not limited to) any dispute between the Employer and any other person or entity
regarding the applicability of Section 403(d) of IIRIRA to any action taken or allegedly taken by
the Employer.
F. The Employer understands that the fact of its participation in E -Verify is not confidential
information and may be disclosed as authorized or required by law and DHS or SSA policy,
including but not limited to, Congressional oversight, E -Verify publicity and media inquiries,
determinations of compliance with Federal contractual requirements, and responses to inquiries
under the Freedom of Information Act (FOIA).
G. The foregoing constitutes the full agreement on this subject between DHS and the Employer.
H. The individuals whose signatures appear below represent that they are authorized to enter
into this MOU on behalf of the Employer and DHS respectively.
Page 11 of 13 1 E -Verify MOU for Employer I Revision Date 09/01/09 www.dhs.gov/E-Verify
cg�-
�y 1111111 .
Company ID Number: 467334
To be accepted as a participant in E -Verify, you should only sign the Employer's Section
of the signature page. If you have any questions, contact E -Verify at 888-464-4218.
Employer Brown Pelican Consulting LLC
Michael Brown
Name (Please Type or Print) 'title
lectronically Signed 11/19/2011
ignature Date
lent of Homeland Security — Verification Division
Verification Division
ase TvDe or Print) (Title
1/19/2011
Information Required for the E -Verify Program
nation relating to your Company:
Company Name:Brown Pelican Consulting LLC
Company Facility Address:l Sir Lancelot CT
�avannalh, GA 31405
Company Alternate
Address:
IPO Box 14314
Savannah, GA 31416
County or Parish:
CHATHAM
Employer Identification
Number:
453841777
Page 12 of 13 1 E -Verify MOU for Employer I Revision Date 09/01/09 www.dhs.gov/E-Verify
Company ID Number: 467334
North American Industry
Classification Systems
Code:
Administrator:
Number of Employees: 11 to 4
Number of Sites Verified
for:
�U•` ?y I��I�II .
e you verifying for more than 1 site? If yes, please provide the number of sites verified for
each State:
GEORGIA 1 site(s)
Information relating to the Program Administrator(s) for your Company on policy
questions or operational problems:
Name: Michael B Brown
Telephone Number: (912) 308 - 9669 Fax Number:
E-mail Address: mbbllb@comcast.net
Page 13 of 13 1 E -Verify MOU for Employer I Revision Date 09/01/09 www.dhs.gov/E-Verify
SAVE Affidavit
By executing this affidavit under oath, and as an applicant for a(n) [type of
public benefit], as referenced in O.C.G.A. § 50-36-1, from Forsyth County, the undersigned
applicant verifies one of the following with respect to his or her application for a public benefit:
1) �� I am a United States citizen.
2) I am a legal pennanent resident of the United States.
3) 1 am a qualified alien or non-iminigrant under the Federal Immigration and
Nationality Act with an alien number issued by the Department of Homeland
Security or other federal immigration agency.
My alien number issued by the Department of Homeland Security or other federal
immigration agency is:
The undersigned applicant also hereby verifies that he or she is 18 years of age or older and has
provided at least one secure and verifiable document, as required by O.C.G.A.
§ 50-36-1(e)(1), with this affidavit.
The secure and verifiable document provided with this affidavit can best be classified as:
In making the above representation under oath, I understand that any person who knowingly and
willfully makes a false, fictitious, or fraudulent statement or representation in an affidavit shall
be guilty of a violation of O.C.G.A. § 16-10-20, and face criminal penalties as allowed by such
criminal statute.
Executed in
SUBSCRIBED AND SWORN
BEFORE ME ON THIS THE
/1 DAY OF het' , 20
N ARY PUBLIC
My Comnli sion Expires:
101al
(city),
_(state).
Signature of Applicant
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Printed Name of Applicant
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My Comm. Exp.
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