NO.

In the Supreme Court of the United States

BANK OF AMERICA, N.A. AND BANK OF AMERICA CORPORATION, v. DISTRICT OF COLUMBIA,
Respondent. On Petition for Writ of Certiorari to the District of Columbia Court of Appeals

Petitioners,

PETITION FOR WRIT OF CERTIORARI

AVA E. LIAS-BOOKER
Counsel of Record

BRIAN A. KAHN THOMAS M. BESHERE McGuire Woods LLP 7 Saint Paul St., Suite 1000 Baltimore, MD 21202 (410) 659-4400
alias-booker@mcguirewoods.com Counsel for Petitioners

i QUESTIONS PRESENTED (1) Whether, under the Federal Arbitration Act, 9 U.S.C. 1, et seq., (FAA) and the federal substantive law of arbitration, a state court may apply a state procurement statute after execution of an agreement to arbitrate to hold that government officials with independent contracting authority conferred by statute lacked authority to agree to an arbitration provision, and to lodge exclusive jurisdiction for the dispute in an administrative or judicial forum? (2) Whether, under the FAA and the federal substantive law of arbitration, a court must harmonize the documents and agreements governing a bank account relationship to give effect to an arbitration provision, when the party resisting arbitration concedes that its claims fall outside the jurisdiction of an administrative dispute resolution process, state law permitting a civil action is non-exclusive and nonmandatory, and extinguishing the agreement containing the arbitration provision would render the account inoperable? (3) Whether, under the FAA and the federal substantive law of arbitration, a court must refer the issue of arbitrability to an arbitrator when the party resisting arbitration argues that a subsequent agreement superseded a prior agreement containing an arbitration clause, and the arbitration clause incorporates the American Arbitration Associations Commercial Arbitration Rules, which give the arbitrator the power to rule on his or her own jurisdiction?

ii STATEMENTS PURSUANT TO RULES 14.1(b) AND 29.6 In the District of Columbia Court of Appeals, the Appellants were Bank of America, N.A., and Bank of America Corporation.1 The Appellee was the District of Columbia. Bank of America, N.A. is 100% owned by BANA Holding Corporation, which is 100% owned by BAC North America Holding Company, which is 100% owned by NB Holdings Corporation, which is 100% owned by Bank of America Corporation. Of these entities, only Bank of America Corporation is a publicly-held corporation. Bank of America Corporation has no parent corporations, and no publicly held corporation owns 10% or more of the stock of Bank of America Corporation.

For purposes of this Petition, Bank of America, N.A. and Bank of America Corporation will be referred to collectively as BOA.

iii TABLE OF CONTENTS QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . i STATEMENTS PURSUANT TO RULES 14.1(b) AND 29.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . iii TABLE OF CITED AUTHORITIES . . . . . . . . . . . viii OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . 1 JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 2 I. Factual Background . . . . . . . . . . . . . . . . . . . . 3 A. Harriette Walters Fraudulent Scheme . . 3 B. The Agreement Governing the CDA Requires Arbitration of Disputes . . . . . . . 4 C. The Districts 2002 Request for Proposal and the 2005 Contract . . . . . . . . . . . . . . . 9 II. Proceedings Below . . . . . . . . . . . . . . . . . . . . 13 A. Proceedings in the Superior Court . . . . . 13 B. The Court of Appeals Decision . . . . . . . . 17 REASONS FOR GRANTING THE PETITION . . . 20

iv I. The Court of Appeals Published Decision Establishes Precedent That Conflicts With the FAA, This Courts Precedents, and The Federal Substantive Law of Arbitration . . . . . . . . . . . . . . . . . . . . . . . . 20 A. The Lower Courts Improperly Elevated a District Law (the PPA) Over the FAA . . 21 B. The Lower Courts Improperly Failed to Harmonize the Governing Documents in Accordance With the FAA and Federal Substantive Law . . . . . . . . . . . . . . . . . . . 24 II. The Lower Courts Improperly Decided Issues That Should Have Been Decided by the Arbitrator . . . . . . . . . . . . . . . . . . . 31 This Case Presents an Issue of Importance With Serious Implications For Arbitration Agreements In Public Contracts . . . . . . . . . . . . . . . . . . . . . . . . . 35

III.

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 APPENDIX Appendix A Decision in the District of Columbia Court of Appeals (November 27, 2013) . . . . . . . . . . App. 1 Appendix B Order Denying Bank of Americas Motion to Dismiss, or in the Alternative, Stay Based on Forum Selection and Arbitration Clauses (December 9, 2009) . . . . . . . . . . App. 66

v Appendix C Pertinent Constitutional Provisions, Statutes, and Rules U.S. Const., Art. VI, Clause 2 (Supremacy Clause) . . . . . . App. 121 9 U.S.C. 2 . . . . . . . . . . . . . App. 121 9 U.S.C. 3 . . . . . . . . . . . . . App. 122 D.C. Code 1-204.24a . . . . App. 122 D.C. Code 1-204.24d . . . . App. 124 Former D.C. Code 2-301.04 (repealed April 8, 2011) . . . App. 131 Former D.C. Code 2-308.03 (repealed April 8, 2011) . . . App. 132 D.C. Code. 2-381.02 (formerly codified as D.C. Code 2-308.14) . . . . . . . . . . . . App. 133 D.C. Code 2-381.03 (formerly codified as D.C. Code 2-308.15) . . . . . . . . . . . . App. 135 D.C. Appropriations Act 2006, 109 Pub. L. No. 115, 132, 119 Stat. 2396, 2522 (2005) . . . . . . . . App. 144 American Arbitration Association, Commercial Arbitration Rules, Rule R-7 . . . . . . . . . . . . . . . App. 144

vi Financial Management and Control Order No. 97-15 Chapter 1, Section A.3 . . . . App. 145 Chapter 1, Section B.3 . . . . App. 145 Appendix D Selected Pages from 2000 Bank of America Treasury Services Booklet . . . . . . . . . . . . . . . . . . . App. 147 Appendix E Certified Copy of Corporate Resolutions, executed January 6, 2000 . . . . . . . . . . . . . . . . . . . . . App. 161 Appendix F Authorization and Agreement for T r e a s u r y S e r v i c e s , e x e c ut e d September 25, 2000 . . . . . . . . . App. 162 Appendix G Authorization and Agreement for Treasury Services, executed March 6, 2006 . . . . . . . . . . . . . . . . . . . . . App. 170 Appendix H Selected Pages from 2004 Bank of America Treasury Services Booklet . . . . . . . . . . . . . . . . . . .App. 179 Appendix I Selected pages and portions from the District of Columbia Government Contracting Documents related to the Controlled Disbursements Bank Account with Bank of America which include portions of: (i) the November 13, 2005, District of Columbia Office of the Chief Financial Officer CONTRACT, for Contract No.: CFOPD-05-C-083 with Bank of America (App. 206-211); (ii) the June 2002 Bank of America Response to

vii Request for Proposal For Financial Services For OFT Controlled Disbursement Account RFP No. CFOPD-02-R-019, (2002) Contractors Technical Proposal and Cost Proposal) (App. 212-226); (iii) the April 2005 Bank of America Revised RFP Response (2005 Contractors Technical Proposal) (App. 227-239); and (iv) the May 22, 2002 Solicitation, Offer and Award CFOPD-02-R-019 RFP issued by the Office of the District Chief Financial Officer (Districts 2002 Request for Proposals (RFP)) (App. 240-252) . . . . . . . . . . . . . . . . . . App. 206 Appendix J Bank of Americas Motion to Dismiss or, in the Alternative, Stay Based on Forum Selection and Arbitration Clauses, filed January 16, 2009 . . . . . . . . . . . . . . . . . . . . .App. 253 Appendix K Selected pages from Bank of Americas Notice of Appeal, filed January 7, 2010 . . . . . . . . . . . . . . . . . . . . .App. 257 Appendix L Selected pages from Bank of Americas brief in the District of Columbia Court of Appeals, filed November 15, 2010 . . . . . . . . .App. 264

viii Table of Cited Authorities Cases Page(s)

Agere Sys., Inc. v. Samsung Elecs. Co., 560 F.3d 337 (5th Cir. 2009) . . . . . . . . . . . . . . . 33 AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011) . . . . . . . . . . . . . . 17, 20, 24 Avue Techs. Corp. v. DCI Group, LLC, No. 06-327 (JDB), 2006 WL 1147622 (D.D.C. Apr. 28, 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Bank of America, N.A. v. District of Columbia, 80 A.3d 650 (D.C. App. 2013) . . . . . . . . . . . . 4, 17 Bank Julius Baer & Co., Ltd. v. Waxfield Ltd., 424 F.3d 278 (2d Cir. 2005) . . . . . . . . . . . . passim Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440 (2006) . . . . . . . . . . . . . . . . . . passim Clifton D. Mayhew, Inc. v. Mabro Constr., Inc., 383 F. Supp. 192 (D.D.C. 1974) . . . . . . . . . . . . . 34 Clyde Bergemann, Inc. v. Sullivan, Higgins & Brion, PPE LLC, No. 08-162-KI, 2008 WL 4279632 (D. Or. Sept. 18, 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Contec Corp. v. Remote Solution Co., 398 F.3d 205 (2d Cir. 2005) . . . . . . . . . . . . . . . . 33 District of Columbia v. Bank of America, N.A., et al., Case No. 2008 CA 007763 B (D.C. Super. Ct. Feb. 19, 2009) . . . . . . . . . . . . . . . . . . . . . . . . 14, 15

ix District of Columbia v. Bailey, 171 U.S. 161 (1898) . . . . . . . . . . . . . . . . . . . . . . 36 District of Columbia v. Greene, 806 A.2d 216 (D.C. 2002) (per curiam) . . . . 36, 37 Fairman v. District of Columbia, 934 A.2d 438 (D.C. 2007) . . . . . . . . . . . . . . . . . . 36 Fallo v. High-Tech Inst., 559 F.3d 874 (8th Cir. 2009) . . . . . . . . . . . . . . . 33 Grynberg v. BP P.L.C., 585 F. Supp. 2d 50 (D.D.C. 2008) . . . . . . . . . . . 33 Holloway v. Jim Walter Homes, Inc., No. 2:05-CV-516-WKW, 2006 U.S. Dist. LEXIS 42274 (M.D. Ala. June 22, 2006) . . . . . . . . . . . . 34 Howard Univ. v. Good Food Servs., Inc., 608 A.2d 116 (D.C. 1992) . . . . . . . . . . . . . . . . . . 32 M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972) . . . . . . . . . . . . . . . . . . . . . . . . 27 Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52 (1995) . . . . . . . . . . . . . . . . . . . . . . . 25 Masurovsky v. Green, 687 A.2d 198 (D.C. 1996) . . . . . . . . . . . . . . . . . . 32 Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (1983) . . . . . . . . . . . . . . . . . . . . . . . . 20

x Patten Securities Corp. v. Diamond Greyhound & Genetics, 819 F.2d 400 (3d Cir. 1987) abrogated on other grounds, Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271 (1988) . . . . 27, 28 Perry v. Thomas, 482 U.S. 483 (1987) . . . . . . . . . . . . . . . . 20, 21, 22 Personal Sec. & Safety Systems v. Motorola, 297 F.3d 388 (5th Cir. 2002) . . . . . . . . . . . . . . . 26 Preston v. Ferrer, 552 U.S. 346 (2008) . . . . . . . . . . . . . . . . . . passim Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395 (1967) . . . . . . . . . . . . . . . . . . . . . . 21 Rent-A-Center West, Inc. v. Jackson, 130 S. Ct. 2772 (2010) . . . . . . . . . . . . . . 17, 32, 34 Ricardi v. Modern Silver Linen Supply Co., 356 N.Y.S.2d 872 (N.Y. App. Div. 1974), affd 335 N.E.2d 856 (N.Y. 1975) . . . . . . . . . . . . . . . . 34 Southland Corp. v. Keating, 465 U.S. 1 (1984) . . . . . . . . . . . . . . . . . . . . passim UBS Financial Services, Inc. v. Carilion Clinic, 706 F.3d 319 (4th Cir. 2013) . . . . . . . . . . . . 28, 29 United States v. Walters, Case No. 1:08-cr-00285 (D.D.C. Sept. 16, 2008) . 3 WorldCrisa Corp. v. Armstrong, 129 F.3d 71 (2d Cir. 1997) . . . . . . . . . . . . . . 26, 27

xi Constitutional Provisions United States Constitution, art VI, 2 . . . . . . . . . . 1 Federal Statutes and Acts 9 U.S.C. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . i, 2, 14 9 U.S.C. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 9 U.S.C. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 9 U.S.C. 16(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. 1257 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 41 U.S.C. 7103 . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 41 U.S.C. 7104 . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 41 U.S.C. 7105 . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 D.C. Appropriations Act 2006, 109 Pub. L. No. 115, 132, 119 Stat. 2396, 2252 (2005) . . . . . . . . . 2, 7 District of Columbia Financial Responsibility and Management Assistance Act of 1995, Pub. L. No. 104-8, 302(a), 109 Stat. 97, 142-47 (1995) . . . . 7 State Statutes and Acts Alaska Stat. 36.30.620 . . . . . . . . . . . . . . . . . . . . . 35 Alaska Stat. 36.30.685 . . . . . . . . . . . . . . . . . . . . . 35 Ariz. Rev. Stat. 41-2611 . . . . . . . . . . . . . . . . . . . 35 Ariz. Rev. Stat. 41-2614 . . . . . . . . . . . . . . . . . . . . 35 Ark. Code Ann. 19-11-246 . . . . . . . . . . . . . . . . . . 35 D.C. Code 16-4401(8) . . . . . . . . . . . . . . . . . . . . . . 36

xii D.C. Code 1-204.24a . . . . . . . . . . . . . . . . . . . . . . . . 1 D.C. Code 1-204.24d . . . . . . . . . . . . . . . . . . . . . . . . 1 D.C. Code 2-301.04 . . . . . . . . . . . . . . . . . . . . . . . . . 1 D.C. Code 2-308.03 . . . . . . . . . . . . . . . . . . . . . . . . . 1 D.C. Code 2-308.14 . . . . . . . . . . . . . . . . 1, 13, 16, 18 D.C. Code 2-308.15 . . . . . . . . . . . . . . . . . . . . . . 1, 16 D.C. Code 2-381.02 . . . . . . . . . . . . . . . . . . . . . . 1, 16 D.C. Code 2-381.03 . . . . . . . . . . . . . . . . . . . . . . 1, 16 D.C. Code 28:3-404 . . . . . . . . . . . . . . . . . . . . . . . 13 D.C. Code 28:3-405 . . . . . . . . . . . . . . . . . . . . . . . 13 D.C. Code 47-355.01 et seq. . . . . . . . . . . . . . . . . 14 Hawaii Rev. Stat. 103D-703 . . . . . . . . . . . . . . . . . 35 30 Ill. Comp. Stat 500/20-75 . . . . . . . . . . . . . . . . . . 35 Kentucky Rev. Stat. 45A.235 . . . . . . . . . . . . . . . . 35 Kentucky Rev. Stat. 45A.245 . . . . . . . . . . . . . . . . 35 Kentucky Rev. Stat. 45A.255 . . . . . . . . . . . . . . . . 35 La. Rev. Stat. 39:1673 . . . . . . . . . . . . . . . . . . . . . 35 La. Rev. Stat. 39:1685 . . . . . . . . . . . . . . . . . . . . . 35 La. Rev. Stat. 39:1691 . . . . . . . . . . . . . . . . . . . . . 35 Md. Code Ann., State Fin. & Proc. 15-211 . . . . . 35 Mont. Code Ann. 18-1-401 . . . . . . . . . . . . . . . . . . 35 62 Pa. Cons. Stat. 1724 . . . . . . . . . . . . . . . . . . . . 35

xiii 62 Pa. Cons. Stat. 1725 . . . . . . . . . . . . . . . . . . . . 35 Procurement Reform Amendment Act of 1996, 1996 D.C. Stat. 259, 101(b) (1997) . . . . . . . . . . . . . . 7 R.I. Gen. Laws 37-2-46 . . . . . . . . . . . . . . . . . . . . . 35 R.I. Gen. Laws 37-2-49 . . . . . . . . . . . . . . . . . . . . . 35 S.C. Code Ann. 11-35-4230 . . . . . . . . . . . . . . . . . . 35 S.C. Code Ann. 11-35-4320 . . . . . . . . . . . . . . . . . . 35 S.C. Code Ann. 11-35-4410 . . . . . . . . . . . . . . . . . . 35 Tex. Govt Code 2260.051 . . . . . . . . . . . . . . . . . . . 35 Tex. Govt Code 2260.052 . . . . . . . . . . . . . . . . . . . 35 Tex. Govt Code 2260.102 . . . . . . . . . . . . . . . . . . . 35 Va. Code Ann. 2.2-4363 . . . . . . . . . . . . . . . . . . . . 35 Va. Code Ann. 2.2-4365 . . . . . . . . . . . . . . . . . . . . 35 Other Authorities Financial Management and Control Order No. 9715 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 American Arbitration Association, Commercial Arbitration Rule R-7 . . . . . . . . . . . . . . . . . . . 5, 33

1 OPINIONS BELOW The opinion of the District of Columbia Court of Appeals (Court of Appeals) is reported at 80 A.3d 650 (D.C. 2013). App. 1-65. The decision of the Superior Court of the District of Columbia (Superior Court) is unreported. App. 66-120. JURISDICTION The Superior Court issued its decision denying BOAs Motion to Dismiss or, in the Alternative, Stay Based on Forum Selection and Arbitration Clauses, which the court treated as a motion to compel arbitration under the FAA, on December 9, 2009. App. 66-120. That decision was immediately appealable under 9 U.S.C. 16(a)(1)(A). The Court of Appeals affirmed the Superior Courts decision on November 27, 2013. App. 1-65. This Court has jurisdiction under 28 U.S.C. 1257(a) and (b). RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS The pertinent provisions of the United States Constitution (the Supremacy Clause, art. VI, 2) and the Federal Arbitration Act (9 U.S.C. 2 and 3) are reprinted in the appendix at App. 121-122. Other statutes cited herein and re-printed in the appendix are: D.C. Code 1-204.24a and 1-204.24d; D.C. Code 2-381.02 and 2-381.03 (formerly D.C. Code 2-308.14 and 2-308.15); Former D.C. Code 2-301.04 and 2-308.03;

2 and D.C. Appropriations Act 2006, 109 Pub. L. No. 115, 132, 119 Stat. 2396, 2252 (2005). App. 122-144. STATEMENT OF THE CASE This case arises from the refusal of the District of Columbia Superior Court and Court of Appeals to enforce an arbitration provision in bank account documents that District of Columbia officials, who are vested by statute with independent contracting authority, signed and agreed to twice. Despite the Districts agreement on two separate occasions to account documents containing the arbitration provision, the Court of Appeals improperly invoked a District procurement statute, the Procurement Practices Act (PPA), and contract integration principles to invalidate the Districts agreement to arbitrate. The Court of Appeals decision directly conflicts with the Federal Arbitration Act, 9 U.S.C. 1, et seq. (FAA), and the federal substantive law of arbitration that has developed over the last 50 years. First, it impermissibly elevates a District procurement statute over the FAA to lodge exclusive jurisdiction for the dispute in an administrative or judicial forum. Second, it impermissibly refuses to harmonize the governing account documents to give effect to the arbitration provision when harmonization is not only possible, but necessary to avoid extinguishing the basic account documents upon which the accounts operation depends. Third, it impermissibly decides issues that should be decided by an arbitrator, as the District

3 challenged the agreements containing the arbitration provisions in their entirety, and the arbitration provisions specifically reserve questions of arbitrability to the arbitrator. The Court of Appeals published decision not only diverges from the well-established federal substantive law of arbitration; it also marks a significant step in eroding the enforceability of arbitration provisions in public contracts. Given its departure from established law and the implications of its decision, this Courts review is warranted. I. Factual Background A. Harriette Walters Fraudulent Scheme This case arises from the fraudulent scheme of Harriette Walters (Walters), a former manager in the Districts Office of Tax and Revenue (OTR). For nearly 20 years, beginning in the late 1980s, Walters orchestrated and carried out a criminal scheme in which she caused the OTR to issue fraudulent tax refund checks to herself and various friends, family members and companies (both real and fictitious) on an account that the District maintained with BOA, known as a Controlled Disbursement Account (CDA). App. 3. In 2000, Walters allegedly involved Walter Jones, an assistant branch manager for BOA, to help facilitate negotiation of some fraudulent checks.2 Id.

Walters did not meet Jones until 1994 or 1995, and his alleged involvement did not begin until around 2000. Statement of the Offenses at 4, 12-14, 43, United States v. Walters, Case No. 1:08-cr00285 (D.D.C. Sept. 16, 2008) (Statement of the Offenses).

4 Walters scheme was discovered in 2007. Over its course, Walters managed to steal over $48 million from the District.3 She is now serving a 17-year prison sentence. Through its Complaint in this action, the District seeks to hold BOA responsible for the damage caused by Walters scheme. B. The Agreement Governing the Requires Arbitration of Disputes CDA

The CDA is a specialized type of business account. Each day, it allows the District to transfer the exact amount of funds needed to cover checks presented on that day immediately before payment is made on those checks. App. 6. This allows the District to invest the funds elsewhere for a higher rate of return until they are needed to cover checks. Id. This service also allows the District to review and approve or stop payment on checks as they are presented. App. 76. Each year, hundreds of millions of dollars flowed through the account. Id. The account is governed by certain bank documents and agreements, one of which is BOAs Treasury Services Terms and Conditions Booklet (Treasury Booklet). The Treasury Booklet is integral to the maintenance and operation of a CDA. The Treasury Booklet (and other bank documents incorporated by it)
3

Statement of the Offenses at 14. A 2008 investigative report prepared for the District Council concluded that the OTR should have caught Walters scheme, but a failure of controls, dysfunctional work environment, and lack of oversight within the District allowed it to continue. (J.A. 161-170, Bank of America, N.A. v. District of Columbia, 80 A.3d 650 (D.C. App. 2013) (No. 10CV-78).)

5 sets forth the services provided in CDAs and the related terms and conditions. App. 147-160. When opening a CDA, a customer executes an Authorization and Agreement for Treasury Services (Authorization), which incorporates the Treasury Booklet. App. 162169. The Treasury Booklet contains an arbitration provision stating: Any dispute or controversy concerning your use of Services described in this Booklet will be decided by arbitration in the United States of America . . . in accordance with the United States Arbitration Act (Title 9, U.S. Code) under the Commercial Arbitration Rules of the American Arbitration Association. App. 8, 158. Under Rule R-7 of the Commercial Arbitration Rules of the American Arbitration Association (AAA), questions of arbitrability are decided by the arbitrator. (a) The arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of the arbitration agreement. (b) The arbitrator shall have the power to determine the existence or validity of a contract of which an arbitration clause forms a part. Such an arbitration clause shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitrator that the contract is null and void shall not for that reason alone render invalid the arbitration clause.

6 App. 144 (emphasis added). The Treasury Booklet further provides that, on each day that BOA provides any treasury service to an account holder, the account holder represents and warrants that: Its agreement to each provision in the Treasury Booklet is a duly authorized, legal, valid, binding and enforceable obligation; It has obtained all approvals and authorizations required to permit the delivery of the Agreement and Authorization form and any other necessary documentation, and the performance and consummation by [it] of the transactions completed under each service; and Its performance of its obligations will not violate any law, regulation, judgment, decree or order applicable to [it]. App. 157. Like any CDA holder, the District executed standard bank documents in which it accepted and agreed to be bound by the Treasury Booklet. In fact, the District executed these documents on two occasions, in 2000 and 2006. The first occurred after the Districts Chief Financial Officer (CFO) delegated and authorized the Districts Deputy CFO/Treasurer, and its Associate Treasurer, to enter into banking account and treasury services agreements. At all relevant times, the Districts Office of the Chief Financial Officer (OCFO) was vested by statute with independent contracting

7 authority and was exempted from the PPA.4 On January 6, 2000, the CFO executed a Certified Copy of Corporate Resolutions Opening and Maintaining Deposit Accounts and Services (Corporate Resolution), which authorized District officials holding the titles of CFO, Deputy CFO/Treasurer, and Associate Treasurer to execute and sign any application, deposit agreement, signature card and any other documentation required by the Bank to open said accounts. App. 6-7, 161. The Corporate Resolution also authorized those officials to: enter any agreements with [BOA] for the provision by the Bank of various Treasury Management services to [the District] as such officer may determine, in his or her sole discretion, and to sign any and all documents and take all actions required by the Bank relative to such Treasury Management services . . . and that any such Treasury Management agreement(s) shall remain in full force and effect
As early as 1995, the OCFO was statutorily vested with independent contracting authority that could be delegated to members of the CFOs staff. See D.C. Financial Responsibility and Management Assistance Act of 1995, Pub. L. No. 104-8, 302(a), 109 Stat. 97, 142-47 (1995) (codified as amended at D.C. Code 1-204.24a and 1-204.24d); Procurement Reform Amendment Act of 1996, 1996 D.C. Stat. 259, 101(b) (1997) (codified as amended at D.C. Code 2-301.04); Financial Management and Control Order No. 97-15. See App. 122-131, 145. The 2006 District of Columbia Appropriations Act confirmed the OCFOs independent contracting authority, as it exempted the OCFO from the PPA retroactively to 1997. See D.C. Appropriations Act 2006, 109 Pub. L. No. 115, 132, 119 Stat. 2396, 2522 (2005). See App. 144.
4

8 until written notice to terminate given in accordance with the terms of any such agreement shall have been received by [BOA] . ... Id. (emphasis added). Then, on September 25, 2000, the District entered into a treasury services agreement with BOA, which permitted the maintenance and operation of the CDA. The Districts Acting Deputy CFO/Treasurer and its Interim Associate Treasurer and Banking Manager executed an Authorization and Agreement for Treasury Services (2000 Authorization), in which they agreed, on the Districts behalf, to be bound by the Treasury Booklet.5 App. 8, 162-165. The 2000 Authorization further states that the Treasury Booklet constitutes a separate agreement between the Client and each Bank, now or in the future, when the Bank provides any service. App. 81-82, 162. On that same day, the Districts Acting Deputy CFO/Treasurer also signed a Treasury Services Delegation of Authority form, which confirmed the authority of certain District officials to sign authorizations and agreements relating to the CDA and its accompanying services.6 App. 167169. The second occasion on which the District agreed to the Treasury Booklet occurred in 2006, after the
5

The Corporate Resolution authorized both officials to sign treasury service agreements. App. 7-8, 77-78, 161. The delegation applied to any District officials holding the title of Deputy CFO and Treasurer, Associate Treasurer, or Banking Relations Manager.

9 parties executed a formal government contract in 2005 (discussed below) that referenced and incorporated the Treasury Booklet and related account user documentation. On March 6, 2006, the Districts Deputy CFO/Treasurer signed another treasury services Authorization accepting and agreeing to be bound by the Treasury Booklet (2006 Authorization). App. 11, 170-173. That agreement put in place the 2004 version of the Treasury Booklet, which contained the same arbitration clause, and the same representations and warranties, as the prior version. App. 199-201. Throughout the relevant time period, the Corporate Resolution was never revoked or terminated, and the District never provided any written notice of termination of its agreements to be bound by the Treasury Booklet. Pursuant to the Treasury Booklets representations and warranties, on each day that the District used any CDA service (which was virtually every day), it reaffirmed its acceptance of the Treasury Booklet. App. 157-158, 199-200. C. The Districts 2002 Request for Proposal and the 2005 Contract Although BOA provided CDA services to the District since at least 2000, on May 22, 2002, the District issued a formal Request for Proposals (RFP) Number CFOPD-02-R-019 to BOA for maintenance of the CDA. App. 9, 240. On June 24, 2002, Edmund Bianchi, a Senior Vice President and Senior Client Manager for BOA, signed and submitted BOAs Response to Request For Proposal For Financial Services For OFT Controlled Disbursement Account RFP No. CFOPD-02-R-019, which was referred to as

10 the 2002 Contractors Technical Proposal and Cost Proposal. App. 84, 212-217. The District did not complete the RFP process until 2005. Due to the delay, the District issued an amended Request for Proposal (2005 RFP) in March 2005. App. 10. Throughout this time, the District continued to use the CDA. On April 25, 2005, BOA submitted a revised RFP Response, updated consistent with the 2005 RFP, and a best and final offer. The revised RFP response is referred to as the Contractors 2005 Technical Proposal and Cost Proposal. App. 10-11, 8788, 227-230. On November 13, 2005, BOA and the District signed a formal government contract that continued the CDA services (the 2005 Contract). App. 10-11, 206-211. The contract document contained a table of contents reflecting that it consisted of five sections or articles. App. 206-207. Article IV, entitled Incorporated Documents by Order of Precedence, provided that the Contractors Technical Proposal and Cost Proposal were second in the order of precedence, and the Districts RFP was last. App. 211. Article V provided: This contract, including specifically incorporated documents, constitutes the total and entire agreement of the parties. All previous discussions, writings and agreements are merged herein. App. 11, 211. The 2002 and 2005 Contractor Technical Proposals in BOAs RFP responses included an Agreements/Documentation section specifically referencing the bank agreements and user documentation that governed the CDA, including in relevant part:

11 Terms & Conditions for Treasury Services Signature Card & Resolution Wire Transfer Forms Automated Investment Services Agreement App. 216, 229. Thus, in accordance with Article IV, these were Incorporated Documents. Moreover, the documents in that section included a blank copy of the Authorization and Agreement for Treasury Services form, through which the District had agreed (and in March of 2006, would agree again) to the Treasury Booklet. App. 219-221, 232-234. Mr. Bianchi also sent copies of the Treasury Booklet with the 2002 and 2005 Contractor Technical Proposals.7 The 2002 RFP, last in the order of precedence, included Contract Clauses and Disputes provisions that incorporated certain laws and regulations by reference, including the PPA. App. 245-246, 249. The formulaic reference to the PPA contained no language suggesting any intention to proscribe the OCFOs independent contracting authority and exemption from the PPA. Likewise, the Disputes provision outlined the first step of the PPAs dispute resolution procedure and stated that disputes aris[ing] under or relat[ing]
7

The Court of Appeals stated that the Superior Court found that the Treasury Booklet was not included with BOAs 2002 or 2005 RFP responses. App. 52. This misstates the Superior Courts findings. In fact, the Superior Court credited Mr. Bianchis testimony that he submitted a copy of the Treasury Booklet in a separate envelope that he attached to the envelope containing the Contractor Technical Proposal with both the 2002 and 2005 RFP Responses. App. 85.

12 to the contract shall be submitted to a contracting officer for a written decision, but said nothing about the resolution of claims not arising under the contract.8 App. 249. Moreover, the PPA, which is a jurisdictional statute, does not limit the authority of District officials to agree to arbitrate disputes. Neither the PPAs language nor the Districts RFP contain any provision indicating any intent to supersede or displace prior or contemporaneously existing arbitration agreements indeed, there is no mention of arbitration in either. Significantly, nothing in the RFP purported to revoke any signature cards or the Districts Corporate Resolution. This is consistent with the nature of the documents incorporated by reference into the 2005 Contract. As discussed above, on March 6, 2006 (four months after the 2005 Contract was signed), the Districts Deputy CFO/Treasurer signed the 2006 Authorization agreeing to be bound by the Treasury Booklet. App. 11, 170-173. His actions were consistent with the manner in which the CDA had been operated since its inception.

The Districts RFP also had a Contract Administration Data section, which stated that [t]he Contracting Officer is the only official authorized to contractually bind the District. App 9, 244. As discussed above, however, the OCFO had independent contracting authority that could be delegated to members of the CFOs staff. See supra n.4.

13 II. Proceedings Below A. Proceedings in the Superior Court The District filed a Complaint against BOA and certain individual defendants in the District of Columbia Superior Court on October 31, 2008, followed by a First Amended Complaint on December 17, 2008. The District claimed no breach of contract, but asserted statutory and common-law tort claims: Counts One and Two Violations of the Uniform Commercial Code, D.C. Code 28:3-404 and 405 Count Three Negligence Count Four Fraud Count Five Breach of Fiduciary Duty Count Six Conversion Count Seven Violation of the D.C. False Claims Act, D.C. Code 2-308.14 Count Eight Failure to Adequately Hire, Train or Supervise App. 3, 69-70. These claims were based on allegations that BOA negligently failed to detect Harriette Walters scheme and negotiated fraudulent checks that Walters caused OTR to issue; that a BOA employee (Walter Jones) assisted the scheme; and that BOA was responsible for the Districts damages. Id. The District alleged that it lost over $39 million and sought treble damages under

14 the D.C. False Claims Act, for a total demand of over $117 million. App. 3-4. Pursuant to the Federal Arbitration Act, 9 U.S.C. 3, BOA moved on January 16, 2009, to dismiss the action or, alternatively, for a stay pending arbitration.9 App. 253-256. Multiple rounds of briefing followed, and the Superior Court conducted an evidentiary hearing between September 11 and 25, 2009.10

BOA also sought enforcement of a forum selection clause in its Deposit Agreement, which required the dispute to be resolved in North Carolina. The forum selection clause is not at issue in this Petition. The extensive briefing and evidentiary hearing was at least partially due to the Districts shifting arguments in opposition to BOAs motion. For example, the District initially argued that its entire contract with BOA was void ab initio under the Districts Anti-Deficiency Act, D.C. Code 47-355.01 et seq. See Plaintiffs Mem. of Pts. and Auth. in Opp. to Bank of Americas Mot. to Dism. or, in the Alt., Stay Based on Forum Selection and Arbitration Clauses at 7-15, District of Columbia v. Bank of America, N.A., et al., Case No. 2008 CA 007763 B (D.C. Super. Ct. Feb. 19, 2009). Under this Courts precedents, the Districts argument that the contract was void ab initio must go to the arbitrator. See Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 445-449 (2006). Upon realizing this, the District sought other strategies for circumventing the arbitration provision. The Superior Court ultimately took the unusual step of requiring the District to file a separate pleading before the evidentiary hearing to clarify and explain its legal position. See Praecipe in Response to the Courts Request that the District Clarify its Legal Position, District of Columbia v. Bank of America, N.A., et al., Case No. 2008 CA 007763 B (D.C. Super. Ct. Sept. 15, 2009). The court also allowed the District to present oral and parol evidence at odds with the written agreements and documents executed by the parties. See D.C. Super. Ct. Hrg Tr., 945:2-946:11, 947:24-950:23, 953:11-

10

15 The Superior Court treated BOAs motion as a motion to compel arbitration under the FAA. App. 4, 66-67. BOA maintained that under the FAA, the District was bound by the Treasury Booklets arbitration clause, and the Districts claims must be arbitrated.11 On December 9, 2009, the Superior Court denied BOAs motion. The Superior Court found that the Districts claims fell within the scope of the Treasury Booklets arbitration provision. App. 12, 68. The Superior Court further held that the 2005 Contract did not invalidate the documents signed by District officials to open and maintain the CDA. App. 101. However, rather than harmonize the governing documents, the Superior Court cited principles of contract integration and held that the 2005 Contract superseded any previously-agreed dispute resolution provisions, and any provisions that would allow District officials to agree to arbitration. App. 95-102. The Superior Court also held that after the execution of the 2005 Contract, only the designated contracting officer12 could bind the District to any modifications, so

958:20, 1186:3-1187:18, 1189:15-1190:13, 1360:2-19, 1365:161366:17 See Mem. in Supp. of Bank of Americas Mot. to Dism. or, in the Alt., Stay Based on Forum Selection and Arbitration Clauses at 12, 10, 22-31, District of Columbia v. Bank of America, N.A., et al., Case No. 2008 CA 007763 B (D.C. Super. Ct. Jan. 16, 2009). The Contracting Officer provision is in the Contract Administration Data section of the Districts RFP. App. 243-245. In this case, the individual so designated did not know what a CDA was and never interacted with anyone at BOA during its operation.
12 11

16 the 2006 Authorization (and thus, any documents agreed to thereunder, including the 2004 Treasury Booklet) was invalid. App. 99, 101-102. The Superior Court further held that the PPA precluded arbitration because it provided that claims by the District arising under or relating to a contract shall be decided by the contracting officer, and that the Districts Contract Appeals Board (CAB) would hear appeals from a contracting officers decision. App. 106-107. This, according to the Superior Court, withheld authority from OCFO officials to enter arbitration agreements in the first place. App. 106112. The Superior Court further held that the OCFO was not exempt from the PPA. App. 110-111. The Superior Court then dismissed Counts One through Six and Eight, holding that under the PPA, those claims fell within the jurisdiction of the contracting officer and the CAB. App. 4-5, 115. The Superior Court retained jurisdiction over Count Seven, which asserted a violation of the D.C. False Claims Act.13 Id. The Superior Court noted that the mechanism for resolving disputes under the False Claims Act, which is part of the PPA, is for the Attorney General to bring an action in Superior Court. App. 104-105. In so doing, the Superior Court cited former D.C. Code 2-308.15(a) (now D.C. Code 2381.03(a)), which stated that the District may bring an

See D.C. Super. Ct. Hrg Tr., 1670:7-1671:17.

13

At the time, the relevant provisions of the False Claims Act were codified at D.C. Code 2-308.14 and 2-308.15. They are now codified at D.C. Code 2-381.02 and 2-381.03. App. 133-143.

17 action . . . in the Superior Court of the District of Columbia for specified fraudulent acts. App. 104-105, 135 (emphasis added). The Superior Court thus held that actions under the False Claims Act were solely within the Superior Courts jurisdiction and could not be arbitrated. App. 4-5, 115. B. The Court of Appeals Decision BOA noted a timely appeal to the Court of Appeals on January 7, 2010. App. 257-263. In its briefs, BOA again argued that, under the FAA, the Districts claims must be arbitrated pursuant to the Treasury Booklets arbitration provision, the FAA superseded any District law purporting to require a different forum, and the Districts challenges to the underlying agreements were for the arbitrator to decide.14 App. 264-266. On November 27, 2013, the Court of Appeals affirmed the Superior Courts decision. Although the Treasury Booklets arbitration provision incorporated the AAAs Commercial Arbitration Rules, which required issues of arbitrability to be decided by the arbitrator (App. 144), the Court of Appeals held that the trial court was the proper forum to determine arbitrability. App. 21-30.

14

Among other cases, BOA cited and relied on this Courts decisions in Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440 (2006), Preston v. Ferrer, 552 U.S. 346 (2008), Rent-A-Center West, Inc. v. Jackson, 130 S. Ct. 2772 (2010), and AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011). See Brief of Appellant at 15-40, Bank of America, N.A., et al. v. District of Columbia, 80 A.3d 650 (D.C. Ct. App. 2013) (No. 10-CV-78).

18 Like the Superior Court, the Court of Appeals held that the PPA precluded arbitration because it provided that claims by the District arising under or relating to a contract would be heard by the contracting officer, and the CAB would hear appeals from a contracting officers decision. App. 34-37. The Court of Appeals opined that these PPA provisions effectively withheld authority from District officials to agree to arbitrate contract claims, and that the OCFO was not exempt from the PPA. App. 34-42. The Court of Appeals further held that other PPA provisions precluded OCFO officials from agreeing to arbitrate fraud claims. App. 43-46. It first noted that, under the PPA, fraud claims fell outside the jurisdiction of the contracting officer and CAB, and contracting officers were not permitted to settle, compromise, pay or otherwise adjust any claim involving fraud. App. 43-45, 53. The Court of Appeals then cited the False Claims Act, former D.C. Code 2308.14(a), and echoed the Superior Courts conclusion that fraud claims by the District may only be heard in court. App. 53, 61. The Court of Appeals also concluded that the 2005 Contract superseded prior agreements and withheld from OCFO officials the authority to bind the District to any other agreements going forward. App. 50-57. Like the Superior Court, rather than harmonizing the documents governing the account, the Court of Appeals cited contract integration principles and held that the 2005 Contract was completely integrated as to dispute resolution and modification authority. Id. The Court of Appeals further stated that, even if the 2005 Contract was only partially integrated, the Treasury

19 Booklets arbitration provision could not be reconciled or harmonized with the 2005 Contract. App. 55-57. Finally, the Court of Appeals held that the 2005 Contract also extinguished the Districts subsequent execution of a treasury services Authorization in March of 2006, in which it again agreed to be bound by the Treasury Booklet. App. 57-60 Notably, the District conceded that the Superior Court had erred in holding that the Districts claims related to the contract. App. 60. Thus, the District agreed with BOA that, even if the PPA applied, its claims would not fall within the jurisdiction of the contracting officer and CAB. Id. Despite this concession, the Court of Appeals stated that it was unclear whether the Districts claims arise under the parties contract, and further inquiry was necessary to make that determination. App. 62-63. Thus, to the extent that the Superior Court had dismissed the Districts claims in favor of jurisdiction before the contracting officer and CAB, the Court of Appeals vacated the dismissal and remanded to the Superior Court to determine whether the claims should be heard by the contracting officer and CAB, or the Superior Court. App. 65. In all other respects, the Court of Appeals upheld the Superior Courts conclusion that the Districts claims were not subject to arbitration, and affirmed the Superior Courts denial of BOAs motion.

20 REASONS FOR GRANTING THE PETITION I. The Court of Appeals Published Decision Establishes Precedent That Conflicts With the FAA, This Courts Precedents, and The Federal Substantive Law of Arbitration. For decades, this Court has emphasized that Section 2 of the FAA declared a national policy favoring arbitration and withdrew the power of states to require a judicial forum for the resolutions of claims that the parties agreed to arbitrate. Southland Corp. v. Keating, 465 U.S. 1, 10 (1984). See also AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740, 1749 (2011) ([O]ur cases place it beyond dispute that the FAA was designed to promote arbitration). Indeed, Section 2 is a congressional declaration of a liberal federal policy favoring arbitration agreements, notwithstanding any state substantive or procedural policies to the contrary. Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983). Consistent with this national policy, the Court has produced a body of precedent under which the FAA supplies not simply a procedural framework applicable in federal courts; it also calls for the application, in state as well as federal courts, of federal substantive law regarding arbitration. Preston v. Ferrer, 552 U.S. 346, 349 (2008). This well-established federal substantive law displaces state laws and rejects application of state law that impermissibly interferes with the enforcement of arbitration agreements. See, e.g., Concepcion, 131 S. Ct. at 1748-50 (abrogating state decisional law that precluded enforcement of class arbitration waiver provisions); Perry v. Thomas, 482 U.S. 483, 489-90, 492 n. 9 (1987) (noting that 2

21 forecloses state legislative attempts to undercut the enforceability of arbitration agreements, as well as any state-law principle that takes its meaning precisely from the fact that a contract to arbitrate is at issue[.]) (citing Southland, 465 U.S. at 16-17, and Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 404 (1967)). Finally, the national policy and the federal substantive law favoring the enforceability of arbitration agreements apply regardless of whether the challenge to the contract or arbitration clause is in a state or federal forum. Preston, 552 U.S. at 353 (citing Southland, 465 U.S. at 16). Against this backdrop, the Court of Appeals decision impermissibly ignores and circumvents wellestablished precedent and federal substantive law regarding arbitration. Moreover, because the Court of Appeals decision is published, it establishes precedent in the District of Columbia that is inconsistent with controlling law, and raised the specter of inconsistent enforcement of FAA arbitration agreements well beyond the District. A. The Lower Courts Improperly Elevated a District Law (the PPA) Over the FAA. This Court has held repeatedly that when parties agree to arbitrate claims, the FAA supersedes state laws that assign primary or exclusive jurisdiction to another forum. In Southland, for instance, this Court held that 2 of the FAA displaced the California Franchise Investment Law, which state courts had interpreted to require judicial resolution of claims brought under that law. See 465 U.S. at 10-16. Similarly, in Perry v. Thomas, this Court held that 2 of the FAA preempted 229 of the California Labor

22 Code, which allowed claimants to maintain judicial actions regardless of whether the parties had agreed to arbitrate. See 482 U.S. at 489-91. More recently, in Preston v. Ferrer, this Court applied the same principles to a state law that required disputes to be heard in an administrative forum. In Preston, a contract dispute arose between Ferrer, a television personality, and Preston, an attorney. See 552 U.S. at 350. Ferrer argued that Preston violated the California Talent Agencies Act (TAA) by serving as an agent without being licensed. Id. at 352. Ferrer sought to avoid an arbitration provision in the parties contract by arguing that the TAA vested the California Labor Commissioner with original jurisdiction over the dispute. Id. Preston argued that the TAA was inapplicable because he was serving as Ferrers personal manager, not an agent, and moved to compel arbitration. Ferrer urged that the TAA did not preclude arbitration entirely, but merely required the dispute to be submitted to an administrative forum first. Id. at 354, 356-58. This Court rejected that argument, because the TAA granted exclusive original jurisdiction to the Labor Commissioner to decide a question that the parties had agreed to arbitrate. Accordingly, the Court held that when parties agree to arbitrate, the FAA supersedes state laws lodging primary jurisdiction in another forum, whether judicial or administrative. Id. at 359. The District and the Court of Appeals attempt to evade the precedent established by Preston, Southland and Perry by couching the PPA not as a state law purporting to vest exclusive jurisdiction in an

23 administrative or judicial forum, but rather as a state law whose effect is to withhold the Districts authority to agree to arbitration. Of course, the PPA says nothing about arbitration or the authority of District officials to agree to arbitration. The Districts argument and the Court of Appeals decision, rather, rest on the implication that because the PPA (which was admittedly not applicable to the OCFO) was included in a contract provision and gave the contracting officer and CAB jurisdiction to hear disputes arising under the contract, and permitted (but did not exclusively require) civil actions by the District in claims involving fraud, Congress intended to prohibit the District from entering arbitration agreements. Indeed, following this logic, every public contracting law across the country that establishes an administrative officer or board to hear disputes with public contractors, or authorizes state attorneys general to pursue fraud claims against government contractors in court, would impermissibly bar enforcement of arbitration agreements in contracts impacting interstate commerce. In any event, the distinction that the District and the Court of Appeals draw is meaningless, as the effect is the same to preclude arbitration. This is precisely the type of state law application that the FAA and this Courts precedents forbid. In Southland, for instance, the California Supreme Court interpreted a section of the California Franchise Investment Law as requiring disputes to be heard in a judicial forum. See 465 U.S. at 10. That interpretation of state law, in effect, voided the parties arbitration agreement. This Court held that the California Supreme Courts interpretation directly conflicts with 2 of the [FAA] and violates the

24 Supremacy Clause. Id. For similar reasons, this Court held that the state law at issue in Preston was superseded. 552 U.S. at 356-59. As this Court recently held in Concepcion, [w]hen state law prohibits outright the arbitration of a particular type of claim, the analysis is straightforward: The conflicting rule is displaced by the FAA. 131 S. Ct. at 1747. Nothing in the FAA suggests an intent to preserve state-law rules that stand as an obstacle to the accomplishment of the FAAs objectives. Id. at 1748. Here, the Court of Appeals applied a District law from which the OCFO was exempted to invalidate fundamental bank documents and agreements, and lodge primary jurisdiction in an administrative or judicial forum over a dispute that the parties agreed to arbitrate. Attempting to label this impermissible elevation of District law over the FAA as an issue of the Districts authority to enter arbitration agreements cannot cloak the Court of Appeals fundamental deviation from the established body of federal substantive law. Accordingly, this decision conflicts with and stands as an obstacle to the FAA and warrants review. B. The Lower Courts Improperly Failed to Harmonize the Governing Documents in Accordance With the FAA and Federal Substantive Law. Pursuant to the Congressional policy favoring arbitration and the federal substantive law that has developed, when it is possible to harmonize an arbitration clause with other contractual provisions,

25 courts must do so. See, e.g., Preston v. Ferrer, 552 U.S. 346, 362-63 (2008) (holding that arbitration provision must be harmonized with choice-of-law clause to give effect to the arbitration provision) (citing Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 58-59, 63-64 (1995)). Here, the Court of Appeals use of contract integration principles to read an arbitration provision out of the parties agreement impermissibly undermines the federal policy that the FAA reflects and conflicts with federal substantive law. In Bank Julius Baer & Co., Ltd. v. Waxfield Ltd., 424 F.3d 278 (2d Cir. 2005), the Second Circuit recognized that when multiple contract documents are signed at different times and one contains an arbitration provision, under the FAA, the court must attempt to harmonize them in favor of arbitrability. Bank Julius involved a banking relationship in which the account-opening documents that the parties executed included arbitration provisions.15 Id. at 280, 282. Later, the parties executed additional agreements that lacked arbitration provisions, but contained a merger clause and a forum selection clause laying jurisdiction in any New York State or Federal court sitting in New York City. Id. at 282. The issue was whether those merger and forum selection clauses superseded or extinguished the earlier agreement to arbitrate. The Second Circuit recognized that Congress declared a strong federal policy favoring arbitration as
15

The provision stated that any disputes would be submitted to mediation, and if they were not settled, they would proceed to arbitration. Bank Julius, 424 F.3d at 282.

26 an alternative means of dispute resolution. Id. at 281 (citation omitted). The court then held that the merger clause neither precluded enforcement of the arbitration provision, nor destroyed the earlier agreements containing that provision. Id. at 282-83. Otherwise, the court noted, it would produce absurd results, as it would expunge the very agreements upon which the account rested. Id. at 283. Turning to the forum selection clause, the court stated: Under our cases, if there is a reading of the various agreements that permits the Arbitration Clause to remain in effect, we must choose it: The existence of a broad agreement to arbitrate creates a presumption of arbitrability which is only overcome if it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. WorldCrisa Corp. v. Armstrong, 129 F.3d 71, 74 (2d Cir. 1997) (internal quotation marks omitted). Moreover, we cannot nullify an arbitration clause unless the forum selection clause specifically precludes arbitration. Personal Sec. & Safety Systems v. Motorola, 297 F.3d 388, 396 n.11 (5th Cir. 2002). Bank Julius, 424 F.3d at 284. The court noted that the forum selection clause makes no reference to arbitration, and explained that both the arbitration provision and forum selection clause could be given some effect and harmonized as complementary to each other. Id. at 284-85. Thus, any doubts about the disputes arbitrability should be resolved in favor of

27 [the arbitration provisions] coverage [of the dispute]. Id. at 285 (quoting WorldCrisa Corp., 129 F.3d at 74). Bank Julius cited Patten Securities Corp. v. Diamond Greyhound & Genetics, 819 F.2d 400 (3d Cir. 1987), abrogated on other grounds, Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 287 (1988), in which the Third Circuit addressed a similar scenario. Patten Securities involved a claim against a securities broker/dealer that was a NASD member, and thus had agreed to NASD rules providing for arbitration of customer disputes. 819 F.2d at 402, 406. The parties also had signed an underwriting agreement containing a forum selection clause stating that courts in New Jersey would have jurisdiction over disputes. Id. at 403, 407 n.3. The broker/dealer argued that the claimant had waived its right to arbitration. Id. at 403, 406-07. The Third Circuit rejected this argument, holding that the issue was governed by the FAA, and that a forum selection clause should be unenforceable if would contravene a strong public policy of the forum in which the suit is brought. Id. (quoting M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15 (1972)). Thus, the forum selection clause must be scrutinized carefully, and if doubts arise as to whether this dispute is arbitrable or not, such doubts must be resolved in favor of arbitrability. Id. at 407. The Third Circuit then observed that [c]onspicuously absent from the forum selection clause in the underwriting agreement is any reference to arbitration whatsoever. Id. The forum selection clause was therefore at least ambiguous, and it was possible to give effect to both the arbitration

28 requirement and the forum selection clause. Id. Thus, the subsequent agreement did not supersede the arbitration obligation. The Fourth Circuit recently addressed similar issues in UBS Financial Services, Inc. v. Carilion Clinic, 706 F.3d 319 (4th Cir. 2013). The case involved claims by a healthcare organization against two financial institutions, UBS and Citi, over services related to a bond issuance. Id. at 321-22. As FINRA members, UBS and Citi had agreed to FINRA rules requiring arbitration of customer disputes. Id. at 32224. UBS and Citi argued, however, that the claims were not arbitrable because the parties had signed agreements containing a forum selection clause that lay jurisdiction in federal court in New York. Id. at 323, 328. The Fourth Circuit court rejected that argument, holding that any provision purporting to displace the arbitration obligation must be sufficiently specific to impute to the contracting parties the reasonable expectation that they are superseding, displacing, or waiving the arbitration obligation. Id. at 328. UBS and Citi argued that the forum selection clause superseded the arbitration obligation by implication, but the court held otherwise, stating: [O]ne would reasonably expect that a clause designed to supersede, displace, or waive arbitration would mention arbitration. To be sure, the sentence might be found to refer to arbitration through use of the word proceedings, but then again the sentence does not suggest that such arbitration is superseded, displaced, or waived.

29 Id. at 329. The court concluded: [W]e believe that it would never cross a readers mind that the clause provides that the right to FINRA arbitration was being superseded or waived. No word even suggesting supersedence, waiver, or preclusion exists in the sentence. Id. at 330. As in the instant case, these courts confronted arguments that arbitration provisions were displaced by subsequent agreements containing merger clauses or provisions establishing jurisdiction in other fora. The courts held that the agreements should be harmonized and the arbitration provisions given effect. But when confronted with the same issue in this case, the Court of Appeals went in the opposite direction, even though it was possible to harmonize the documents. The 2002 RFP through its Disputes provision and incorporation of the PPA stated that contract disputes are within the jurisdiction of the contracting officer and the CAB. App. 246, 249. The District, however, asserted statutory and common-law tort claims, not contract claims. The District agreed that its claims do not arise under or relate to the contract, and argued that its claims fall within the exclusive jurisdiction of the Superior Court, not the contracting officer and CAB. App. 60. However, as discussed above, the relevant PPA section at the time was nonmandatory and non-exclusive it simply said that the District may bring an action . . . in the Superior Court[.] App. 135.

30 Thus, even if the PPA applies, it is possible to give effect to both the Treasury Booklets arbitration provision and the 2005 Contract, and to harmonize their provisions as complementary. The lower courts interpretation of District law to require only a judicial forum is precisely the outcome that this Courts decisions forbid. See, e.g., Preston, 552 U.S. at 352-60 (FAA superseded an application of state law requiring resort to an administrative forum); Southland, 465 U.S. at 10-16 (FAA superseded interpretation of state law that required litigation of franchise disputes in court). Because it is possible to harmonize the governing documents and give effect to the arbitration provision, courts must do so.16 Moreover, to hold that the 2005 Contract was completely integrated as the Court of Appeals did and that all prior agreements were superseded would yield the absurd results against which Bank Julius cautioned. That is, it would read out of the parties agreement the critical account-opening documents, upon which the account rests. See Bank Julius, 424 F.3d at 282-83. As in Bank Julius, the account
16

Even if the 2005 Contract could not be harmonized with the Treasury Booklets arbitration provision, the latter still would control. As discussed above, the Districts Deputy CFO/Treasurer executed a second Authorization for treasury services (in which he agreed on the Districts behalf to be bound by the Treasury Booklet) on March 6, 2006, after the 2005 Contract was signed. Under the 2000 Corporate Resolution, which was never revoked, the Deputy CFO/Treasurer was authorized to sign the 2006 Authorization. Moreover, pursuant to the representations and warranties in the Treasury Booklet, the Districts continued use of the CDA reaffirmed the Districts authorization and acceptance of the Treasury Booklet. App. 157, 199-200.

31 documents and agreements signed by the District including the Authorizations for treasury services and the Treasury Booklet necessarily must remain effective for the account to operate. As discussed above, they are the fundamental agreements for opening and maintaining the account. Without them, the account could not function and the District could not access the account services. App. 147-160, 162-169. The Court of Appeals divergence from the established substantive federal law of arbitration warrants review. II. The Lower Courts Improperly Decided Issues That Should Have Been Decided by the Arbitrator. In Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440 (2006), this Court re-affirmed that a challenge to the validity of a contract, and not just to the arbitration provision within it, is for the arbitrator to decide, not the court. 546 U.S. 444-49. While the District has tried to characterize its position as challenging only the Treasury Booklets arbitration provision, its challenge is, in fact, much broader. Where, as here, a party resisting arbitration argues that one agreement supersedes an earlier agreement containing an arbitration clause, the party is contesting the earlier agreement as a whole, not just the arbitration clause. Moreover, in asking the lower courts to hold that the 2005 Contract is completely integrated, the District challenged the validity of the prior agreements

32 it signed in their entirety.17 Similarly, the Court of Appeals conclusion that the 2005 Contract is completely integrated would extinguish those agreements entirely, not just with respect to arbitration. App. 51. Indeed, the Court of Appeals held that the 2005 Contract also extinguished the Districts subsequent execution of the Authorization and Agreement for Treasury Services in March of 2006, in which it again agreed to be bound by the Treasury Booklet. App. 57-60. Under Buckeye and its progeny, the resolution of such a challenge is for the arbitrator, not the court. Additionally, as discussed above, the arbitration clause in the Treasury Booklet incorporates the AAAs Commercial Arbitration Rules, which submit the arbitrability question to arbitration. When the arbitration agreement provides that the arbitrator will decide questions of arbitrability, the arbitrator must decide challenges to the arbitration agreement, unless the resisting party specifically challenges the provision delegating that authority to the arbitrator. Rent-ACenter West, Inc. v. Jackson, 130 S. Ct. 2772, 2777-81 (2010). Thus, any challenge to the arbitration provision is for the arbitrator to decide, not the court.18
17

See, e.g., Masurovsky v. Green, 687 A.2d 198, 202 (D.C. 1996) (completely integrated contract supersedes all other understandings and agreements with respect to the subject matter of the agreement between the parties, whether consistent or inconsistent); Howard Univ. v. Good Food Servs., Inc., 608 A.2d 116, 126 (D.C. 1992) (a completely integrated contract is a complete and exclusive statement of the terms of the agreement).

18

Other courts, including circuit courts of appeal and the District of Columbia federal district court, have held that when the parties

33 In a similar case, the Fifth Circuit held that when the arbitration clause specifies that the arbitrator will decide arbitrability, the question of whether a subsequent agreement supersedes an arbitration provision is for the arbitrator to decide. Agere Sys., Inc. v. Samsung Elecs. Co., 560 F.3d 337, 340 (5th Cir. 2009). In Agere, the party opposing arbitration argued that a 2000 agreement containing an arbitration clause had expired and was superseded by a 2006 agreement containing no arbitration clause. Id. The 2000 agreements arbitration clause left issues of arbitrability to the arbitrator. Id. Thus, the court held that the arbitrator must resolve the arbitrability issue. Id. Other federal and state trial courts applying the federal substantive law of arbitration have held that similar challenges to a prior agreement providing for arbitration raise issues to be decided by the arbitrator, not the court. For example, in Clyde Bergemann, Inc. v. Sullivan, Higgins & Brion, PPE LLC, No. 08-162-KI, 2008 WL 4279632 (D. Or. Sept. 18, 2008), the threshold issue was whether later versions of an employee handbook with no arbitration clause superseded a 2002 employee handbook, which contained an arbitration
arbitration agreement incorporates AAA Commercial Arbitration Rule R-7 (or its precursor), arbitrability issues are for the arbitrator to decide. See, e.g., Fallo v. High-Tech Inst., 559 F.3d 874, 878 (8th Cir. 2009) (incorporating AAA Rules was a clear and unmistakable expression of the parties intent to leave the question of arbitrability to an arbitrator); Contec Corp. v. Remote Solution Co., 398 F.3d 205, 208-09 (2d Cir. 2005) (same); Grynberg v. BP P.L.C., 585 F. Supp. 2d 50, 54-55 (D.D.C. 2008) (same); Avue Techs. Corp. v. DCI Group, LLC, No. 06-327 (JDB), 2006 WL 1147622 (D.D.C. Apr. 28, 2006) (same).

34 clause. The court held that the challenge was to the validity of the contract as a whole and not to the arbitration clause thus, under Buckeye, it was for the arbitrator, not the court, to decide which handbook applied. Id. at *2. Likewise, in Holloway v. Jim Walter Homes, Inc., No. 2:05-CV-516-WKW, 2006 U.S. Dist. LEXIS 42274 (M.D. Ala. June 22, 2006), the court held that the arbitrator, not the court, would rule on the plaintiffs argument that a deed superseded a real estate purchase contract containing an arbitration, as the validity of entire contract was at issue. Moreover, as the court stated in Ricardi v. Modern Silver Linen Supply Co., 356 N.Y.S.2d 872, 877-78 (N.Y. App. Div. 1974), affd 335 N.E.2d 856 (N.Y. 1975): [I]t has been held time and again that the court is limited to determining only whether a valid arbitration agreement was entered into, and where there is a broad arbitration provision, issues relating to subsequent acts which may effect a cancellation or termination of the prior contract are properly within the arbitrators jurisdiction to decide. Indeed, the District of Columbia federal court has held that where a party alleges that an entire contract was cancelled, such issues are for arbitrators and not for federal courts to decide. Clifton D. Mayhew, Inc. v. Mabro Constr., Inc., 383 F. Supp. 192, 195 (D.D.C. 1974). In short, the Court of Appeals decision warrants review because it conflicts with this Courts Buckeye and Rent-A-Center decisions, and thus stands as an obstacle to the federal substantive law of arbitration as

35 it has been applied in many state and federal lower court cases around the country. III. This Case Presents an Issue of Importance With Serious Implications For Arbitration Agreements In Public Contracts.

The Court of Appeals decision does not exist in a vacuum. It will have significant implications for public contracts with the District, as it retroactively invalidates arbitration provisions in contracts that OCFO officials have executed on the Districts behalf. Beyond the District, its potential impact is even more serious. Many states and the federal government have laws like the Districts PPA that establish procurement practices and authorize administrative officers or boards, or judicial actions, to resolve disputes between government entities and public contractors.19 Under the Court of Appeals rationale, those laws would nullify arbitration provisions in public contracts. This would conflict with the well-established Congressional policy and federal substantive law favoring and promoting arbitration.

See, e.g., 41 U.S.C. 7103, 7104, and 7105; Alaska Stat. 36.30.620(f) and 36.30.685(a) & (b); Ariz. Rev. Stat. 41-2611(A) & (B), and 41-2614; Ark. Code Ann. 19-11-246; 30 Ill. Comp. Stat. 500/20-75; Hawaii Rev. Stat. 103D-703; Kentucky Rev. Stat. 45A.235, 45A.245 and 45A.255; La. Rev. Stat. 39:1673, 39:1685, 39:1691; Md. Code Ann., State Fin. & Proc. 15-211; Mont. Code Ann. 18-1-401; 62 Pa. Cons. Stat. 1724 and 1725(f); R.I. Gen. Laws 37-2-46 and 37-2-49; S.C. Code Ann. 11-35-4230, 11-354320, and 11-35-4410; Tex. Gov't Code 2260.051, 2260.052, and 2260.102; Va. Code Ann. 2.2-4363 and 2.2-4365.

19

36 Moreover, the Court of Appeals decision marks a notable advance from prior decisional law eroding the enforceability of arbitration provisions.20 The District relied heavily on District of Columbia v. Greene, 806 A.2d 216 (D.C. 2002) (per curiam), and the Superior Court and Court of Appeals both cited it in their decisions. In Greene, the District sought to enjoin arbitration in a contract dispute with Verizon. Id. at 218. As in this case, the District argued in Greene that the arbitration provision in its contract was unenforceable under the PPA, because the PPA established the contracting officer and the CAB as the fora for hearing contract disputes. Id. at 220. The Court of Appeals agreed and held that under the PPA, the District could not agree to arbitration. Id. at 220-21. The Court of Appeals further held that the FAA did not preempt the PPA as applied. Id. at 22123.

20

Indeed, arbitration is nothing new to the District. It is frequently required to submit to arbitration and has done so in the past, and has its own statute comparable to the Federal Arbitration Act. See Fairman v. District of Columbia, 934 A.2d 438 (D.C. 2007) (holding District estopped from claiming it was not authorized to agree to arbitration); District of Columbia v. Bailey, 171 U.S. 161 (1898) (standing for the proposition that unless expressly prohibited by statute, a municipality like the District may agree to submit any claim to arbitration); D.C. Code 164401(8) (Districts Revised Uniform Arbitration Act is applicable to person[s], which includes a government, governmental subdivision, agency, or instrumentality; public corporation; or any other legal or commercial entity).

37 Greene is distinguishable from the instant case because it involved contract claims. Id. at 220. By contrast, the claims in this case are statutory and common-law tort claims that, by the Districts own admission, do not arise under or relate to the contract, and therefore would not fall within the jurisdiction of the contracting officer and the CAB. Nevertheless, the Court of Appeals expanded the rationale of Greene to cover this case. In so doing, it went beyond Greene and further eroded the enforceability of arbitration agreements, in contravention of the Congressional policy of promoting and favoring arbitration. This expansion counsels strongly in favor of this Court exercising its discretion to review this case. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted, Ava E. Lias-Booker Counsel of Record Brian A. Kahn Thomas M. Beshere McGuireWoods LLP 7 Saint Paul Street, Suite 1000 Baltimore, MD 21202 (410) 659-4400 alias-booker@mcguirewoods.com February 25, 2014

i APPENDIX TABLE OF CONTENTS Appendix A Decision in the District of Columbia Court of Appeals (November 27, 2013) . . . . . . . . . . App. 1 Appendix B Order Denying Bank of Americas Motion to Dismiss, or in the Alternative, Stay Based on Forum Selection and Arbitration Clauses (December 9, 2009) . . . . . . . . . . App. 66 Appendix C Pertinent Constitutional Provisions, Statutes, and Rules U.S. Const., Art. VI, Clause 2 (Supremacy Clause) . . . . . . App. 121 9 U.S.C. 2 . . . . . . . . . . . . . App. 121 9 U.S.C. 3 . . . . . . . . . . . . . App. 122 D.C. Code 1-204.24a . . . . App. 122 D.C. Code 1-204.24d . . . . App. 124 Former D.C. Code 2-301.04 (repealed April 8, 2011) . . . App. 131 Former D.C. Code 2-308.03 (repealed April 8, 2011) . . . App. 132 D.C. Code. 2-381.02 (formerly codified as D.C. Code 2-308.14) . . . . . . . . . . . . App. 133

ii D.C. Code 2-381.03 (formerly codified as D.C. Code 2-308.15) . . . . . . . . . . . . App. 135 D.C. Appropriations Act 2006, 109 Pub. L. No. 115, 132, 119 Stat. 2396, 2522 (2005) . . . . . . . . App. 144 American Arbitration Association, Commercial Arbitration Rules, Rule R-7 . . . . . . . . . . . . . . . App. 144 Financial Management and Control Order No. 97-15 Chapter 1, Section A.3 . . . . App. 145 Chapter 1, Section B.3 . . . . App. 145 Appendix D Selected Pages from 2000 Bank of America Treasury Services Booklet . . . . . . . . . . . . . . . . . . . App. 147 Appendix E Certified Copy of Corporate Resolutions, executed January 6, 2000 . . . . . . . . . . . . . . . . . . . . . App. 161 Appendix F Authorization and Agreement for T r e a s u r y S e r v i c e s , e x e c ut e d September 25, 2000 . . . . . . . . . App. 162 Appendix G Authorization and Agreement for Treasury Services, executed March 6, 2006 . . . . . . . . . . . . . . . . . . . . . App. 170 Appendix H Selected Pages from 2004 Bank of America Treasury Services Booklet . . . . . . . . . . . . . . . . . . .App. 179

iii Appendix I Selected pages and portions from the District of Columbia Government Contracting Documents related to the Controlled Disbursements Bank Account with Bank of America which include portions of: (i) the November 13, 2005, District of Columbia Office of the Chief Financial Officer CONTRACT, for Contract No.: CFOPD-05-C-083 with Bank of America (App. 206-211); (ii) the June 2002 Bank of America Response to Request for Proposal For Financial Services For OFT Controlled Disbursement Account RFP No. CFOPD-02-R-019, (2002) Contractors Technical Proposal and Cost Proposal) (App. 212-226); (iii) the April 2005 Bank of America Revised RFP Response (2005 Contractors Technical Proposal) (App. 227-239); and (iv) the May 22, 2002 Solicitation, Offer and Award CFOPD-02-R-019 RFP issued by the Office of the District Chief Financial Officer (Districts 2002 Request for Proposals (RFP)) (App. 240-252) . . . . . . . . . . . . . . . . . . App. 206 Appendix J Bank of Americas Motion to Dismiss or, in the Alternative, Stay Based on Forum Selection and Arbitration Clauses, filed January 16, 2009 . . . . . . . . . . . . . . . . . . . . .App. 253

iv Appendix K Selected pages from Bank of Americas Notice of Appeal, filed January 7, 2010 . . . . . . . . . . . . . . . . . . . . .App. 257 Appendix L Selected pages from Bank of Americas brief in the District of Columbia Court of Appeals, filed November 15, 2010 . . . . . . . . .App. 264

App. 1

APPENDIX A DISTRICT OF COLUMBIA COURT OF APPEALS No. 10-CV-78 [Argued October 19, 2011 Decided November 27, 2013] BANK OF AMERICA, N.A., et al., APPELLANTS, v. DISTRICT OF COLUMBIA, APPELLEE. ) ) ) ) ) ) ) )

Appeal from the Superior Court of the District of Columbia (CAB-7763-08) (Hon. Joan Zeldon, Motions Judge)* (Hon. Frank Burgess, Motions Judge)**

Judge Zeldon decided the Motion to Compel Arbitration. Judge Burgess decided the Motion to Stay.

**

App. 2 Ava E. Lias-Booker, with whom Samantha Thompson, Brian A. Kahn, Adrienne J. Lawrence, and Michelle N. Lipkowitz, were on the brief, for appellants. Stacy L. Anderson, Assistant Attorney General, with whom Irvin B. Nathan, Acting Attorney General for the District of Columbia at the time the brief was filed, Todd S. Kim, Solicitor General, and Donna M. Murasky, Deputy Solicitor General, were on the brief, for appellee. Before BLACKBURNE-RIGSBY and THOMPSON, Associate Judges, and WAGNER, Senior Judge. WAGNER, Senior Judge: Appellants, Bank of America, N.A. and Bank of America Corporation (hereinafter collectively referred to as Bank of America or the Bank), appeal from an order of the trial court denying the Banks motion to compel arbitration under the Federal Arbitration Act (FAA) of the District of Columbias claims for damages for losses incurred as the result of a protracted fraudulent scheme perpetrated by the Districts employees and allegedly facilitated by Bank of America. Bank of America argues that the trial court erred in its ruling because all of the Districts claims are within the scope of a contractual agreement that requires arbitration in the state of North Carolina. The Districts position is that there was no valid arbitration agreement, or alternatively, its claims do not fall within the scope of any agreement between the parties. We affirm the decision of the trial court holding that the parties had no valid agreement to arbitrate their dispute in North Carolina or elsewhere and retaining jurisdiction of the Districts claim under the Fraud Claims Act. We remand the case to the trial court for further proceedings consistent

App. 3 with this opinion as it relates to the remaining counts of the Districts amended complaint. I. Procedural Background This action arises out of a fraudulent scheme by a former manager in the Districts Real Property Tax Administration Adjustment Unit in its Office of Tax and Revenue. The District filed a complaint against Bank of America, Walter R. Jones, Jr., Harriette Walters, Jayrece Elaine Turnbull, and unknown Jane and John Does alleging that they participated in a conspiracy that utilized a Controlled Disbursement Account (CDA or CD Account) that the District maintained with Bank of America to process fraudulent tax refund checks. Specifically, the District alleged that Walters, a former District employee, used her knowledge of the Districts property tax refund process to prepare and ensure approval of the fraudulent checks which were given to co-conspirators to deposit or cash through the Bank. According to the complaint, Jones, an assistant branch manager for the Bank, and other unknown bank personnel facilitated the negotiation of the fraudulent checks. As theories of liability, the District asserted: (1) violation of the Uniform Commercial Code (UCC) (D.C. Code 28:3-404 (2001)); (2) violation of UCC 28:3-405; (3) negligence; (4) fraud; (5) breach of fiduciary duty; (6) conversion; (7) violation of the D.C. False Claims Act (FCA) (D.C. Code 2-308.14 (2006 Repl.));1 and (8) negligence in training, hiring and supervising bank personnel. As relief, the District sought repayment of all funds lost totaling $39,212,815.24. Under the False Claims Act, it
1

This provision has been recodified at D.C. Code 2-381.02.

App. 4 sought treble damages of $117,212,815.24, penalties of $10,000 plus costs and attorneys fees. The Bank filed a Motion to Dismiss, or in the Alternative, Stay Based on Forum Selection and Arbitration Clauses, which the trial court treated as a Motion to Compel Arbitration under the Federal Arbitration Act, 9 U.S.C. 1 et seq. In its motion, the Bank asserted that the Districts claims are subject to arbitration pursuant to a clause in its Treasury Service Booklet (TSB) requiring arbitration of disputes related to the account or bank services and a forum selection clause in its Deposit Agreement (DA) requiring any proceeding regarding the CD Account to be brought in North Carolina. Concluding that the parties voluminous filings did not make clear what documents controlled the dispute, the trial court held an evidentiary hearing in order to ascertain whether they had an agreement to arbitrate in North Carolina. Following completion of the hearing proceedings, the trial court denied the Banks motion by written order in which it found that the parties 2005 contract provisions superseded any dispute resolution or forum selection clauses previously agreed upon and that the signatories to any documents executed subsequently lacked authority to bind the District to arbitration in North Carolina. The court retained jurisdiction of the False Claims Act count explaining that the FCA is a part of the Procurement Practices Act of 1985 (PPA), which the parties incorporated into their 2005 agreement, and that actions thereunder are within the Superior Courts exclusive jurisdiction under D.C. Code

App. 5 2-301 et seq.2 The court dismissed the Districts remaining claims, holding that they are within the exclusive jurisdiction of the Districts own contracting officer and the Contract Appeals Board (CAB). The Bank filed a motion to alter or amend the trial courts order and to certify certain rulings to this court for review. The Bank noted this appeal before the trial court (J. Zeldon) denied the motion to alter or amend. The trial court (J. Burgess) granted the Banks motion to stay the proceedings on the FCA claim and stayed the dismissal of the Districts remaining counts. However, the order permitted the District to pursue its contract claims before the Districts Contracting Officer. The Bank filed in this court a Motion to Stay Proceedings, or in the Alternative Enjoin the District Pending Appeal, in which it requested a stay or injunction to prevent the District from initiating proceedings before a contracting officer during the pendency of this appeal. This court denied that motion and ordered the Bank to show cause why the appeal should not be dismissed for lack of jurisdiction as having been taken from a non-final order, citing In re Calomiris, 894 A.2d 408, 408 (D.C. 2006), Hercules & Co. v. Beltway Carpet Serv., Inc., 592 A.2d 1069, 1071 n.6 (D.C. 1991), and D.C. Code 11-721 (d) (2001). Without resolving the jurisdictional question, this court issued an order vacating the Show Cause order, stating that [t]he Supreme Courts decision in Andersen LLP

The Procurement Practices Reform Act of 2010 which came into effect April 8, 2011, repealed these provisions. See D.C. Law 18371, 1201 (a), 58 D.C. Reg. 1185 (Apr. 8, 2011).

App. 6 v. Carlisle, 129 S. Ct. 1896 (2009) may [a]ffect the applicability of Calomiris, 894 A.2d at 410. In that order, this court set a briefing schedule and requested the parties to discuss the opinion in Carlisle in their briefs. For the reasons set forth in part III A., infra, we conclude that this court has jurisdiction of the appeal. II. Factual Background and Trial Courts Decision A. Factual Summary Before addressing the issues, we outline in some detail the factual background essential to an understanding of the parties arguments and our disposition. At least since the 1990s, the District has maintained a Controlled Disbursement Account with Bank of America or its predecessors.3 In July 1999, after Bank of America merged with its most recent predecessor, Nations Bank, the account was maintained in North Carolina. On January 6, 2000, Valerie Holt, then Chief Financial Officer (CFO) for the District, executed a Certified Copy of Corporate Resolutions Opening and Maintaining Deposit Accounts and Services, which designated the CFO, the Deputy CFO/Treasurer, and the Associate Treasurer as persons authorized to execute and sign any application, deposit agreement, signature card and any
3

A CDA is a specialized business service for deposit accounts through which the District of Columbia is notified, at a specific time each business day, of the number and amount of all Districtissued checks that will be presented for payment that day. . . . The service allows the District to transfer to its CDA the exact amount of money necessary to cover the checks presented and to allow idle funds to be invested elsewhere.

App. 7 other documentation required by the Bank to open said accounts.4 That same day, CFO Holt signed a signature card for the CDA and verified the signatures of three others to act under the Corporate Resolution.5 The signature card states that by signing, the signatory agrees that the account is to be governed by the terms and conditions set forth in the Banks Deposit and Disclosures Agreement (Deposit Agreement), including any amendments. The trial court found that all relevant Deposit Agreements specify North Carolina as the location for resolution of disputes and give the Bank the right unilaterally to amend its own Deposit Agreement. According to evidence at the hearing, completion of a signature card was required to add signatories to the account. Between 2000 and November 13, 2005, a number of District officials signed signature cards to add or remove names from the account. These included CFO Dr. Natwar Gandhi, successor to CFO Holt, Associate Treasurer Lasana
4

The Corporate Resolution also authorized the named individuals to do the following: to enter any agreements with the Bank for the provision by the Bank of various Treasury Management services to [the District of Columbia] as such officer or employee may determine, in his or her sole discretion, and to sign any and all documents and take all actions required by the Bank relative to such Treasury Management services . . . and that any such Treasury Management agreement(s) shall remain in full force and effect until written notice to terminate given in accordance with the terms of any such agreement shall have been received by the bank. . . .

In addition the CFO Holt, Dr. William Hall, Deputy CFO and Treasurer, and two Associate Treasurers were identified as persons authorized to act under the Corporate Resolution.

App. 8 Mack, and Interim Associate Treasurer Alcindor Rosier. One of the signature cards signed by Dr. Gandhi stated that by signing, he agree[d] . . . [t]o be governed by the terms and conditions set forth in the Deposit Agreement. Dr. Gandhi, Mr. Mack, and Mr. Rosier testified that they signed signature cards only to open an account or to add or remove signatories. On September 25, 2000, Acting Deputy CFO/Treasurer, John Robinson, and Interim Associate Treasurer and Bank Manager, Alcindor Rosier, executed an Authorization and Agreement for Treasury Services (Authorization) agreeing to be bound by the Treasury Booklet. The trial court found that the 2000 Corporate Resolution authorized Rosier and Robinson to enter an agreement for treasury services. On September 25, 2000, Associate Treasurer Lasana Mack signed a certification attesting to the authenticity of the signatures of Rosier and Robinson and to his own authority to execute the certification. The certification form states that [i]f the client is a governmental entity, the entitys counsel must sign this Certification. Mr. Mack was not the Districts counsel or a lawyer. A clause in the referenced Treasury Booklet provides for services described therein to be arbitrated in accordance with the United States Arbitration Act . . . under the Commercial Arbitration Rules of the American Arbitration Association (AAA Rules). The trial court found that although the Authorization states in small print that the Client received a copy of the Authorization and Agreement for Treasury Services, there was no evidence that the Booklet was provided to Robinson and Rosier when they signed signature cards.

App. 9 In 2002, the Office of Contracting and Procurement for the Office of the Chief Financial Officer issued a request for proposals (RFP) for Controlled Disbursement Account Services. The RFP required bidders to include in their proposals Paragraph 8, Dispute Resolution, which provides: [i]f a dispute arises under or relates to the contract, a claim by the Contractor shall be made in writing and submitted to the Contracting Officer for a written decision. A claim by the District against the Contractor shall be subject to written decision by the Contracting Officer.6 The RFP stated that the Contracting Officer was the only official authorized to contractually bind the District and that the Contract Administrator had the responsibility of ensuring that the work conforms to the requirements of the contract. The RFP also required that the Procurement Practices Act of 1985 (PPA) (D.C. Code 2-301.01 et seq. (2001)) (PPA) be incorporated by reference into the contract. After a pre-bid conference attended by representatives from several banks, Bank of America
6

The RFP defines claim as a written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or related to the contract. A claim arising under a contract, unlike a claim relating to that contract, is a claim that can be resolved under a contract clause that provides for the relief sought by the Claimant.

App. 10 submitted a Technical Proposal and Cost Proposal for the CDA contract. The Banks Cost Proposal included the required clauses described in the RFP. The Banks Technical Proposal included a Table of Contents that referenced an Agreements/Documentation section listing the following documents: (1) Terms and Conditions for Treasury Services; (2) Signature Card & Resolution; (3) Wire Transfer Form; (4) Automated Investment Service Agreement; (5) Bank of America Direct Profile; and (6) Electronic Pay Profile. It did not include a copy of the Treasury Services Terms and Conditions booklet. Following a page entitled Agreements/Documentation, there were several blank forms, including Authorization and Agreement for Treasury Services, Authorization and Agreement Certification, Treasury Services Delegation of Authority, Business Signature Card, and a resolution for unincorporated associations, which, the Bank acknowledges, was included in error. A representative for the Bank testified that he intended that these documents become a part of the contract. The parties did not sign a contract at that time. On March 31, 2005, the Office of Contract Procurement issued an amendment to the original 2002 RFP and requested that the banks that had responded previously provide their Best and Final Offers for the CDA. A Bank of America representative, Mr. Bianchi, testified that he was told to update only the Banks portion of the response; therefore, he updated the price proposal and included the same Agreements/ Documentation section the Bank submitted previously. He also testified that he provided a copy of the Treasury Service Booklet in a separate packet with the intention that it would constitute additional terms of

App. 11 the contract. Mr. Bianchi signed the contract on behalf of the Bank, and on November 13, 2005, Ms. Angela Long Jiggets-Bazzi, a Contract Specialist, who worked in the Office of the Chief Financial Office, signed the contract. The 2005 contract includes the following language: [t]he intent of this contract is for a contractor to manage the disbursement account in accordance with the published Request for Proposal. This contract also contains a merger clause which reads: [t]his contract, including specifically incorporated documents, constitutes the total and entire agreement of the parties. All previous discussions, writings and agreements are merged herein. After execution of the 2005 contract, District employees signed a number of signature cards and authorizations to remove and add new signatories to the CDA. On March 6, 2006, after becoming the Districts OFT Treasurer, Mr. Mack signed an Authorization and Agreement for Treasury Services that states, in part, that the signer has received the Treasury Services Booklet and agrees to adhere to its terms. Mr. Mack testified, however, that he thought he was simply opening two bank accounts and that he did not intend to modify the 2005 contract between the Bank and the District. That same day, the Chief of Staff for the Office of Finance and Treasury, Ulysses Glen, Jr., signed a form certifying that Mr. Macks signature was the true signature of a person authorized to execute the form on behalf of the Client. This certification form also states that for a governmental entity, its counsel, or any other individual as permitted by the entitys organizational documents should sign. The trial court found that Mr.

App. 12 Glen was not a lawyer and that no evidence was introduced to demonstrate his authority to sign the document on behalf of the District. On April 17, 2006, Mr. Mack signed a signature card naming himself and two others as authorized signatories for various accounts with the Bank, including the CDA. This signature card stated that the signer was accepting the Authorization in the first part of the document that stated [t]he deposit agreement we give you is part of your agreement with us regarding use of your account and tells you the current terms of our deposit accounts. Mr. Mack also testified that he did not intend to modify the parties contract by signing the signature cards. The District exercised its option to extend the 2005 contract for oneyear periods in October 2006, November 2007, and November 2008. B. The Trial Courts Ruling The trial court found that the parties 2005 written contract governing dispute resolution and authority to modify the contract superseded (1) any dispute resolution or forum selection clauses the Bank claims was previously agreed upon and (2) and any provision . . . which would allow other District officials to agree to arbitration in North Carolina (or elsewhere).7 Thus, the court could not find, as the Bank urged, that the 2006 Authorization and Agreement for Treasury

The trial court also found that the claims involved in the litigation fall within the scope of the arbitration and forum selection provisions set out in the Treasury Services Booklet and Deposit Agreement upon which the Bank relied.

App. 13 Service signed by the Deputy CFO/Treasurer was validly executed or that any signature cards signed after the 2005 contract bound the District to the forum selection provision in the 2008 Deposit Agreement. The trial court declined to dismiss the claim asserted under the False Claims Act, reasoning that the PPA, which is incorporated into the 2005 contract, makes the Superior Court the appropriate forum for claims under that Act. As an additional legal basis for concluding that the parties had no agreement to arbitrate in North Carolina, the trial court held that the PPA withheld from District officials the authority to agree to the arbitration and forum selection clauses in the documents relied upon by the Bank. III. Preliminary Issues A. Jurisdiction The question of this courts jurisdiction was raised initially in an order to show cause why the appeal should not be dismissed as having been taken from a non-final order, which cited Calomiris, supra, 894 A.2d at 408, and Hercules & Co., supra, 592 A.2d at 1069. Subsequently, the court vacated the order to show cause, stating that the Supreme courts decision in Andersen LLP, supra, 129 S. Ct. at 1896 may [a]ffect the applicability of Calomiris, 894 A.2d at 410, setting a briefing schedule, and directing the parties to discuss Andersen in their briefs. Appellant argues that Calomiris is not applicable to the present case and that Andersen and our case law support immediate appellate jurisdiction over appeals from denials of motions to compel arbitration. The District does not contend otherwise. Nevertheless, this court must be satisfied that it has jurisdiction. Therefore, we consider

App. 14 the jurisdictional questions raised by the motions panel. The Bank argues that this court has jurisdiction because the appeal is from an order denying its motion to compel arbitration based on a written agreement that it contends governs the parties contractual relationship. Citing Andersen, supra, 129 S. Ct. at 1896, the Bank contends that such orders have been held to be final and immediately appealable under 9 U.S.C. 16 (a)(1)(A) of the Federal Arbitration Act and D.C. Code 11-721 (a). In Andersen, the Supreme Court considered whether appellate courts have jurisdiction under 16 (a) [of the FAA] to review denials of stays by litigants who were not parties to the relevant arbitration agreement, and whether 3 can ever mandate a stay in such circumstances.8 Andersen, 129 S. Ct. at 1899. The District Court had denied petitioners demand for arbitration and request for a stay, and the Sixth Circuit dismissed their

Section 16 (a)(1)(A) of the FAA provides that [a]n appeal may be taken from . . . an order . . . refusing a stay of any action under Section 3 of this title. 9 U.S.C. 16 (a)(1)(A) (2006). Section 3 provides, in pertinent part: If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement. 9 U.S.C. 3 (2006).

App. 15 interlocutory appeal for lack of jurisdiction. Id. at 1900. The Supreme Court reversed, holding that the Sixth Circuit had jurisdiction to review the denial of the 3 stay and that a non-party to the arbitration agreement may invoke 3 if the relevant state contract law permits him to enforce it. Id. at 1903. Pertinent to our jurisdictional question, the Supreme Court stated in Andersen: Ordinarily, courts of appeals have jurisdiction only over final decisions of district courts. 28 U.S.C. 1291. The FAA, however, makes an exception to that finality requirement, providing that an appeal may be taken from . . . an order . . . refusing a stay of any action under section 3 of this title. 9 U.S.C. 16 (a)(1)(A). By that provisions clear and unambiguous terms, any litigant who asks for a stay under 3 is entitled to an immediate appeal from denial of that motion regardless of whether the litigant is in fact eligible for a stay. . . . . . . Jurisdiction over the appeal, . . . must be determined by focusing upon the category of order appealed from, rather than upon the strength of the grounds for reversing the order. Behrens v. Pelletier, 516 U.S. 299, 311, 116 S. Ct. 834, 133 L.Ed. 2d 773 (1996). The jurisdictional statute here unambiguously makes the underlying merits irrelevant for even utter frivolousness of the underlying request for a 3 stay cannot turn a denial into something other than an order . . . refusing a stay of any action under section 3. 9 U.S.C. 16 (a). Id. at 1900-01.

App. 16 In the present case, the Bank demanded arbitration of the Districts claims under the FAA as provided for in written documents that it contends govern the parties relationship. Treating the Banks request as a motion to compel arbitration, the trial court denied the motion after an evidentiary hearing, concluding that the controlling contract did not provide for arbitration. The trial court concluded, inter alia, that a subsequent agreement superseded any prior agreement providing for arbitration and that later agreements were ineffectual because the signatories to them lacked authority to bind the District. With one exception, it also denied a stay of all claims, thereby allowing the unstayed claims to proceed in another forum (i.e., before the Contracting Officer and the Contract Appeals Board.)9 The Bank argues that, under Andersen, it is entitled to appellate review from the denial of its motion to compel arbitration and for a stay. Andersen supports the Banks argument. Here, the Bank relied upon a written agreement containing a provision for arbitration under the FAA, albeit one that the trial court found, after an evidentiary hearing, had been superseded by subsequent agreements. Whether the Bank can prevail ultimately on its argument that the agreement containing the arbitration provision controls goes to the merits of the controversy rather than the appellate courts jurisdiction to adjudicate it. As the Supreme Court stated in Andersen, jurisdiction over the appeal is determined by the category of the order

The trial court retained jurisdiction of only the fraud claim and stayed the action as to that claim.

App. 17 appealed from rather than the strength of the grounds for overturning it. Andersen, supra, 129 U.S. at 1900. Thus, an appeal from the denial of the Banks motion to compel arbitration and stay the courts denial of the motion would be immediately appealable under the FAA. See id. at 1900-01. Moreover, case precedents from this court also support our jurisdiction to review the denial of the Banks motion to compel arbitration. This court has exercised jurisdiction of an appeal from an order denying a motion to compel arbitration, concluding that it is a final order, appealable pursuant to D.C. Code 11-721 (a)(1).10 See, e.g., 2200 M Street LLC v. . Mackell, 940 A.2d 143, 147 & 147 n.2 (D.C. 2007) (citing D.C. Code 16-4317 (a)(1)11 and Umana v.
D.C. Code 11-721 (a)(1) (conferring jurisdiction upon the D.C. Court of Appeals from all final orders and judgments of the Superior Court of the District of Columbia). D.C. Code 16-4317 (a)(1) then provided that for purposes of appeal, an order denying an application to compel or stay arbitration was a final order. This section was a part of the Uniform Arbitration Act, D.C. Code 16-4301, -4319 (DCUAA) that was repealed effective July 1, 2009. 55 DCR 1847 (Feb. 27, 2008). The Revised Uniform Act also provides that an appeal may be taken from [a]n order denying or granting a motion to compel arbitration. D.C. Code 16-4427 (a)(1) (2001). This court has not resolved the question of the validity of the apparent jurisdictional grant by the Council to this court under the DCUAA or the Revised Uniform Act. See Masurovsky v. Green, 687 A.2d 198, 201, n.1 (D.C. 1996) (declining to decide the issue because of jurisdiction to review an interlocutory order under D.C. Code 11-721 (a)(2)(A)); Umana, supra, 699 A.2d at 722 (holding that the DCUAA does not attempt to confer jurisdiction upon this court under the circumstances of this case, and therefore, it need not decide
11 10

App. 18 Swindler & Berlin, 669 A.2d 717, 723 (D.C. 2005)) (other citation omitted). This court has also held that it had jurisdiction over the appeal of an interlocutory order denying a motion to compel arbitration under D.C. Code 11-721 (a)(2)(A) because the order frustrate[d] arbitration. Mausurovsky, supra note 11, 687 A.2d at 201 n.1 (quoting Brandon v. Hines, 439 A.2d 496, 506-07 (D.C. 1981) and citing Umana, supra, 669 A.2d at 721 & n.11)). In Brandon, we concluded that an order denying a motion to confirm an arbitration award and requiring the parties to go to trial is an appealable interlocutory order dissolving an injunction under D.C. Code 11-721 (a)(2)(A) (1973).12 Brandon, 439 A.2d at 500. In reaching this conclusion, this court found persuasive the Supreme Courts opinion in Carson v. Am. Brands, Inc., 450 U.S. 79, 90 (1981), interpreting the federal interlocutory appeals statute that has language virtually identical to our local statute.13 Brandon, 439 A.2d at 509. This court observed in Brandon that the trial courts order, if entered by a federal court, would have been an appealable interlocutory order dissolving an injunction under 28 U.S.C. 1292 (a)(1). Id. Thus, we

whether D.C. Code 16-4317 is consistent with the Home Rule Act). D.C. Code 11-721 (a)(2)(A) confers jurisdiction upon the District of Columbia Court of Appeals from interlocutory orders of the Superior Court granting, continuing, modifying, refusing, or dissolving or refusing to dissolve or modify injunctions. This section remains unchanged in the 2001 edition of the Code. The federal appellate jurisdictional statute referenced was 28 U.S.C. 1292 (a)(1) (1976).
13 12

App. 19 concluded that denials but not grants of stays of litigation pending arbitration are appealable interlocutory orders, since only orders that frustrate (in contrast with facilitate) arbitration impose a sufficiently serious injury to justify an immediate appeal. Id. at 506-07.14 It was this courts decision in Calomiris, supra, that prompted the motions panel to raise the jurisdictional question. In Calomiris, this court dismissed for lack of jurisdiction an appeal from an order denying summary judgment to one of four trustees who argued that the trust instrument required that disputes over administration of the trust be resolved by arbitration. Calomiris, 894 A.2d at 408, 411. Appellant argued that this court had jurisdiction because the order appealed from was either (1) a final appealable order under D.C. Code 16-4317 (i.e., an order denying a motion to compel arbitration), or (2) an appealable interlocutory order under Brandon, supra, 439 A.2d at 507 (i.e., one that frustrates the arbitration process). Calomiris, 894 A.2d at 408-09. In Calomiris, we rejected the statutory argument because the arbitration provision at issue was established by Will, and not by contract as required for applicability of the statute.15 Id. at 409-10.

Under 16-4427 of the current Revised Arbitration Act, [a]n appeal may be taken from . . . An order denying or granting a motion to compel arbitration (italics added). D.C. Code 16-4317 (a)(1) provided that for purposes of appeal, certain orders shall be deemed final, including [a]n order denying an application to compel arbitration made under section 16-4302. Proceedings to compel or stay arbitration under 16-4302 required a showing of an agreement as described in 16-4301. (See note 9,
15

14

App. 20 Thus, this court held in Calomiris that the will that contained the arbitration provision was not a contract within the meaning of the Districts Uniform Arbitration Act. Id. at 410. Similarly, the court determined that the interlocutory order rule of Brandon v. Hines presupposed that the parties agreed by contract to arbitration, and therefore the rule was inapplicable to the facts presented. Calomiris, 894 A.2d at 410. The condition precedent found lacking in Calomiris is present in this case. Here, the Bank does rely upon a written contract containing an arbitration provision. Although the trial court found that this contract was superseded by another agreement between the parties that does not provide for arbitration, such a merits determination cannot foreclose appellate review of the trial courts decision. See Andersen, supra, 129 S. Ct. at 1900. Otherwise, the trial courts determination that the contract with the arbitration clause was superseded and does not govern the dispute would effectively foreclose appellate review. Nothing in Calomiris requires such a result. For all of these reasons, we are satisfied that this court has jurisdiction of this appeal. See Mackell, supra, 940 A.2d at 147 n.2 (holding that denial of a motion to compel arbitration is a final appealable order allowing this court to exercise jurisdiction pursuant to D.C. Code 11-721); see also Andersen, supra, 129 S. Ct. at 1900-01 (holding that the FAA provides for an immediate appeal of an order

supra). Calomiris, supra, 894 A.2d at 409. The court concluded that a Will establishing a trust is not a written agreement or contract. Id.

App. 21 refusing a stay under the Act as determined by the category of the order appealed from rather than the strength of the grounds for reversal). B. Forum Challenge The Bank argues that the trial court erred in resolving the Districts objections to the existence, scope or validity of the parties arbitration agreement. It contends that, under applicable law, these issues are for the arbitrator; therefore, the trial court erred in denying its motion to compel arbitration. The District responds that its challenges to the arbitration clause itself and to the validity of the post-2005 contracts based on whether the person lacked authority to bind the District are properly resolved by the court.16

The District also argues that the Bank is judicially estopped from contending in this court that it was for the arbitrator to decide the validity and scope of the arbitration agreement because it affirmatively asserted a contrary position in the trial court. The Bank responds that the judicial estoppel rule does not apply because its position on appeal is not clearly inconsistent with the one it maintained in the trial court. The doctrine of judicial estoppel precludes a party from taking one position on an issue in the trial court and the opposite position on appeal. Fairman v. District of Columbia, 934 A.2d 438, 443 (D.C. 2007) (citations omitted). It is an equitable doctrine intended to protect the judicial process from improper use. New Hampshire v. Maine, 532 U.S. 742, 751-52 (2001) (citations omitted). Factors required for application of the doctrine include: (1) a clear inconsistency between the partys earlier position and later one; (2) success in asserting the prior position thereby creating the perception that one of the courts was misled; and (3) the realization of an unfair advantage by one party or the imposition of an unfair detriment to the opposing party. Id. at 752 (citations omitted).

16

App. 22 We start with the basic principle that arbitration is simply a matter of contract between the parties; it is a way to resolve those disputes but only those disputes that the parties have agreed to submit to arbitration. First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943 (1995); accord, Sandvik AB v. Advent Intl. Corp., 220 F.3d 99, 105 (3d Cir. 2000) (citation omitted) (noting that a party cannot be required to submit to arbitration when he has not agreed to do so because arbitration is a matter of contract). Generally, in deciding whether the parties agreed to arbitration, the courts apply ordinary state-law contract principles. First Options, 514 U.S. at 944 (citations omitted). This general rule is subject to qualification when deciding whether the parties have agreed to have the arbitrator decide the question of arbitrability. Id. With respect to this issue, the Supreme Court has admonished that [c]ourts should not assume that the parties agreed to arbitrate arbitrability unless there is clea[r] and unmistakabl[e] evidence that they did so. Id. (quoting

The record supports the Banks claim that the position it took in the trial court is not clearly inconsistent with the position it asserts on appeal. First, the District concedes that the Bank maintained in the trial court, as it does on appeal, that a challenge to the validity of the contract as a whole was for the arbitrator. Second, the record shows that the Bank argued that the arbitrator, not the court, had the authority to determine whether the Districts claims are arbitrable. It contended that all the Districts claims are subject to arbitration and therefore, the trial court should dismiss them or stay the action and direct the parties to proceed to arbitration. Finally, as the Bank points out, it was not successful in advancing these positions in the trial court. For these reasons, we agree that the judicial estoppel rule is not applicable here.

App. 23 AT & T Technologies, Inc. v. Communications Workers, 475 U.S. 643, 649 (1986)). Challenges to arbitration agreements may be directed to the validity of the arbitration clause itself or to the contract as a whole. Buckeye Check Cashing v. Cardegna, 546 U.S. 440, 444 (2006). Guided by 4 of the FAA, the Supreme Court has held that a challenge to the making of the arbitration agreement itself is properly resolved by court, while a challenge to the validity of the contract as a whole is for the arbitrator.17 Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 402 (1967) (holding that it is for the federal court to adjudicate a claim of fraud in the inducement of the arbitration clause itself, but not claims of fraud in the inducement of the contract as a whole); Keeton v. Wells Fargo Corp., 987 A.2d 1118, 1122 (D.C. 2010) (holding that a claim that the arbitration clause is unconscionable disputes its validity and is for the court, not the arbitrator, to decide). More recently, in Buckeye, the Supreme Court summarized these principles, as extracted from its

17

Section 4 of the FAA provides in pertinent part: A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court . . . for an order directing that such arbitration proceed in a manner provided for in such agreement . . . . [U]pon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement . . . .

App. 24 precedents, that are pertinent to the issue presented here. First, as a matter of substantive federal arbitration law, an arbitration provision is severable from the remainder of the contract. Second, unless the challenge is to the arbitration clause itself, the issue of the contracts validity is considered by the arbitrator in the first instance. Third, this arbitration law applies in state as well as federal courts. Buckeye, 546 U.S. at 445-46 (citing Prima Paint, 388 U.S. at 403 and 404 and Southland Corp. v. Keating, 465 U.S. 1 (1984))18 (emphasis added). With these principles in mind, we review the parties respective arguments. The Bank asserts that the arbitration clause in the Treasury Booklet that incorporates by reference the AAA Commercial Arbitration Rules requires the parties to submit the arbitrability question itself to arbitration. Specifically, the Bank cites Rule R-7 that provides: (a) The arbitrator shall have the power to rule on his or her own jurisdiction, including any
In Southland, supra, the Supreme Court held that the FAA created a body of federal substantive law applicable in state and federal courts, and it rejected the notion that, even for state law claims in state court, state-law could bar enforcement of 2 of the FAA. 465 U.S. at 10-14. Section 2 provides that a written provision in a contract to settle or submit to arbitration a controversy arising out of it shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. 9 U.S.C. 2.
18

App. 25 objections with respect to the existence, scope or validity of the arbitration agreement. (b) The arbitrator shall have the power to determine the existence or validity of a contract of which an arbitration clause forms a part. Such arbitration clause shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitrator that the contract is null and void shall not for that reason alone render invalid the arbitration clause. Commercial Arbitration Rule R-7. The Bank argues that incorporation of these rules into the contract show clearly and unmistakably that the parties intended for the arbitrator to decide the issue of arbitrability. See First Options, supra, 514 U.S. at 944 (requiring that the parties intention for the arbitrator to decide arbitrability be shown clearly and unmistakably). In support of its position, the Bank relies primarily upon the Supreme Courts decision in Rent-A-Center, West, Inc. v. Jackson, 130 S. Ct. 2772 (2010). This case does not support the Banks position that the issue of arbitrability is for the arbitrator. The issue in Rent-A-Center was whether under the FAA, a district court may decide a challenge to a contract as unconscionable where the agreement expressly delegated that authority to the arbitrator. Rent-A-Center, supra, 130 S. Ct. at 2775. Respondent Jackson had sued his former employer, Rent-A-Center, for discrimination, but as a condition of employment, he had signed an agreement that precluded him from pursuing his claims in court. Id. at 2775. The agreement gave the arbitrator the exclusive authority to resolve any dispute concerning the enforceability of

App. 26 the agreement.19 Id. The District Court granted Rent-A Centers motion to compel arbitration, but a divided panel of the Ninth Circuit reversed in part, holding that the threshold question of unconscionability is for the court. Id. (quoting Jackson v. Rent-A-Center West, Inc., 581 F.3d 912, 917 (9th Cir. 2009)). The Supreme Court reversed, holding that, absent a specific challenge to the arbitration provision itself, the court must treat this delegation provision as valid under 2 of the FAA and leave the challenge to the validity of the agreement as a whole to the arbitrator.20 Id. at 2779. Thus, RentA-Center suggests a different outcome had petitioner preserved a specific challenge to the provision delegating arbitrability to the arbitrator. See id. at 2779-80; see also Prima Paint, supra, 388 U.S. at 40304; Keeton, supra, 987 A.2d at 1122. Unlike petitioner in Rent-A-Center, the District directs one of its challenges to the validity of the arbitration clause itself. The District argues that it never entered an agreement to arbitrate any contractrelated dispute because no authorized agent for the District had authority to sign such an agreement. Therefore, the Districts reliance upon Rent-A-Center is
The agreement provided that [t]he Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Agreement including, but not limited to any claim that all of any part of the Agreement is void or voidable Rent-A-Center, supra, 130 S. Ct. at 2775.
20 19

Petitioner challenged specifically the delegation provision for the first time in the Supreme Court, and therefore, the Court would not consider it. Rent-A-Center, supra, 130 S. Ct. at 2781.

App. 27 well-placed. In Rent-A-Center, supra, the Supreme Court stated that where a party challenges the agreement to arbitrate at issue under 2 of the FAA, then the court must decide the issue. Id. at 2778. Many appellate courts, including this court, have held that it is for the court, rather than an arbitrator, to decide the validity of the arbitration clause. See Keeton, supra, 987 A.2d at 1122 (citing Hercules & Co. v. Shama Rest. Corp., 566 A.2d 31, 39 (D.C. 1989); Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1263-64 (9th Cir. 2006) (en banc); and Burden v. Check Into Cash of Ky. LLC, 267 F.3d 483, 491 (6th Cir. 2001)) (holding that it was for the court to decide the validity of an arbitration clause itself in a form contract.). Likewise, in the present case, it was for the court to determine whether the District, through authorized agents, ever agreed to be bound by the arbitration provision. Unless the District agreed to arbitration, it cannot be forced to have its dispute, including questions of arbitrability, heard in a private forum. Therefore, the trial court properly considered in the first instance the Districts challenge to the arbitration provision under the circumstances presented here. The Bank also argues that, insofar as the Districts position is that the agreement containing the arbitration provision is superseded by subsequent agreements, its challenge is to the contract as a whole, and therefore, must be resolved by the arbitrator. It contends that to the extent that the trial court relied upon the merger clause in the 2005 contract to invalidate the 2000 Corporate Resolution authorizing various District employees to act on its behalf, it impermissibly operates to invalidate the underlying Treasury Booklet and Deposit Agreement as a whole

App. 28 and, therefore, the issue of contract validity should have been submitted to arbitration. The District responds that because the validity of the post-2005 contracts that the Bank alleges the District entered turns on whether the person who signed lacked authority to bind the District, resolution by the court is appropriate. For this argument, the Bank relies upon cases holding that challenges to the validity of the contract as a whole are for the arbitrator to decide. These include: Buckeye, supra, 546 U.S. at 449 (reaffirming that in both federal and state courts, a challenge to the validity of the contract as a whole, and not specifically to the arbitration clause, must go to the arbitrator.); Rent-A-Center, supra, 130 S. Ct. at 2779 (requiring for court intervention that the challenge be directed to the agreement to arbitrate itself and leaving the challenge to the agreement as a whole to the arbitrator); Prima Paint Corp., supra, 388 U.S. at 40304 (challenges to the arbitration agreement itself go to the court, while challenges to the entire contract of which arbitration is a part are for the arbitrator); see also Menna v. Plymouth Rock Assurance Corp., 987 A.2d 458, 465 n.30 (D.C. 2010) (noting that the validity of the contract with an arbitration clause is for the arbitrator unless the challenge is directed specifically to the validity of the arbitration clause itself under the Districts Revised Uniform Arbitration Act).21 The Bank contends that resisting arbitration on the ground that the agreement in which the arbitration provision is found is superseded by later agreements is

21

D.C. Code 16-4401 to -4432 (Supp. 2009).

App. 29 tantamount to contesting the contract as whole, and thus, the principle from the cases it cites applies to require consideration by the arbitrator. The District acknowledges the general principles extracted from these cases. However, it contends that where the issue turns on whether the person who signed the contract lacked authority to commit the principal, judicial review is appropriate, a point referenced in Buckeye, supra, which the District cites. In Buckeye, the Supreme Court considered whether a court or an arbitrator should decide the claim that the contract containing an arbitration provision was void because it violated state lending and consumerprotection laws. Buckeye, 546 U.S. at 442. Reversing the Florida Supreme Court, the Court held that this challenge to the validity of the contract as a whole was for the arbitrator. Id. at 446. While reaffirming this general principle and finding it to be applicable in Buckeye, the Supreme Court also stated that [o]ur opinion . . . does not speak to the issue decided in the cases . . . which hold that it is for the courts to decide whether the alleged obligor ever signed the contract, . . . [or] whether the signor lacked authority to commit the alleged principal, Sandvik AB v. Advent Intl Corp., 220 F.3d 99 (C.A. 3 2000);22 Sphere Drake Ins. Ltd.

In Sandvik, the Third Circuit affirmed the District Courts denial of a motion to compel arbitration where the other party claimed that the agent who signed the agreement lacked authority to sign it and so notified Sandvik. Sandvik, supra, 220 F.3d at 101. The court held that when the very existence of the agreement was

22

App. 30 v. All Am. Ins. Co., 256 F.3d 587 (C.A. 7 2001))23 .... Buckeye, 546 U.S. at 444 n.1. This is the essence of the Districts challenge here. It contends that it never agreed to arbitration because its 2005 contract did not provide for it and none of its employees were authorized to bind the District to arbitration. Thus, we conclude that the trial court was the proper forum in which to determine whether the District, through its duly authorized agent, ever agreed to arbitration. IV. Merits Analysis A. Standard of Review and Generally Applicable Legal Principles The court reviews de novo an order denying a motion to compel arbitration. Fleetwood Enter. Inc. v. Gaskamp, 280 F.3d 1069, 1073 (5th Cir. 2002) (citing Webb v. Investacorp, Inc., 89 F.3d 252, 257 (5th Cir.

disputed, the district court properly refused to order arbitration until it resolved the threshold question of whether the arbitration agreement exists. Id. at 111. In Sphere Drake, the Seventh Circuit held that whether a broker had authority to bind Sphere Drake on reinsurance contracts containing an arbitration provision was appropriate for resolution by the court. Sphere Drake, supra, 256 F.3d at 592. The court distinguished the Supreme Courts decision in Prima Paint in which the Supreme Court held that it was for the arbitrator to resolve a claim of fraud in the inducement of the contract. Id. at 590. It noted that in Prima Paint, the parties actually reached an agreement, while in Sphere Drake, whether there ever was an agreement was the issue, and arbitration is contractual. Id. at 59091.
23

App. 31 1996)); see also Mausurovsky, supra note 11, 687 A.2d at 202 (citation omitted) (reviewing denial of a motion to compel arbitration under the de novo standard). When the trial court sits as the trier of fact, we review its factual findings under the clearly erroneous standard. Psaromatis v. English Holdings, I, L.L.C., 944 A.2d 472, 481 (D.C. 2008) (citations omitted). We accord the trial courts factual findings considerable deference, and we will not reverse them unless plainly wrong or without evidentiary support. Id. (citing D.C. Code 17-305 (a) (2001)) (providing that for non-jury cases, the judgment may not be set aside except for errors of law unless it appears that the judgment is plainly wrong or without evidence to support it.). Thus, when the facts lend themselves to more than one interpretation, this court defers to the trial courts judgment. Davis v. United States, 564 A.2d 31, 35 (D.C. 1989) (en banc) (citations omitted). This court reviews the trial courts legal conclusions de novo. Chibs v. Fisher, 960 A.2d 588, 589 (D.C. 2008) (citing D.C. Code 17-305 (2001)). In reviewing a decision to compel arbitration under the Federal Arbitration Act, we consider first whether the parties had an agreement to arbitrate the dispute. Fleetwood Enter., supra, 280 F.3d at 1073 (citing Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 62 (1985)) (citation omitted). We make this determination based on ordinary state-law contract principles. Id. (citing First Options of Chicago, supra). The FAA does not require parties to arbitrate a dispute unless they have agreed to do so. Volt Info. Sciences, Inc. v. Bd. of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 478 (1989). If it is determined that the parties had a valid agreement to

App. 32 arbitrate, then we consider next whether the parties dispute falls within the scope of their agreement. Fleetwood Enter., 280 F.3d at 1073 (citing Webb v. Investacorp, 89 F.3d 252, 258 (5th Cir. 1996)). The Bank argues that, in performing our de novo review, we must consider the national policy favoring arbitration. However, as the District points out, th[e] federal policy favoring arbitration does not apply to the determination of whether there is a valid agreement to arbitrate between the parties; instead [o]rdinary contract principles determine who is bound. Fleetwood Enter., supra, 280 F.3d at 1073 (quoting Daisy Mfg. Co., Inc. v. NCR Corp., 29 F.3d 389, 392 (8th Cir. 1994)) (other citation omitted); see also Granite Rock Co. v. Intl Bd. of Teamsters, 130 S. Ct. 2847, 2859-60 (2010) (holding the presumption in favor of arbitration applicable only where it reflects, and derives its legitimacy from, a judicial conclusion that arbitration of a particular dispute is what the parties intended because their express agreement to arbitrate . . . [is] best construed to encompass the dispute.); accord, Masurovsky, supra note 11, 687 A.2d at 205. In Masurovsky, this court rejected an argument similar to the Banks argument here, concluding that the initial determination whether a valid arbitration agreement exists must be determined apart from the presumption [in favor of arbitration.] Id. In reaching this conclusion, we relied upon the Supreme Courts reiteration of the principle that in deciding whether parties have agreed to arbitrate, courts should generally apply state law contract principles and its omission of any suggestion that these principles should be superseded by the federal presumption. Id. (citing First Options of Chicago, supra, 514 U.S. at 938).

App. 33 Consistent with these established principles, we conclude here that the presumption in favor of arbitration attaches only after the court finds initially that a valid agreement to arbitrate exists. Id. With these principles in mind, we turn to consideration of whether the parties agreed to arbitrate the dispute. B. Contract Issues The Bank argues that it had a contractual agreement with the District to arbitrate claims in North Carolina. It contends that officials in the Office of the Chief Financial Officer (OCFO) agreed to the terms set forth in its Treasury Services Booklet which included a provision for arbitrating disputes related to the Controlled Disbursement Account. On appeal, the District argues, as it did in the trial court, that there was no agreement to arbitrate contract or fraud claims because OCFO employees lacked actual authority to enter such agreements by reason of provisions in the PPA. The trial court agreed with the Districts position, ruling that at the times relevant to the controversy, OCFO officials lacked the authority under the PPA to agree to arbitration in North Carolina. Further, the trial court concluded that the 2005 contract incorporating the PPA evidenced the parties intent to adhere to the PPA in its dealings with the Bank. The court also found that the 2005 contract provisions governing dispute resolution and authority to modify the contract superseded any dispute resolution or forum selection clauses previously agreed upon by the parties. The Bank challenges each of these rulings.

App. 34 1. Scope of Authority of OCFO Employees Contrary to the trial courts ruling and the Districts position, the Bank argues that the OCFO was authorized to agree to arbitrate the Districts claims. The District responds that its employees, including those in the OCFO, who were bound by the PPA, lacked authority to agree to arbitrate contract claims and claims involving fraud.24 The District relies for its argument principally upon the PPA statute and this courts decision in District of Columbia v. Greene, 806 A.2d 216 (D.C. 2002), in which this court addressed a similar issue. In Greene, Verizon South claimed that it had an agreement with the District to submit contract disputes to arbitration, while the District claimed that it did not because it could not agree to arbitration under the PPA. Greene, 806 A.2d at 218. In determining whether to enjoin arbitration until the matter was resolved by the Contract Appeals Board (CAB), this court construed applicable provisions of the PPA and determined that the District was likely to prevail on the merits of its argument that its employees could not agree to arbitration under that PPA. Id. 220-22. In reaching this conclusion, this court observed that the PPA plainly established the CAB as the exclusive hearing tribunal for determining the contract claims at issue in the case. Id. at 220. The court found persuasive the following provisions of the PPA, which are relevant to the issues we address here:

For purposes of this appeal, the District does not contend that its contracting officers lack authority to agree to arbitration as a general proposition.

24

App. 35 D.C. Code 2-308.03 (a)(1) states that . . . [a]ll claims by the District government against a contractor arising under or relating to a contract shall be decided by the contracting officer . . . . In like fashion 2-308.05 (a) provides that [a]ll claims by a contractor against the District government arising under or relating to a contract shall be . . . submitted to the contracting officer for a decision. In 2309.03(a), the statute goes on to declare that [t]he [Contract Appeals] Board shall be the exclusive hearing tribunal for, and shall have jurisdiction to review and determine de novo: . . . (2) Any appeal by a contractor from a final decision by the contracting officer on a claim by a contractor, when such claim arises under or relates to a contract; and (3) Any claim by the District against a contractor, when such claim arises under or relates to a contract. Greene, 806 A.2d at 220 (citing the quoted sections). Interpreting these and other provisions of the PPA, this court concluded in Greene that the PPA, in effect, withheld from the Districts contracting officers the power to agree to arbitration by specifying the manner in which the District may procure property, supplies and services25 and designating the CAB as the sole hearing tribunal for resolution of contract disputes. Greene, 806 A.2d at 222. Also pertinent to the courts decision, under local contract law, a contracting officer cannot obligate the District to terms that exceed his or

25

See D.C. Code 2-301.01.

App. 36 her actual authority. Id. at 222 (citing Coffin v. District of Columbia, 320 A.2d 301, 303 (D.C. 1974)). Thus, here, as in Greene, District employees or entities subject to the PPA would have had no authority to agree to a dispute resolution procedure different than the one specified by law. The general rule is that persons contracting with a municipal corporation must take notice of the nature and extent of its agents authority. Id. at 222 and 222 n.7 (citing Chamberlain v. Barry, 606 A.2d 156, 159 (D.C. 1992), and Coffin, 320 A.2d at 303 (quoting 10 McQuillan Municipal Corporations 29.04 at 219-22 (3d ed. 1966)). Thus, the Bank was bound to note any statutory limitation on the authority of those in the District with whom it contracted. To counter these authorities, the Bank argues that there is no statutory provision specifically precluding the OCFO from agreeing to arbitrate. This argument was made and rejected in Greene. As this court explained in that case, this argument is difficult, if not impossible, to square with the language of 2-309.03 (a) making the CAB the exclusive hearing tribunal for claims of the kind enumerated. Greene, 806 A.2d at 220 (citation omitted). Thus, contracting officers who were bound by the PPA did not have authority to agree to resolve contract disputes in another forum in another state. We find unpersuasive the Banks assertion that Greene is not supportive of the Districts position because it involved consideration of injunctive relief rather than a decision on the merits of the claim. In determining whether to grant this extraordinary remedy, the court had to decide whether there was a

App. 37 substantial likelihood that the moving party would prevail on the merits. See Greene, supra, 806 A.2d at 219-20 (citing District of Columbia v. Grp. Ins. Admin., 633 A.2d 2, 21 (D.C. 1983) (quoting Wieck v. Sterenbuch, 350 A.2d 384, 387 (D.C. 1976)). This required the court to address squarely the same question raised here, i.e., whether the PPA withheld authority from its contracting officers to agree to arbitration. In doing so, the court had to construe the PPA statute before deciding whether the District was likely to prevail on its claim. Thus, we agree that Greene is good authority for the Districts position here. Moreover, we are persuaded by its statutory analysis of the issue. Next, the Bank argues that the OCFO is exempt from PPA provisions regarding contracting authority. It contends that D.C. Code 2-301.04 (a) and subsequent Congressional enactments confirm the independent authority of the OCFO to contract and therefore to agree to arbitration.26 The District responds with authorities supporting its claim that the OCFO has always been bound by the PPA. The section of the Code upon which the Bank relies for its exemption argument reads in pertinent part as follows:

26

The Congressional actions referenced by the Bank are: District of Columbia Appropriations Act, 2006, 109 Pub. L. No. 115, 132, 119 Stat. 2508, 2522 (2005); Continuing Appropriation Resolution 2007, Pub. L. No. 109-289, 127(b), 120 Stat. 1311, 1316 (2006); H.J. Res. 100, 109 Pub. L. No. 369, 120 Stat. 2642 (2006); H.J. Res. 102, 109 Pub. L. No. 383, 120 Stat. 2678 (2006).

App. 38 . . . [the PPA] shall apply to all departments, agencies, instrumentalities, and employees of the District government . excluding . . ., and (to the extent described in 1-204.26) the Office of the Chief Financial Officer of the District of Columbia . . . . D.C. Code 2-301.04 (a) (2001) (2005 exemption).27 However, as the District points out, 2-301.04 (a)s exemption is subject to the limitation forth in 1204.26. Although 1-204.26 provided for the CFO to carry out procurement of goods and services for the OCFO through an office independent of the Chief Procurement Officer (CPO), it made the OCFO subject to the same procurement provisions applicable to the CPO. See D.C. Code 1-204.26.28 Thus, while 2301.04 (a) provided the OCFO with independent contracting authority, it made it subject to the PPAs procurement provisions to the same extent as the CPO. The Bank argues that such an interpretation would
This provision was repealed effective April 8, 2011. D.C. Law 18371, 1201(a).
28 27

D.C. Code 1-204.26 provides in pertinent part as follows: The Chief Financial Officer shall carry out procurement of goods and services for the Office of the Chief Financial Officer through a procurement office or division which shall operate independently of, and shall not be governed by, the Office of Contracting and Procurement . . . or any successor office, except the provisions applicable under such unit to procurement carried out by the Chief Procurement Officer established by 2-301.05 or any successor office shall apply with respect to the procurement carried out by the Chief Financial Officers procurement office or division. (Emphasis added.)

App. 39 render the exclusion in 2-301.04 (a) meaningless, contrary to the rule of statutory construction requiring that effect be given to each statutory provision, absent express legislative intent to the contrary. It contends that to give effect to both statutes, 1-204.26 must be interpreted to authorize the OCFO to procure goods and services independent from the PPA except when its procurement is carried out by the OCFOs Chief Procurement Officer.29 We have no quarrel with the Banks recitation of the rule of statutory construction;30 however, its application of the rule here is flawed. Both 2-301.04 (a) and 1204.26, referenced therein, can be given effect without one defeating the purpose of the other. While 2301.04 (a) provided for independent contracting authority for the OCFO, 1-204.26 simply required that in exercising that authority, the OCFO adhere to the same statutory procurement requirements by which the Districts CPO was bound. This interpretation, persuasively urged by the District, is consistent with the plain meaning of the statutes. See Boyle v. Giral, 820 A.2d 561, 568 (D.C. 2003) (setting forth the principle that we look first to the plain
The Bank relies upon the September 25, 2000 and March 6, 2006 TSB Authorizations because they were not carried out by OCFOs Chief Procurement Officer.
30 29

See Detweiler v. Pena, 38 F.3d 591, 594 (D.C. Cir. 1994) (quoting Morton v. Mancari, 417 U.S. 535, 551 (1974) (When two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.)); see also Abadie v. District of Columbia, 843 A.2d 738, 742 (D.C. 2004) (stating that [i]f related statutes conflict, we must reconcile them). (Citation omitted).

App. 40 meaning of a statute in interpreting it, read in light of the statute as a whole) (citation omitted). There is nothing in the statute that suggests, as the Bank contends, that District officials in the OCFOs Office of Finance and Treasury, as opposed to those in the Procurement Office, were at liberty to ignore the requirements of the PPA.31 In any event, the parties 2005 contract, hereinafter discussed, incorporated the PPA, and thus, as the trial court determined, evidence[d] the intent of the OCFO to adhere to the PPA with respect to its dealings with the [Bank]. This courts decision in Abadie, supra, 843 A.2d at 738, relied upon by the District, supports its argument that the OCFO was subject to the PPA. In Abadie, this court concluded that, with limited, specified exceptions, the PPA applied to the OCFO during control years. Id. at 745-46.32 The court noted in Abadie that 2-

The 2000 and 2006 TSB Authorizations were executed by District Officials in the OCFOs Office of Finance and Treasury, acting under a 2000 corporate resolution. The Bank contends that these particular officials were not bound by the PPA. The Procurement Reform Amendment Act of 1996 (effective April 1997) (Reform Act) exempted the OCFO from provisions of the PPA during control years, and required the OCFO to adopt . . . the procurement rules and regulations adopted by the District of Columbia Financial Responsibility and Management Assistance Authority [Control Board]. D.C. Code 2-301.04 (c) (2001). A control year is any fiscal year for which a financial plan and budget approved by the [Control Board] . . . is in effect, and includes Fiscal Year 1996. D.C. Code 47-393 (4) (2005). In Abadie, supra, this court considered and interpreted several statutory provisions related to its decision including those related to the OCFO and the PPA. See Abadie, 843 A.2d at 741, 742-44.
32

31

App. 41 301.04 (a), which sets forth governmental entities exempt from the PPA, did not include the OCFO, although it did list the Control Board for exemption. Id. at 743. Consistent with the legislative history and rules of statutory interpretation, this court held in Abadie that the OCFOs exemption for control years applied only to the types of contracts listed in the sentence that immediately preceded it, i.e., those for professional services of accountants, lawyers, and other experts. Id. at 745. The Bank argues that even if Abadie could be construed as subjecting the OCFO to the PPA, its holding was rejected by subsequent Congressional enactments, specifically, the Districts 2006 Appropriations Act, which became law on November 30, 2005 (effective retroactively from April 1997), three extensions of the 2005 exemption, and permanent codification of the exemption in D.C. Code 2-301.04. The District responds that there is no evidence that Congress considered or intended to overrule Abadie and that the 2006 Appropriations Act did not exempt the OCFO from the dispute resolution provisions of the PPA or render ineffective the terms of the parties 2005 contract incorporating the PPA that was executed before enactment of the statute. The 2006 Appropriations Act provided that [t]he entire process used by the Chief Financial Officer to acquire any and all kinds of goods, works, and services by any contractual means . . . shall be exempt from all of the provisions of the District of Columbias Procurement Practices Act: Provided, That provisions made by this

App. 42 subsection shall take effect as if enacted in D.C. Law 11-259 [(the 1996 Procurement Reform Amendment Act)] and shall remain in effect until September 30, 2006. District of Columbia Appropriations Act, 2006, Pub. L. No. 109-115, 132, 119 Stat. 2396, 2522 (2005).33 While the 2006 Act exempted the OCFO from the PPA with respect to the acquisition of goods and services by contract, it did not address the administration of any contract entered or the resolution of disputes arising therefrom covered by sections of the PPA. To that extent, it left intact other provisions of the PPA governing contract administration. Neither the plain language of these enactments nor the legislative history cited by the Bank supports its argument that Congress intended to overrule Abadie.34 When overruling court decisions, Congress has been explicit in the past.35

This exemption was extended three times through February 15, 2007. See Continuing Appropriations Resolution 2007, Pub. L. No. 109-289, 127 (b), 120 Stat. 1311, 1316 (2006) (extension through 11/17/06); H.J. Res. 100, 109 Pub. L. No. 369, 120 Stat 2642, 2642 (2006) (extension through 12/8/06); H.J. Res. 102, 109 Pub. L. No. 383, 120 Stat. 2678, 2678 (2006) (extension through 2/15/07). Reference is made to H.R. Conf. Rep. 109-307 (2005), 205 WL 3131557: S. Rep. 109-109 (2005) (2005), reprinted in 2006 U.S.C.C.A.N. 1260. See, e.g., Molovinsky v. Fair Empt Council of Greater Washington, Inc., 683 A.2d 142, 148 n.11 (D.C. 1996) (Noting that [t]he legislative history makes clear that Congress specifically intended to overrule Luck [v. United States, 121 U.S. App. D.C. 151, 348 F.2d 763 (1965)], rejecting the Luck rule as absolutely
35 34

33

App. 43 The District argues that the process used to acquire the Banks services had concluded before this law was enacted. Although this provision was made retroactive to 1997, the District argues that the 2006 Act did not invalidate the parties 2005 agreement to be bound by the PPA, as the Bank suggests. As it points out, the laws in effect at the time of the making of a contract form a part of the contract as fully as if they had been expressly referred to or incorporated in its terms. Double H. Hous. Corp. v. Big Wash, Inc., 799 A.2d 1195, 1199 (D.C. 2002) (quoting Farmers & Merchants Bank of Monroe v. Federal Reserve Bank of Richmond, 262 U.S. 649, 660 (1923)) (other citation omitted); accord, Akassy v. William Penn Apts. Ltd. Pship, 891 A.2d 291, 300 (D.C. 2006). In this case, the parties specifically incorporated into the 2005 contract the PPA, the law in effect at the time. The District contends that the PPA is even clearer in precluding OCFO employees from agreeing to arbitrate claims involving fraud. While the PPA authorized contracting officers to resolve contract disputes (see D.C. Code 2-308.03 (a)(1) (2006 Repl.)), it did not authorize the contracting officer to settle, compromise, pay or otherwise adjust any claim involving fraud. D.C. Code 2-308.03 (a)(4) (2006

unworkable. H.R. Rep. No. 91-907, [91st Cong., 2d Sess. 62, 63 (1970)]; Brown v. United States, 518 A.2d 446, 447-48 n.3 (D.C. 1986) (referencing legislative history reflecting Congressional intent to overrule definition of a term in a particular case as reflected in H.R. Rep. No. 907, 91st Cong. 2d Sess. 62 (1970)).

App. 44 Repl.)).36 The District argues that this express prohibition precluded a contracting officer for the District from agreeing to arbitration of claims involving fraud. A preliminary question raised by the Districts position is whether an agreement to arbitrate a dispute falls within the parameters of these PPA prohibitions. The answer depends to some extent upon the meaning of the term arbitration. This court has observed previously that The Federal Arbitration Act is silent on the definition of arbitration.37 See Washington Automotive v. 1828 L St. Assocs., 906 A.2d 869, 875 (D.C. 2006); see also Harrison v. Nissan Motor Corp. In U.S.A., 111 F.3d 343, 350 (3d Cir. 1997) (noting that the FAA does not define arbitration, and that courts and commentators have struggled to do so.). In determining whether a certain appraisal process constituted an arbitration under the FAA, the Tenth Circuit noted that [c]entral to any conception of classic arbitration is that the disputants empowered a third party to render a decision settling their dispute. Salt Lake Tribune v. Mgmt. Planning, 390 F.3d 684, 689 (2004) (citation omitted). Also essential to rendering the process an arbitration is that the third partys decision will settle the dispute. Id. at 690 (citation omitted). In defining arbitration in Harrison, supra, the court stated, [a]lthough it defies easy definition,
D.C. Code 308.03 was repealed effective April 8, 2011, D.C. Law 18-371, 1201(a). Similarly, this court noted that the D.C. Arbitration Act did not define the term arbitration. Washington Automotive, supra, 906 A.2d at 875.
37 36

App. 45 the essence of arbitration . . . is that, when the parties agree to submit their disputes to it, they have greed to arbitrate these disputes through to completion. 111 F.3d at 350. Dictionary definitions include these described elements, including binding and final settlement or resolution of a dispute by a designated third party.38 The PPA precludes contracting officers from settling or adjusting disputes involving fraud. When the government is a party to a contract, its representative must have actual authority in order to bind the government to it. See Hanlin v. United States, 316 F.3d 1325, 1328 (Fed. Cir. 2003) (setting forth actual authority as an element of proof required to prove an express or implied-in fact contract with the government); accord, City of Cincinnati v. United States, 153 F.3d 1375, 1377 (Fed. Cir. 1998). It follows rationally that a government representative cannot delegate to another actual authority that he or she does not possess. In short, contracting officers bound by the PPA cannot agree to settle, compromise or otherwise adjust fraud claims, and they cannot delegate to others the authority to do so. Thus, we agree with the District that the PPA withheld authority from OCFO employees to agree to arbitrate fraud claims as well as contract

For example, arbitration is defined as [a] method of dispute resolution involving one or more neutral third parties who are usually agreed to by the disputing parties and whose decision is binding. Blacks Law Dictionary, 112 (8th ed. 2009). Websters Third New International Dictionary defines arbitration as the hearing and determination of a case between parties in controversy by a person or persons chosen by the parties or appointed under statutory authority instead of by a judicial tribunal provided by law. Websters Third New International Dictionary, 110 (3d ed. 1993).

38

App. 46 claims. A person making or seeking to make a contract with a municipal corporation is charged or imputed with knowledge of the scope of the agencys authority. Chamberlain v. Barry, 606 A.2d 156, 159 (1992) (citing Coffin, supra, 320 A.2d at 303). 2. Preemption The Bank argues that even if the PPA did apply to the OCFO, the FAA preempts state laws like the PPA. It contends that the FAA prohibits state law from interfering with the objectives of the FAA, and therefore, the Districts argument that the PPA withheld authority from District officials to agree to arbitration must fail. Unquestionably, the FAA establishes a national policy favoring arbitration when the parties contract for that mode of dispute resolution. Preston v. Ferrer, 552 U.S. 346, 349 (2008) (citing Southland Corp. v. Keating, 465 U.S. 1 (1984)) (emphasis added). The FAA provides for the application of federal substantive law regarding arbitration in both federal and state courts. Id. (citing Southland, 465 U.S. at 16). Relying upon Preston, the Bank argues that the PPAs grant of exclusive jurisdiction of FCA claims to Superior Court and contract claims to the Contracting Officer and the CAB is superseded by the FAA. The District counters that Preston did not involve a statute that withheld authority from a government employee to agree to arbitrate, but rather one that bars enforcement of otherwise enforceable arbitration agreements. The District argues that the former is permissible, while the latter is not. The District has the better argument on this point. In Preston, there was no dispute that the parties had a written agreement providing for arbitration. The

App. 47 Supreme Court held that when parties agree to arbitrate all questions arising under a contract, state laws lodging primary jurisdiction in another forum, whether judicial or administrative, are superseded by the FAA. Id. at 349-50 (emphasis added). Preston, claiming fees allegedly due under a contract with Ferrer, sought arbitration under an arbitration clause covering any dispute . . . relating to the terms of [the contract] or breach, validity, or legality thereof . . . in accordance with the rules [of the American Arbitration Association]. Id. at 350. Ferrer petitioned the California Labor Commissioner to have the contract declared void under the California Talent Agencies Act (TAA)39 because Preston had acted as a talent agent without the requisite license. Id. Although finding a basis for the exercise of jurisdiction, the Labor Commissions hearing officer denied Ferrers motion to stay arbitration for lack of authority to grant such relief. The Los Angeles Superior Court denied Prestons motion to compel arbitration, and the California Court of Appeals affirmed, holding that the TAA vests exclusive original jurisdiction over the dispute in the Labor Commissioner. The California Supreme Court denied review, and the Supreme Court granted certiorari to determine whether the FAA overrides state law vesting initial adjudicatory authority in a state administrative agency. The Supreme Court determined that the TAA conflicts with the FAAs dispute resolution mechanism in that (1) it granted exclusive jurisdiction to the Labor Commissioner to decide an issue that the parties agreed to arbitrate, and (2) it imposed prerequisites to enforcement of the

39

Cal. Lab. Code Ann. 1700 et seq. (West 2003 and Supp. 2008).

App. 48 arbitration agreement not applicable to contracts generally. Id. at 356. Therefore, the Supreme Court held that the FAA superseded state law (the TAA) and that pursuant to the parties contract, their rights must be decided in an arbitral forum. Id. at 352. There is an important difference between the circumstances presented in Preston and those presented here. In this case, the PPA simply imposes statutory restrictions on the authority of municipal employees to agree to arbitration. It does not bar enforcement of valid arbitration agreements or impose conditions upon such agreements not applicable to other contracts. See Greene, supra, 806 A.2d at 221. As the court stated in Greene in addressing an analogous argument that applies here: what [the Banks] argument does is to mistake the authority of a state to bar enforcement of otherwise valid arbitration agreements power denied the state except insofar as 2 [of the FAA] permits for the authority of a government contracting for goods or services in its own behalf to refuse to agree to arbitrate disputes. Id. The FAA does not mandate arbitration; it requires enforcement of privately negotiated arbitration agreements. Id. at 222. Here, the PPA withheld from contracting officers the authority to bind the District to arbitration, just as any private corporation or individual might limit an agents contracting authority. Therefore, we reject the Banks preemption argument. 3. Controlling Contractual Agreement As previously discussed, the trial court ruled that the PPA, which was incorporated into the 2005 contract, withheld from the CFO and OCFO officials the authority to agree to arbitration and forum

App. 49 selection for contract and fraud claims at the time the authorization and agreements for Treasury Services were signed. Alternatively, the trial court found that the parties 2005 contract provisions governing dispute resolution and contract modification superseded any clauses on the subject that the Bank claims were agreed upon previously and any provision that would otherwise allow District officials to agree to arbitration in North Carolina or elsewhere. The court also concluded that after execution of the 2005 contract, the Deputy CFO/Treasurer lacked authority to bind the District to dispute resolution clauses in the 2008 deposit agreement. The Bank argues that the trial court erred in its rulings because: (1) it misapplied basic contract integration principles in holding unenforceable the arbitration provisions in the TSB and the forum selection clauses in the Deposit Agreement signed before the 2005 contract; and (2) the 2005 contract cannot supersede documents containing such provisions signed by District officials after the 2005 contract was entered.40 The Bank contends that the 2005 contract is partially integrated and that the arbitration clause in the TSB and the forum selection provisions in the Deposit Agreements operate harmoniously and must be integrated into the 2005

The documents the Bank references include: (1) previously and subsequently signed Authorizations incorporating the Treasury Booklet which contained an arbitration clause; (2) Documents in the Agreements/Documentation section in its responses to the 2002 and 2005 RFPs; and (3) Treasury Booklets that it contended were sent with its responses to the 2002 and 2005 RFP. However, the trial court found as fact that the Treasury Booklet was not included in these two submissions.

40

App. 50 contract. Alternatively, it argues that subsequently executed agreements control dispute resolution. a. Effect of the 2005 Contract on Prior Agreements When parties to a contract have executed a completely integrated written agreement, it supersedes all other understandings and agreements with respect to the subject matter of the agreement between the parties, whether consistent or inconsistent, and is viewed as the sole expression of the parties intent. Masurovsky, supra, 687 A.2d at 202 (citing Howard Univ. v. Good Food Servs., Inc., 608 A.2d 116, 126-27 (D.C. 1992)) (other citation omitted). A partially integrated agreement is one where the writing represents the agreement of the parties with respect to the matters stated therein, but there may be additional consistent terms. Id. (citing Good Food Servs., 608 A.2d at 126)) (other citation omitted). Whether an agreement is completely or partially integrated is a preliminary question of fact for the trial court. Id. at 126 (citing Ozerol v. Howard Univ., 545 A.2d 638, 641 (D.C. 1988)). In making its factual inquiry, the trial court must consider the intent of the parties when they entered the agreement as derived from the conduct and language of the parties and the surrounding circumstances. Id. In this case, before deciding that the parties 2005 contract rendered ineffective any prior authorizations or agreements for arbitration and forum selection, the trial court held an evidentiary hearing, made factual findings, and considered the factors essential to its determination as set forth in our case law. See, e.g., Good Food Servs., supra, 608 A.2d at 126 (citation omitted). The trial court concluded that the parties

App. 51 written contract containing a merger clause, the conduct of the parties and the surrounding circumstances, evaluated as a whole, weigh heavily in favor of the 2005 contracts categorization as a fully integrated document with respect to dispute resolution and authority to modify. The court also stated that even if the 2005 contract could be characterized as partially integrated, it would supersede any inconsistent terms in prior agreements. See id. However, the trial court also found that the parties did not intend for the 2005 contract to invalidate documents signed by OCFO and OFT officials to the extent that they allowed the account to remain open and maintained by authorized individuals. The trial courts ultimate conclusion that the 2005 contract is a completely integrated document with respect to dispute resolution and authority to modify is supported by the record and applicable law. First, the 2005 contract contains a merger clause that states, This contract, including specifically incorporated documents, constitutes the total and entire agreement between the parties. All previous discussions, writings, and agreements are merged herein. The presence of a merger clause, although not conclusive, is a significant factor indicating that the parties intended the 2005 contract to be a complete expression of the terms agreed upon. Good Food Servs., supra, 608 A.2d at 127 (II Farnsworth on Contracts 7.3, at 204-07 (1990)). Second, specific items or documents intended to be included in the contract are listed. A listing of extrinsic items that form a part of the contract is a factor tending to support the conclusion that a contract is completely integrated. Hercules & Co. v. Shama Rest. Corp., 613 A.2d 916, 928 (D.C. 1992) (holding that this

App. 52 factor, along with two merger clauses, established beyond peradventure that the contract was completely integrated). The trial court found that the TSB containing an arbitration clause, aside from not being enumerated as a contract document, was not included in the Banks response to the 2002 RFP or its 2005 best and final offer.41 This factual determination is supported by the evidence and not clearly erroneous; therefore, we accept it. See Psaromatis v. English Holdings I, L.L.C., 944 A.2d 472, 481 (D.C. 2008) (setting forth clearly erroneous standard for review of the trial courts factual findings when sitting as fact finder). Third, the trial court considered the circumstances surrounding the making of the contract before determining that it was fully integrated, specifically as to dispute resolution and modification authority. See Good Food Servs., supra, 608 A.2d at 126 (setting forth surrounding circumstances as one focus of the inquiry into whether the parties intended an agreement to be completely integrated). Briefly stated, these circumstances included the OCFOs effort[s] to assert

The trial court did not credit the testimony of the Banks Senior Vice President Biachi that he mailed the TSB with the 2002 and 2005 responses to the RFP. See Lazo v. United States, 54 A.3d 1221, 1230 (D.C. 2012) (stating that this court will not redetermine the trial courts credibility determinations where it had the opportunity to observe the witness demeanor). Here, the trial court also found that Mr. Biachi, who signed the contract, did not focus on the merger clause, dispute resolution clause, arbitration or the requirements of the PPA, nor did he even know that there was an arbitration provision in the TSB. The trial court also found that at no time did the parties discuss dispute resolution before the award of the 2005 contract.

41

App. 53 control over the Districts finances, including its bank accounts, in part, by issuing the 2002 RFP.42 The trial court found that [a]n important part of that endeavor was empowering only one person to contractually bind the District, and except for claims under the False Claims Act, establishing only one method of resolving disputes through the Contracting Officer. To this end, the RFP provided that only the Contracting Officer is authorized to make modifications or changes to the terms and conditions of the contract. The RFP further required that bidders include a dispute resolution provision stating that [i]f a dispute arises under or relates to the contract, a claim by the Contractor shall be made in writing and submitted to the Contracting Officer for a written decision. A Claim by the District against the Contractor shall be subject to written decision by the Contracting Officer. Contract clauses required by the RFP also included the incorporation by reference of the PPA and applicable regulations and the laws of the District of Columbia. Except for fraud claims, the PPA provided for only one form of dispute resolution for contract claims, i.e., that they be resolved by the Contracting Officer. The PPA provides that contracting officers are not authorize[d] . . . to settle, compromise, pay, or otherwise adjust any claim involving fraud. D.C. Code 2-308.03 (a)(4) (2006 Repl). It also provides that the District may bring a civil action in Superior Court for fraud claims. D.C. Code 2-308.14.43

The trial court found that there were 1400 bank accounts when Dr. Gandhi was appointed CFO in June 2000.
43

42

D.C. Code 2-308.14 is now codified at D.C. Code 2-381.02 (a).

App. 54 The District issued an amendment to the RFP on March 31, 2005, but the terms and conditions related to dispute resolution, contract modification, and incorporation of the PPA and other laws of the District of Columbia remained unchanged. Consistent with the RFPs requirements, the 2005 contract executed by the parties states in Article I that [t]he intent of this contract is for a contractor to manage the disbursement account in accordance with the published RFP.44 The trial court found that [s]ignificantly, the Treasury Booklet was not included as part of the [Banks] 2002 RFP Response and the 2005 [Best and Final Offer] that were incorporated into the 2005 Contract that Mr. Bianchi [the Banks Senior Vice President] signed. This factual finding, which is supported by the evidence, is not challenged. Given the language in the written contract, the conduct of the parties, and the surrounding circumstances as found by the trial court, we discern no error in its conclusions that objectively the parties intended the 2005 written contract to govern their relationship related to the CDA with respect to dispute resolution and authority to modify the agreement and that any prior inconsistent provisions on these subjects were superseded by the 2005 contract.45 Our jurisdiction adheres to an

The contract incorporated the following documents by order of precedence: Articles I through V; Contractors Technical Proposal and Cost Proposal; Contractors Best and Final Offer dated April 25, 2005; and the Districts RFP. See Good Food Servs., supra, 608 A.2d at 126-27 (setting forth basis for determining the preliminary factual issue of whether the parties intended a writing to be integrated); see also Ozerol, 545 A.2d at 641 (contrasting completely and partially integrated
45

44

App. 55 objective law of contracts, meaning that the written language embodying the terms of an agreement will govern the rights and liabilities of the parties regardless of the intent of the parties at the time they entered into the contract[.] Aziken v. District of Columbia, 70 A.3d 213, 218-19 (D.C. 2013) (internal quotation marks omitted). The Bank argues that the trial court erred by failing to harmonize the dispute resolution provisions of the 2005 contract and the TSBs arbitration clause. It contends that the TSB and Deposit Agreement operate harmoniously with the 2005 contract, and therefore must be construed together as one contract. In interpreting a contract, we consider the document as whole so as to give effect, if possible, to all of the provisions in the contract. Steele Found. Inc. v. Clark Constr. Grp., 937 A.2d 148, 154 (D.C. 2007) (citing Akassy, supra, 891 A.2d at 303). Contrary to the Banks argument, the dispute resolution mechanism agreed upon in the 2005 contract and the prior arbitration and forum selection clauses upon which it relies cannot be reconciled or harmonized.46 As the trial court

agreements and noting that the latter may have consistent, as opposed to inconsistent, additional terms). Bank Julius Baer & Co. v. Waxfield Ltd., 424 F.3d 278 (2d Cir.), upon which the Bank relies, is distinguishable. In that case, the district court determined that merger and forum selection clauses in a series of subsequently executed Pledge Agreements superseded a prior agreement to arbitrate disputes. Id. at 280. The Pledge Agreements had a clause providing that all rights and remedies provided in this Agreement are cumulative and not exclusive of any provided under any other agreement or by law or in equity. Id. at 282. The circuit court stated that in light of this
46

App. 56 concluded, the mechanisms for dispute resolution agreed upon in the 2005 written contract are inconsistent with any prior arbitration and forum selection provisions calling for arbitration in North Carolina that the Bank contends were agreed upon prior thereto. The provisions in the 2005 contract, solicited, negotiated, and agreed upon in writing, provide that: (1) except for fraud claims, claims related to the parties contract will be decided by the Contracting Officer and Contract Appeals Board; and (2) fraud claims can be pursued in a civil action in court by the Attorney General as stated in the PPA, which was incorporated by reference. These provisions are entirely inconsistent with any prior agreements to arbitrate claims in North Carolina or elsewhere. Even if the 2005 agreement is characterized as only partially integrated, prior inconsistent terms with respect to the matters stated therein were superseded by the 2005 contract, and therefore, they cannot control. See Masurovsky, supra note 11, 687 A.2d at 202 (citing Good Food, supra, 608 A.2d at 126) (other citation omitted). To the extent that provisions for dispute resolution and forum selection are referenced on bank signature cards and authorizations pre-dating the parties 2005 contract, for the foregoing reasons, we

clause, it would make little sense to read the merger clause to destroy prior contract relationships. Id. at 283. Consistent with New York law, the court read the merger clause as providing that the Pledge Agreements supersede any previous agreements only to the extent that they conflict. Id. In the case before this court, we have no similar non-exclusive remedies provision, and the terms of the dispute resolution provisions in the written contract and prior documents conflict.

App. 57 agree with the trial court that they were superseded by the 2005 contract and cannot be harmonized with it. b. Effect of Subsequently Executed Documents on the 2005 Contract Alternatively, the Bank argues that TSB and Deposit Agreements signed by OFT officials after the 2005 contract was entered control.47 It contends that for partially integrated contracts, the most recent writing controls or that the 2005 contract could be supplemented or modified by documents executed thereafter. The Bank takes the position that OFT officials retained independent contracting authority under the 2000 Corporate Resolution and that by signing signature cards and Authorizations, OFT employees bound the District to the Deposit Agreements forum selection clause and the Treasury Booklets arbitration clause. The Bank argues that these documents either reinstated the terms of the TSB and Deposit Agreement or modified, supplemented, and amended the terms of the 2005 Contract to include them.48 The trial court held that after execution of the

The Bank relies on the 2006 Authorization agreeing to be bound by the TSB, signed by Deputy Chief Financial Officer, Lasana Mack, pursuant to authority provided by the 2000 Corporate Resolution, and signature cards signed in 2006. The TSB provides for arbitration in the United States, and the Deposit Agreements provide for actions or proceedings involving the account to be maintained in the Banking Center maintaining the account, in this case North Carolina. The District suggested that this court need not consider whether OFT employees retained contracting authority after the 2005 contract was executed because it did not understand the Banks
48

47

App. 58 2005 contract, which was extended each year up to November 2009, OFT officials plainly lacked the authority to bind the District to the dispute resolution clauses in either the 2004 Treasury Booklet or the 2008 Deposit Agreement. There are at least two major impediments to the Banks suggested result on this issue. First, the RFP and the 2005 contract provided that the Contracting Officer was the only official authorized to contractually bind the District. Even assuming that OFT officials retained some authority related to banking services after the execution of the 2005 contract, the Bank, as a party to that contract, knew that only the Contracting Officer had authority to agree on behalf of the District to modify or vary its terms. Even absent actual knowledge of the limitations on a government agents authority, as existed here, one who contracts with a government agent is constructively notified of the limits of that agents authority, and any reliance on contrary representations cannot be reasonable. Williams v. District of Columbia, 902 A.2d 91, 96 (D.C. 2006) (citing Leonard v. District of Columbia, 801 A.2d 82, 86 (D.C. 2002) and Greene, supra, 806 A.2d at 222 n.7 (persons dealing with a municipal corporation through its agent are bound to know the nature and extent of the agents authority) (quoting Coffin, supra, 320 A.2d at 303)) (other citations omitted). Put another way, the Bank knew that whatever authority other officials had to sign bank documents on behalf of the District, that
argument to be that subsequent agreements altered or modified the terms of the existing contract. In its Reply Brief, the Bank clarified its position to state otherwise.

App. 59 authority did not include modification of the parties 2005 contract. Therefore, the Bank could not bind the District to a modification of the dispute resolution provisions in the 2005 contract simply because officials, other than the authorized Contracting Officer, signed form bank signature cards and/or deposit agreements with printed language purporting to impose different arbitration and forum selection requirements. The trial court found that the individuals who signed these cards for the District were unaware that the fine print had arbitration and forum selection terms. According to the testimony and trial court findings, they signed the documents only for the purpose of adding or changing signatories on the accounts without noting the fine print. None of them intended to effect a modification of the 2005 contract. Of course, [a] person who signs a contract after having had an opportunity to read and understand it is bound by its provisions. Interdonato v. Interdonato, 521 A.2d 1124, 1133 (D.C. 1987) (citation omitted). However, that is not the issue here. The determinative issue in this case is whether the person who signed the document had authority to bind the District government to a modification of the 2005 contract. Under the terms of that contract, only the Contracting Officer had that authority. Second, the 2005 contract was extended four times after its initial execution, finally in November 2008 and expiring on November 12, 2009 or the date any new contract was executed, whichever came first. This contracts essential terms concerning dispute resolution, incorporation of the PPA, and contract modification remained unchanged throughout this period. Therefore, to the extent that the Bank argues that the last executed document controls, that would be

App. 60 the 2005 contract that was extended each year through November 2009. Therefore, under the Banks modification analysis, this contract would have continued to govern dispute resolution and contract modification. C. Challenge to the CABs Jurisdiction Over the Claims Asserted Finally, the Bank argues that there is no conflict between the dispute resolution provisions in the 2005 contract and the arbitration provision it seeks to enforce because the Districts claims are not subject to the jurisdiction of the Contracting Officer or CAB. It contends that the Districts claims are either statutory or tort claims which the Contracting Officer and CAB have no authority to resolve. The District views the Banks argument as its recognition that by incorporating the PPA into the contract, the parties agreed that the Contracting Officer would hear contract claims, and the Attorney General for the District could bring an FCA claim in Superior Court. At the same time, the District agrees with the Bank that its claims do not fall within the provision of the 2005 contract requiring that the contracting officer decide disputes related to the contract. It contends that its statutory and tort claims against the Bank do not turn on the contractual relationship between the parties and that they could have been asserted against any bank that negotiated the fraudulent checks. Therefore, the District concedes that the trial court erred in holding that the Districts claims related to the contract, but takes the position that the claims should have been resolved in Superior Court.

App. 61 Under the PPA, [a]ll claims by the District government against a contractor arising under or relating to a contract shall be decided by the contracting officer who shall issue a decision in writing. . . . D.C. Code 2-308.03 (a)(1) (2001). The Contract Appeals Board had jurisdiction of [a]ny claim by the District against a contractor, when such claim arises under or relates to a contract. D.C. Code 2309.03 (a)(3) (2001). The statute limits this jurisdiction by providing that the contracting officer is not authorized to settle, compromise, pay, or otherwise adjust any claim involving fraud. D.C. Code 308.03 (a)(4) (2001). The PPA provides that the District may bring a civil action to recover damages or penalties against any person who commits specified fraudulent acts. D.C. Code 2-308.14 (a)(1)-(9). A claim arises under a contract (1) where the claim ultimately depend[s] on the existence of a contractual relationship between the parties; (2) resolution of the claim[] relates to interpretation of the contract; or (3) [a] contract-related tort claim involve[s] the same operative facts as a parallel claim for breach of contract. Cheney v. IPD Analytics, LLC, 583 F. Supp. 2d 108, 122 (D.D.C. 2008) (alteration in original) (quoting Terra Intl, Inc. v. Mississippi Chem. Corp., 119 F.3d 688, 694 (8th Cir. 1997)) (internal quotation marks omitted). There must be a causal connection between the claim and the contract based on rights, duties, or injury flowing from the contract. Id. at 122 (quoting Phillips v. Audio Active, Ltd., 494 F.3d 378, 389 (2d Cir. 2007)) (internal quotation marks omitted). The statute does not define related to the contract or distinguish between the phrases arising under and related to the contract. The definition of related to

App. 62 is simply associated with or connected to.49 There must be some nexus between the contract and the claim asserted such that reliance on the contracting officers expertise promotes a just resolution. It is not clear on this record that the Districts claims arise under the parties contract based on the definition extracted from Cheney, supra, 583 F. Supp. at 122. The District sued the Bank for violation of the Uniform Commercial Code (Counts I and II), Negligence (Count III), Fraud (Count IV), Negligent and Intentional Breach of Fiduciary Duties (Count V), Conversion (Count VI), False Claims Act violations (Count VII),50 and Failure to Adequately Hire, Train or Supervise (Count VIII). Resolution of none of the claims appear to concern an interpretation of the contract, and there is no parallel breach of contract claim. To some extent, some of the claims may depend upon the existence of a contractual relationship between the parties. See Cheney, supra, 583 F. Supp. at 122. Others may not. Nor do all of the claims appear

49

The American Heritage Dictionary of the English Language, 1097 (William Morris, ed. 1969).

In Count VII of its first amended complaint, the District adopted and incorporated the factual allegations set forth in the preceding eight counts (paragraphs 1 - 117) of its complaint as the basis for its False Act Claims under D.C. Code 2- 308.14 (a), subsections (2) (knowingly mak[ing], us[ing] or caus[ing] to be made or used, a false record or statement to get a false claim paid or approved by the District), (3) (conspir[ing] to defraud the District by getting a false claim allowed or paid by the District), (8) (failing to disclose after discovery a false claim to the District received as an inadvertent payment or overpayment), and (9) (knowingly failing to repay an inadvertent payment or overpayment to the District).

50

App. 63 on the face of the complaint to be connected to the contract itself or require the expertise of a contracting officer for just resolution. Further inquiry by the trial court appears to be necessary to make that determination. This court has held that the CAB does not have jurisdiction over a claim for professional negligence, recognizing the CABs position with respect to its own jurisdiction. District of Columbia Water and Sewer v. Delon Hampton & Assocs., 851 A.2d 410, 417 n.16 (D.C. 2004) (citing George A. Bass Constr. Co., CAB No. D869 (June 10, 1991)).51 In particular, this court noted that the CAB had stated that any action based on negligence lies not before the Board but in Superior Court. Id. (quoting Bass Constr. Co.). More recently, the CAB has explained that it may exercise jurisdiction over claims that actually are for defective contract performance, although asserted in the language for tort actions. In re Chief Procurement Officer (GTE South, Inc.), 2002 DCBCA LEXIS 23, at *3-4 n.2. Although the CAB dismissed the tort claims in GTE South because its jurisdiction is limited to contract actions, it explained circumstances under which it had considered cases asserted as torts, but that were actually contract claims. Specifically, the CAB stated:

In Delon Hampton, an issue under consideration was whether the trial court abused its discretion in not referring claims for breach of contract and professional negligence for administrative remedy under the doctrine of primary jurisdiction. 851 A.2d at 41617. The trial court rejected the argument because the CAB would have declined to provide an administrative remedy, and the doctrine of primary jurisdiction does not apply where no administrative remedy exists. Id. at 417 & n.417 n.16.

51

App. 64 Although, at times, the Board exercises jurisdiction over claims which are framed in the language of tort actions, those cases deal with contract performance, not torts unrelated to performance. For example, references to negligence and professional malpractice in performance of a contract, although sounding like a tort, do not convert into a tort what is in essence a claim for defective performance. See, e.g., Fry & Welch Associates, P.C., CAB No. D0821, July 31 1997, 44 D.C. 6859, 6875. GTE South, 2002 DCBCA LEXIS 23 at *3-4 n.2. Whether the Districts claim for negligence (Count III) is in essence a claim for defective performance remains to be determined after further inquiry by the trial court. On the other hand, most of the Districts claims appear to involve fraud perpetrated by the Districts former employees and allegedly facilitated by the Bank. To the extent that these claims involve fraud, they are properly pursued in court, given the PPAs prohibition against contracting officers paying, compromising, settling or otherwise adjusting any claim involving fraud, see D.C. Code 308.03 (a)(4), and authorization for the District to sue persons committing certain fraudulent acts in Superior Court for damages. See D.C. Code 2-308.14 (a)(1). Interpreting a similar federal statute, 41 U.S.C. 605(a), numerous district courts have held that the Government can sue in district court whenever fraud is at issue even if the claim itself is not for fraud. United States v. Menominee Tribal Enterprises, 601 F. Supp. 2d 1061, 1078 (E.D. Wis. 2009) (citing United States v. Unified Industries,

App. 65 929 F. Supp. 947, 950-51 (E.D. Va. 1996); United States v. Rockwell Intl Corp., 795 F. Supp. 1131, 1135 (N.D. Ga. 1992)). Similarly, the provision of the PPA lends itself to that same interpretation. In summary, we conclude that the Districts claims in the remaining seven counts may not be dismissed in favor of jurisdiction before the contracting officer and the CAB without a determination of whether those claims can be properly pursued in that forum or are properly before the Superior Court. That determination must be made on the basis of the nature of the claim, rather than its title. Consistent with the principles set forth in this section, the trial court must make that determination with respect to each count. For the foregoing reasons, we affirm the trial courts decision insofar as it holds that the parties had no agreement to arbitrate disputes in North Carolina. We remand the case to the trial court with instructions to determine, based on the principles enunciated in this opinion, which counts, if any, should remain for disposition in the Superior Court as claims involving fraud or as claims not otherwise within the jurisdiction of the Contract Appeals Board.

So ordered.

App. 66

APPENDIX B SUPERIOR COURT OF THE DISTRICT OF COLUMBIA CIVIL DIVISION Civil Action No. 08-7763 Judge Joan Zeldon [Filed December 9, 2009] District of Columbia, Plaintiff, v. Bank of America, N.A., et al., Defendants. ) ) ) ) ) ) ) ) ) )

ORDER DENYING BANK OF AMERICAS MOTION TO DISMISS, OR IN THE ALTERNATIVE, STAY BASED ON FORUM SELECTION AND ARBITRATION CLAUSES The Court has before it (1) a Motion to Dismiss, or in the Alternative, Stay Based on Forum Selection and Arbitration Clauses submitted by Defendants Bank of America, N.A. and Bank of America Corporation (BOA or the Bank), which the Court treats as a Motion to

App. 67 Compel Arbitration under the Federal Arbitration Act (FAA);1 (2) Plaintiffs Opposition; (3) BOAs Reply;

The District of Columbia argues that BOA impermissibly cited to extrinsic evidence in support of its Motion to Compel Arbitration, thus converting it to a Motion for Summary Judgment and waiving its claim to arbitration. (Pl.s Opp. at 5-7 (citing Super. Ct. Civ. R. 12(b) (2009); Khan v. Parsons Global Servs., 380 U.S. App. D.C. 320, 324, 521 F.3d 421, 425 (D.C. Cir. 2008).) The Court however, agrees with Bank of America that its Motion to Compel Arbitration is not a 12(b)(6) motion, but a Motion to Compel Arbitration under the Federal Arbitration Act. See Friend v. Friend, 609 A.2d 1137, 1138-39 (D.C. 1992) (holding that a motion seeking dismissal of a complaint on the ground that a contract requires arbitration of the underlying dispute must be seen as an application for compelled arbitration (internal quotation marks omitted)); Wallace v. Warehouse Employees Union # 730, 482 A.2d 801, 804 (D.C. 1984) (The nature of a motion is determined by the relief sought, not by its label or caption.). Furthermore, in order for this Court to fairly adjudicate BOAs Motion, it is both proper and necessary to consider documents outside the pleadings themselves. See Yazdani v. Access ATM, 941 A.2d 429, 432-434 (D.C. 2008) (affirming the trial courts dismissal based on forum selection clause cited in a Motion to Dismiss to which the ATM Service Agreement and an affidavit of the President and CEO of Access ATM were attached). Plaintiff also contends that the Deposit Agreement and Disclosures and Treasury Services Terms and Conditions Booklet relied upon by BOA contain open-ended indemnification provisions that are in violation of the [Districts] Anti-Deficiency Act, thereby rendering the entire contract void ab initio. (Pl.s Opp. at 9 (emphasis added) (citing D.C. Code 47-355.01 et seq.).) However, in Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 449 (2006), the Supreme Court held that regardless of whether the challenge is brought in federal or state court, a challenge to the validity of the contract as a whole, and not

App. 68 (4) Plaintiffs Sur-Reply; (5) BOAs Supplemental Brief in Support of BOAs Motion to Dismiss; (6) Plaintiffs Memorandum of Points and Authorities in Opposition to BOAs Supplemental Brief; (7) Plaintiffs Supplemental Memorandum in Opposition to BOAs Supplemental Brief; (8) BOAs Supplemental Reply; and (9) Plaintiffs Sur-Reply in Opposition to BOAs Supplemental Reply. This dispute is a contract law professors dream. First, the District argues that its claims are outside the scope of the dispute resolution clauses at issue in this case. However, the Court rejected that argument for reasons previously stated on the record, which are summarized in Exhibit A. With respect to BOAs arguments that the forum available to the District is only North Carolina, and that arbitration is required in this dispute between the parties, the District asserts that the parties did not agree to arbitrate in North Carolina (a) in light of the 2005 Contract and (b) because its officials lacked the authority to agree to the arbitration and forum selection provisions. In these alternative arguments, the District is attacking only the arbitration and forum selection clauses in the 2004 Treasury Services Terms and Conditions Booklet (Treasury Services Booklet) and the 2008 Deposit Agreement and Disclosures (Deposit Agreement), and thus, they are proper arguments for this Court to address. See Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83 (2002) (The question whether the

specifically to the arbitration clause, must go to the arbitrator. Consequently, this Court did not consider Plaintiffs argument that the entire contract is void ab initio.

App. 69 parties have submitted a particular dispute to arbitration, i.e. the question of arbitrability, is an issue for judicial determination [u]nless the parties clearly and unmistakably provide otherwise. (internal quotation marks omitted) (quoting AT&T Techs., Inc. v. Commcns Workers, 475 U.S. 643, 649 (1986)); Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 403-404 (1967) (holding that Courts may address challenges to arbitration where the claim is an issue which goes to the making of the agreement to arbitrate). For the reasons given below, the Court will (1) DENY BOAs Motion to Dismiss (i.e. Motion to Compel Arbitration) and (2) DISMISS all Counts of the First Amended Complaint (Complaint) relating to BOA except Count Seven (False Claims Act). I. Background On October 31, 2008, the District of Columbia sued BOA, Assistant Bank Manager Walter Jones, and other individual defendants, including presently unknown Bank employees, alleging inter alia that BOA through Jones and other Bank employees, participated in a conspiracy that utilized an account the District maintains with BOA, and withdrew from that account fraudulent tax refunds, which caused the District damages of more than $39,000,000. The First Amended Complaint, dated December 12, 2008, contains eight counts: violation of the Uniform Commercial Code (Counts One and Two); negligence (Count Three); fraud (Count Four); negligent and intentional breach of fiduciary duties (Count Five); conversion (Count Six); violation of the Districts False Claims Act (Count Seven); and failure to adequately hire, train or

App. 70 supervise (Count Eight). The District seeks repayment of the monies lost as well as treble damages and penalties under the False Claims Act, amounting to more than $100,000,000. On January 16, 2009, BOA filed a Motion to Dismiss, or in the Alternative, Stay Based on Forum Selection and Arbitration Clauses. See note 1, supra. The Motion has been vigorously litigated by both the District of Columbia and Bank of America. Although the District has more than thirty bank accounts with BOA, this case involves only one controlled disbursement account (CDA) located in North Carolina. BOA urges the Court to find that authority to enter into binding arbitration agreements controlling this account was granted to specific District officials through a Corporate Resolution signed on January 6, 2000 by then-Chief Financial Officer (CFO) Valerie Holt. Relying upon this document, BOA contends that the District, through two Authorizations and Agreements for Treasury Services and multiple signature cards signed by various District officials, agreed to be governed by the terms of a 2008 Deposit Agreement and to adhere to the 2004 Treasury Services Terms and Conditions Booklet. (See Def.s Hrg Ex. 7 at 1; Def.s Hrg Ex. 18 at 1; Def.s Hrg Ex. 33.) BOA contends that the claims asserted by the District of Columbia in this lawsuit are subject to the arbitration clause contained in the 2004 Treasury Services Booklet and the forum selection clause of the

App. 71 2008 Deposit Agreement.2 According to BOA, these documents together form a partially integrated contract between BOA and the District of Columbia covering the CDA. The Treasury Booklets dispute resolution clause states that [a]ny dispute or controversy concerning your use of Services described in this Booklet will be decided by binding arbitration conducted in the United States of America (except as you and we expressly agree otherwise) in accordance with the United States Arbitration Act (Title 9, U.S. Code) under the Commercial Arbitration Rules of the [AAA]. (Def.s Hrg Ex. 19 at 61.) The parties do not dispute that the CDA is a Service as defined by BOAs Treasury Services Booklet. Although the forum question was not the main focus of filings by either party, BOA argued in closing that the 2008 Deposit Agreements forum selection clause, which applies to any action or proceeding, compels arbitration in North Carolina. The District of Columbia contends that it never agreed to arbitrate in North Carolina. First, it asserts that the only binding agreement between the parties is the fully integrated 2005 Contract executed by the District on November 13, 2005, which has been
2

The controlling document clause in the 2004 Treasury Services Booklet provides that the Booklet prevails over the Deposit Agreement in the event of a conflict between their terms. To assist the reader, the Court has included as Exhibit B a chronology of key documents relied on by the parties containing relevant terms and provisions.

App. 72 extended four times and contains its own dispute resolution provision.3 In the alternative, the District argues that even if the 2005 Contract does not constitute the entire agreement between the parties, it is not bound by the arbitration and forum selection provisions because none of the individuals who signed the Authorizations and Agreements for Treasury Services and signature cards had authority to agree to arbitration or forum selection. Over the course of many months, both parties submitted many additional documents to the Court.4 Despiteor perhaps because ofthe parties voluminous filings, it was by no means clear what document(s) control this dispute. To that end, the Court determined that an evidentiary hearing was required to ascertain whether the parties actually agreed to arbitrate in North Carolina.5 See Masurovsky v. Green, 687 A.2d 198, 202-04 (D.C. 1996). At numerous status conferences prior to the evidentiary hearing the Court asked many questions of both parties in order to clarify their positions and to establish an adequate record in the event of an appeal.

The District of Columbia submitted its 2005 Contract in piecemeal fashion; only the first three pages were submitted until an Order of this Court required it to be submitted in its entirety. As a result of an inferior electronic document storage system, many of the documents submitted by BOA were illegible.

At the evidentiary hearing, the parties stipulated to the language contained in each of the illegible documents on which BOA relied. Prior to this hearing, the Court could not read many of BOAs documents.

App. 73 In Masurovsky, the Court of Appeals made clear that it is for the courts, not arbitrators . . . to determine whether the parties have agreed to arbitrate a particular matter, unless the parties themselves have agreed to submit the arbitrability question itself to arbitration. Id. at 204 (citing First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 941-44 (1995)). The Masurovsky Court further held that courts should not assume that the parties agreed to arbitrate arbitrability unless there is clear and unmistakable evidence that they did so. Id. On July 24, 2009, this Court ruled that there was not sufficient evidence that the parties agreed to arbitrate arbitrability. Indeed, the parties themselves recognized this on July 14, 2009 at the Status Hearing when they agreed that it was appropriate for the Court to hold an evidentiary hearing to determine whether there is an agreement to arbitrate in North Carolina.6 In conducting the hearing the Court has followed the following guidelines established by Masurovsky: [t]he courts factual inquiry must focus on the intent of the parties at the time they entered the agreement. This intent must be sought where always intent must be sought, namely in the conduct and language of the parties and the surrounding circumstances. The document alone will not suffice. What it was intended to cover

The District of Columbia later changed its position, and argued that no hearing was necessary because the Court could resolve the issue of whether there was an agreement to arbitrate in North Carolina based on the papers already submitted to it.

App. 74 cannot be known until we know what there was to cover. Evidence in addition to the written agreement admissible for determining whether the parties contract is completely, or only partially, integrated includes agreements or negotiations prior to or contemporaneous with the adoption of a writing. Id. at 202-03 (quoting Howard Univ. v. Good Food Servs., Inc., 608 A.2d 116, 126-27 (D.C. 1992)). The Court also has considered evidence offered by the District that there was no agreement to arbitrate in North Carolina because District officials lacked authority to agree to such terms. See, e.g., District of Columbia v. Greene, 806 A.2d 216, 222 (D.C. 2002) ([A] person making or seeking to make a contract with the District is charged with knowledge of the limits of the agencys (or its agents) actual authority.). At the evidentiary hearing the Court heard from numerous witnesses who described the conduct and surrounding circumstances that led to the execution of various documents at issue in this case. BOA called the following four witnesses: Edmund A. Bianchi, Senior Vice President and Senior Client Manager, Government Banking Group; Dawn Hensler, Assistant Vice President and Senior Sales and Support Associate, Government Banking Group; Tammy Kennedy-Nichols, Senior Vice President and Senior Treasury Product Delivery Officer, Government Banking Group; and Sherri Lynne Skelly, Vice President and Senior Contract Management Document Officer. The District of Columbia called three individuals from the Office of Finance and Treasury (OFT): Lasana K. Mack, Deputy CFO and Treasurer; Gloria Vines, Banking Relations

App. 75 Manager; and Alcindor Rosier, former Associate Treasurer. The District also called Angela Long Jiggets-Bazzi, former Deputy Director of the Office of Contracting and Procurement (OCP)7 and Contracting Officer for the 2005 Contract. (See Pl.s Hrg Ex. 10.) Additionally, at the request of the Court, Dr. Natwar Gandhi, the Districts Chief Financial Officer, and Ulysses Glen, Jr., former Chief of Staff of OFT, also testified.8 II. Facts On January 6, 2000, the District formally opened a controlled disbursement account with BOA; the account, which was given the last four digits 2547,9 is located in Asheville, North Carolina. BOA asserts, and the District does not dispute, that from the mid-1980s until January 2000, the District had maintained a CDA with one or more of BOAs predecessors.

The Districts Office of the Chief Financial Officer (OCFO) is organized into a number of smaller units. The OFT and the OCP are the chief actors in this case. The Court adjourned the hearing for two days to require the District to search the files of OFT to look for any and all documents relating to the CDA, including the Treasury Services Booklet which contains the arbitration clause on which the Bank relies. The documents that were found did not include a Treasury Services Booklet, but did include numerous Deposit Agreements. These documents were provided to BOA and were the subject of direct and impeachment examination by BOA of District witnesses. BOA never asked the Court to order the District to search for documents in the OCP. (See Def.s Hrg Exs. 4, 5.)

App. 76 A CDA is a specialized business service for deposit accounts through which the District of Columbia is notified, at a specific time each business day, of the number and amount of all District-issued checks that will be presented for payment that day. The District then has an additional window of time by which it may request a stop payment on one or more of the checks presented, and/or fund the account with enough money to cover the (validly) presented checks. The service allows the District to transfer to its CDA the exact amount of money necessary to cover the checks presented and to allow idle funds to be invested elsewhere. (See Def.s Hrg Ex. 3 at 17-18, 24-26.) By providing customers the opportunity . . . to view images of checks online and decide whether or not to pay such checks[,] BOA argues that this kind of account is specially designed to assist the customer with detecting and preventing fraud. (Def.s Mot. to Dismiss at 14-15 (citing First Aff. of Edmund Bianchi at 15, attached to the Mot. as Ex. 2).) Over the course of a year, hundreds of millions of dollars flow through this account. The Districts Complaint alleges that BOA, through Assistant Bank Manager Walter Jones, aided and abetted DC Office of Tax and Revenue employee Harriette Walters by facilitating withdrawals and one or more transfers of monies that he knew to be improper from the CDA into other accounts, some of which were maintained at BOA. Specifically, the District asserts that at the request of Ms. Walters, who had given him cash gifts, Mr. Jones cashed checks on the controlled disbursement account and deposited monies improperly withdrawn from that account into other persons accounts, including accounts held by

App. 77 fictitious companies as well as Ms. Walters and her niece Jayrece Turnbull, both of whom had accounts at BOA. Mr. Jones, Ms. Walters and Ms. Turnbull are now incarcerated for their roles in the loss of millions of dollars of District taxpayer monies. According to the Complaint, BOA discovered Mr. Joness role in this scheme to steal District monies, subsequently terminated him, but never notified the District about what it had learned. As previously mentioned, BOA relies on one Corporate Resolution, numerous signature cards and two Authorizations and Agreements for Treasury Services signed by District Treasury officials in support of its Motion to Compel Arbitration. The Corporate Resolution, which on its face was applicable to more than one account, is entitled Certified Copy of Corporate Resolutions Opening and Maintaining Deposit Accounts and Services. It was signed on January 6, 2000 by Valerie Holt, then the Districts CFO. (See Def.s Hrg Ex. 5.) This Corporate Resolution stated that the Chief Financial Officer, the Deputy Chief Financial Officer/Treasurer and two Associate Treasurers were authorized to execute and to sign any . . . deposit agreement, signature card and any other documentation required by Bank to open said accounts; . . . to enter into any agreements with the Bank for the provision by Bank of various Treasury Management services to [the District of Columbia] as such officer or employee may determine, in his or her sole discretion, and to sign any and all documents and take all actions required by Bank relative to such Treasury

App. 78 Management services . . . and that any such Treasury Management agreement(s) shall remain in full force and effect until written notice to terminate given in accordance with the terms of any such agreement shall have been received by Bank and that such termination shall not affect any action taken by the Bank prior to such termination . . . . The 2000 Corporate Resolution also resolved that the Bank is designated as a depository of the [District of Columbia] and that deposit accounts . . . be opened and maintained in the name of [the District of Columbia] with Bank in accordance with the terms of the Banks Deposit Agreement . . . . On that same day (January 6, 2000) then-CFO Holt also signed a signature card naming four individuals, including herself, Dr. William Hall, Deputy CFO and Treasurer, and two Associate Treasurers as persons authorized to act under the Corporate Resolution, and verifying their respective signatures. That signature card also specified that [b]y signing below, the [District of Columbia] agrees that this account is and shall be governed by the terms and conditions set forth in the following documents as amended from time to time . . . the Deposit Agreement and Disclosures . . . . (Def.s Hrg Ex. 4, 33.) The Deposit Agreement and Disclosures (Deposit Agreement) is the source of the forum selection clause at issue in this case. All versions of the Deposit Agreement relevant to this case specify North Carolina as the location for resolution of disputes. See Exhibit B. All Deposit Agreements give the Bank the right unilaterally to amend its own Deposit Agreement. Id.

App. 79 BOA seeks enforcement of the February 2008 Deposit Agreement; it requires that [a]ny action or proceeding regarding your account must be brought in North Carolina. (Def.s Hrg Ex. 28 at 41 (emphasis added).) From 2000 until November 13, 2005, the date the 2005 Contract was executed, District officials signed a number of signature cards intending to add and subtract the names of various officials whose signatures were authorized on the account. CFO Dr. Natwar Gandhi signed one signature card in two places on or about July 25, 2000. (See Def.s Hrg Ex. 6.) His first signature merely indicated he was an authorized signatory. His second, however, on the bottom of the card, was on behalf of the District. In signing, he agree[d] . . . [t]o be governed by the terms and conditions set forth in the Deposit Agreement. (See Def.s Hrg Ex. 33.) Associate Treasurer Lasana Mack was another official who signed signature cards prior to November 13, 2005. Mr. Mack signed only as a designated account signatory on January 6, 2000 and July 25, 2000. (See Def.s Hrg Ex. 4; Def.s Hrg Ex. 6; Def.s Hrg Ex. 33.) Interim Associate Treasurer Alcindor Rosier also signed signature cards on July 25, 2000 and November 1, 2005. On July 25, 2000 he signed only as a designated signatory. (See Def.s Hrg Ex. 6.) On November 1, 2005, he signed the authorization section referring to the Deposit Agreement; however, he testified that the sole purpose for his signature was to authorize the removal of N. Anthony Calhoun as a designated signatory. (See Def.s Hrg Ex. 14.) All three of these individualsGandhi, Mack and Rosier testified at the evidentiary hearing.

App. 80 When Dr. Gandhi was shown the signature card he signed on or about July 25, 2000,10 he testified that he presumed that it was to open accounts and/or to designate who could sign checks written on the account. He indicated he had no reason to believe that this specific card was any different. He said he delegated authority to Treasury officials to sign other signature cards to open and write checks on bank accounts, but nothing more. Dr. Gandhi also explained that when he became Chief Financial Officer in June 2000, the Citys finances were a basket case. His priorities were to get a clean audit and to provide timely reports to the Control Board, which had been placed in charge of the City. He revealed that there was simply not enough time to read every document that required his signature; he relied on others to review documents before he signed them. Moreover, Dr. Gandhi testified that when signature cards are executed, the presumption is that the document means you can open an account and you can sign checks, which is the only authority he says he delegated to the Treasurer. Similarly, Associate Treasurer Lasana K. Mack testified that he did not read the fine print on the signature cards he signed. He said that because of his understanding of the purpose of a signature card (to open accounts and designate and remove designated signatories), he frequently signed signature cards without reading them. As of 2009, his understanding is
Dr. Gandhi forgot to date his signature. The July 25, 2000 date is derived from a Bank stamp used for filing purposes. (See Def.s Hrg Ex. 6.)
10

App. 81 that some signature cards contain fine print provisions indicating that the signor agrees to this and that but others do not. He was clear that at no time did he believe he was entering into a contract with BOA. Beyond this, he was clear that no one at OFT has the authority to enter into contracts. That authority, he said, is with the OCP. Alcindor Rosier testified in the same manner as Dr. Gandhi and Mr. Mack. To summarize, he also believed signature cards were to add or remove signatories and that OFT officials had no authority to enter into or modify contracts. OFT officials also signed two Authorization and Agreements for Treasury Services. On September 25, 2000, two officials from the OFT (John Robinson, Acting Deputy CFO and Treasurer and Alcindor Rosier, Interim Associate Treasurer and Bank Manager) signed the first Authorization and Agreement for Treasury Services. By virtue of their titles, the 2000 Corporate Resolution authorizes these individuals to enter into agreements for various Treasury Management Services.11 This Authorization and Agreement for Treasury Services, states in small print: [t]he Client has received Bank of Americas Treasury Services Terms and Conditions Booklet . . . and agrees to adhere to the Booklet . . . . (See Def.s Hrg Ex. 7 at 1.) It further indicates that [t]he Booklet constitutes a separate agreement between the Client and each Bank,

BOA Senior Vice President & Senior Client Manager Edmund Bianchi testified that Treasury Management Services are the same as Treasury Services. The District of Columbia did not dispute this testimony.

11

App. 82 now or in the future, when the Bank provides any Service. (Id.) As previously mentioned, the Booklet contains an arbitration clause which the Bank seeks to enforce through the Motion to Compel Arbitration now before this Court. The District of Columbia never located a copy of this Booklet in any of the files of OFT, which this Court twice ordered to be searched. There is no evidence that the Booklet was provided to Robinson or Rosier at the time they signed the Authorization and Agreement in 2000.12 On September 25, 2000, Associate Treasurer Lasana Mack signed an Authorization and Agreement Certification, certifying inter alia that the signature appearing on the Authorization and Agreement was the true signature of a person authorized to execute the form on behalf of Client, and further certifies that the undersigned has full authority to execute this Certification. (Def.s Hrg Ex. 7 at 2.)13 The form states that [i]f Client is a governmental entity, the entitys counsel must sign this Certification. Lasana Mack is not the Districts counsel, nor is he a lawyer. He obviously did not read the document because he knows he is not the entitys counsel. At the evidentiary hearing the Bank asserted that this document was superfluous, and merely a guideline. Bank witness

12

See note 16, infra concerning Rosier receiving the Booklet in connection with lockbox services four years later in 2004.

The Authorization and Agreement Certifications were not produced by BOA until after the Court ordered it to produce and file signed versions (if there were any) following the Courts discovery of blank forms in the Treasury Services Booklet provided the Court along with voluminous other filings.

13

App. 83 Sherri Lynne Skelly said the document was just a convenience to the client. On May 22, 2002, the OCFO, see note 7, supra, issued a Request for Proposal (RFP) for a Contract covering the CDA. The RFP contained language requiring the contractor to, inter alia, (1) investigate fraudulent checks, and (2) facilitate the highest quality standards and to encourage the contractor to continually improve the operation of the controlled disbursement account. (Pl.s Hrg Ex. 1, Tab 1C at PX02-000025, at 25 of 69, at PX-02-000038, at 38 of 69.) The RFP also required bidders to include Paragraph 8 entitled Dispute Resolution, which provides that [i]f a dispute arises under or relates to the contract, a claim by the Contractor shall be made in writing and submitted to the Contracting Officer for a written decision. A claim by the District against the Contractor shall be subject to a written decision by the Contracting Officer. (Pl.s Hrg Ex. 1, Tab 1C at PX-02-000048, at 48 of 69.) The same provision further defined claim to mean a written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or related to the contract. A claim arising under a contract, unlike a claim relating to that contract, is a claim that can be resolved under a contract clause that provides for the relief sought by the claimant. (Id. (emphasis added).)

App. 84 The RFP identified by name both the Contracting Officer and the Contract Administrator. The Contracting Officer was designated as the only official authorized to contractually bind the District. (Id. at PX-02-000043, at 43 of 69 (emphasis added).) By contrast, the Contract Administrator has the responsibility of ensuring that the work conforms to the requirements of the contract. (Id.) It explicitly stated that [t]he Contract Administrator shall not have authority to make changes in the scope or terms and conditions of the contract . . . . (Id.) The RFP also required that Procurement Practices Act of 1985 (PPA), D.C. Law 6-85 (codified at D.C. Code 2-301.01 et seq. (2001), formerly D.C. Code 1-1181.1 et seq. (1981)),14 be incorporated by reference. (Id. at PX-02-000047, at 47 of 69.) A pre-bid conference was held on June 12, 2002; representatives of several banks attended, including BOA. On behalf of the District there were representatives from the Treasurers Office and the OCP. On June 24, 2002 Edmund Bianchi, Senior Vice President and Senior Client Manager in the Government Banking Group at BOA, signed and submitted BOAs Technical Proposal and Cost Proposal for the CDA contract to a Contract Specialist. (See Pl.s Hrg Ex. 1, Tab 1A at PX-03-000088 to 89.) BOAs 2002 Cost Proposal contained the Districts required Dispute Resolution provision, as well as
The PPA has been amended from time to time; the Court infers that the Contract incorporates by reference the Act as amended.
14

App. 85 required provisions covering the authority granted to the Contracting Officer versus the Contract Administrator. (See Pl.s Hrg Ex. 1, Tab 1C at PX-02000043, at 43 of 69, at PX-02-000048, at 48 of 69.) BOAs Cost Proposal also contained required contract clauses incorporating the PPA. (See Pl.s Hrg Ex. 1, Tab 1C at PX-02-000047, at 47 of 69.) Mr. Bianchi testified that he included a copy of BOAs annual report and the then-current Treasury Booklet with both BOAs 2002 and 2005 submissions.15 Both the 1999 and 2004 Booklets contain a provision entitled Resolution of Disputes mandating arbitration in the United States of [a]ny dispute or controversy concerning your use of Services [which includes controlled disbursement services] described in this Booklet . . . . (Def.s Hrg Ex. 3 at 41; Def.s Hrg Ex. 19 at 61.) When he submitted these Treasury Services Booklets to the District, in both 2002 and 2005, Mr. Bianchi testified that he did not know they contained an arbitration provision.

At the evidentiary hearing, Mr. Bianchi was not consistent in the way he described submitting the Annual Report and Treasury Services Booklet in response to the RFP. The Court credits the version he gave on the afternoon of September 14, 2009, when he described in detail how he put the Treasury Services Booklet and the Annual Report in a manila envelope and attached that envelope with a rubber band or paperclip to the technical proposal, which was in a different envelope. Under these circumstances it would not be surprising if the person who received the Banks 2002 Response and 2005 Best and Final Offer (BAFO) did not understand these documents to be a formal part of the Banks bid for the Contract.

15

App. 86 In its 2002 Technical Proposal BOA included a Table of Contents that referred to a section entitled AGREEMENTS/DOCUMENTATION, which lists documents in the following order: (1) Terms and Conditions for Treasury Services; (2) Signature Card & Resolution; (3) Wire Transfer Form; (4) Automated Investment Service Agreement; (5) Bank of America Direct Profile; and (6) Electronic Positive Pay Profile. The Table of Contents noted that BOAs 2001 Annual Report was attached. (Pl.s Hrg Ex. 1, Tab. 1A at PX03-000091 to 92.) At the back of the 2002 Technical Proposal, behind a group of sample reports and investment rates and following the page entitled Agreements/ Documentation, the Bank included twelve blank forms relating to a variety of services that the Bank was offering. These included, among others, a signature card form which included a reference to the Deposit Agreement, an Authorization and Agreement for Treasury Services form and an Authorization and Agreement Certification form. The Bank also attached a resolution form to be utilized by unincorporated associations. All of these forms were blank, with no reference to the District of Columbia or the OCFO, and unsigned. (See Pl.s Hrg Ex. 1, Tab 1A at PX-03-000202 to 221.) At the evidentiary hearing, Mr. Bianchi testified that the Bank made a mistake when it attached the resolution form pertaining to unincorporated associations. He said the Bank meant to attach the corporate resolution like the one CFO Holt signed in January 2000. Between 2002 and 2005, there was an ongoing relationship between OFT and BOA. Their

App. 87 representatives met numerous times, sometimes monthly, to discuss issues arising in connection with the many accounts the District had with BOA, including the CDA. From the Banks perspective, these meetings were to develop and maintain good relationships between OFT officials and BOA. (Test. of Edmund Bianchi.) 16 Part of Mr. Bianchis responsibilities as Senior Client Manager was to promote a smooth relationship with the client, which is why they periodically met. He worked directly with OFT officials. Together, they worked out all problems that arose. In March 2005, Michael Wooten, Director of OCP, sent to every Bank that had previously bid on the Controlled Disbursement Account an Amendment to the RFP with new requirements not relevant to this dispute. (See Pl.s Hrg Ex. 1, Tab 1E.) Mr. Bianchi testified he was told to update the Banks portion of the Response only (i.e., it was not necessary to include

Mr. Bianchi testified that in September 2004, at one of these periodic meetings concerning lockbox services, he saw a Bank representative named Bob Greco give the 2004 Treasury Services Booklet to Al Rosier; however, there was no other testimony about the context in which this Booklet was given to Rosier. There is no evidence whatsoever that anyone associated the booklet given Rosier with the Controlled Disbursement Account. It certainly did not raise in the mind of anyone who attended this 2004 meeting that arbitration was being required by the Bank for any dispute concerning banking services. As previously mentioned, Mr. Bianchi, who signed the 2005 Contract, did not know that there was an arbitration provision in the Treasury Services Booklet. It is highly likely that Mr. Greco gave the Booklet to Mr. Rosier for its description of lockbox services, which was the subject of the meeting.

16

App. 88 again the contract clauses required by the District of Columbia). Mr. Bianchi testified he knew that price was eighty percent of the Districts focus. Consequently, he presented a new price proposal. The same forms that were in the 2002 Agreements/ Documentation section described above (with the exception of the Annual Report) were also included with the 2005 Response that was otherwise known as the Banks Best and Final Offer (BAFO). (See Pl.s Hrg Ex. 1, at Tab 1A.) On April 14, 2005, Sharon Anderson, Contract Specialist with OCP extended the date for the BAFO to April 25, 2005. (See Pl.s Hrg Ex. 1, at Tab 1E.) On April 25, 2005, Mr. Bianchi sent the Banks BAFO to Irene Scott, an OCP Contract Specialist. (See Pl.s Hrg Ex. 1, Tab 1B at PX-04-000003.) At some point Mr. Bianchi learned that BOA had been awarded the CDA contract. That contract, containing the merger clause, dispute resolution clause, modification clause and the clause incorporating the PPA was sent to him on OCP letterhead, and he signed it without dating it. He neither retained a copy of the document for himself nor requested the District to send a copy after its representative had signed. When he signed the 2005 Contract, he had never read its mandatory dispute resolution clause. Nor did he focus on the last sentence of Article I on page 2 of the 2005 Contract which reads: The intent of this contract is for a contractor to manage the disbursement account in accordance with the published Request for Proposal [which incorporated the PPA of 1985]. (Pl.s Hrg Ex. 1, Tab 1, at PX-05-000002, at 2 of 3.) Mr. Bianchi was not alone in his ignorance of dispute resolution requirements. Tammy Kennedy-

App. 89 Nichols, Vice President, Government Banking & Senior Treasury Product Delivery Officer, was involved in preparation of the Banks proposals in response to the RFP. When at the evidentiary hearing Ms. KennedyNichols was shown the dispute resolution clause in the Banks 2002 Response, she indicated that she had not read every word of legalese but instead focused on Treasury Services. The 2005 Contract clearly states that [t]he Contracting Officer is the only official authorized to contractually bind the District. While Al Rosier, as OFT Associate Treasurer, is named the Contract Administrator, the Contract plainly states that the Contract Administrator shall not have authority to make changes in the scope or terms and conditions of the contract . . . . (Pl.s Hrg Ex. 1, Tab 1C at PX-02000043, at 43 of 69.) Although identical language was also included in the Banks 2002 RFP Response, as late as the evidentiary hearing in September 2009, Mr. Bianchi mistakenly thought Mr. Rosier was the only individual authorized to contract. Mr. Bianchi seemed to have forgotten that he mailed the Banks 2002 Response to the RFP and 2005 BAFO to Contract Specialists with OCP, not to Mr. Rosier in OFT. He also apparently forgot that OCP, and not OFT, officials contacted him about submitting the BAFO. Mr. Bianchi also never focused on the Merger Clause in the 2005 Contract, which reads: This contract, including specifically incorporated documents, constitutes the total and entire agreement between the parties. All previous discussions, writings and agreements are merged herein. (Pl.s Hrg Ex. 1, Tab 1 at PX-05-000003, at 3 of 3.) That kind of legalese

App. 90 was not important to this Bank official whose charge was to keep a good relationship with a client that it had had since 2000.17 Ms. Angela Long Jiggets-Bazzi, who signed the contract on behalf of the OCFO on November 13, 2005, is a Contract Specialist (but not a lawyer), who worked at the OCFO from mid-2005 through most of 2006. At the time she reviewed and signed the 2005 Contract she did not know that the District already had a Controlled Disbursement Account with BOA. She did not recall any conversations with BOA or OFT officials regarding the 2005 Contract. She was clear, however, that only the Contracting Officer had authority to modify the Contract. The first time Mr. Bianchi saw the name of the Contracting Officer, Angela Long Jiggets-Bazzi, was in preparation for the evidentiary hearing in this case. Once he signed and returned the Contract to OCP, Mr. Bianchi continued working with Al Rosier and other OFT officials, and he felt no need to ask for the document. No lawyer was involved for the Bank in the preparation of the first response to the RFP or the BAFO. No lawyer reviewed the 2005 Contract before Mr. Bianchi signed it on behalf of the Bank.18 On March 6, 2006, OFT Treasurer Lasana Mack signed another Authorization and Agreement for Treasury Services. (See Def.s Hrg Ex. 18 at 1.) As
As of the last day of the hearing on September 24, 2009, OCFOs controlled disbursement account was still maintained by BOA. According to Mr. Bianchi, in 2005 it was not BOAs practice to have government contracts reviewed by legal counsel.
18 17

App. 91 previously described, this document states that the signer has received the Treasury Booklet and agrees to adhere to its terms. When he signed this document, he thought he was signing it in connection with adding signatures to two other accounts, not the controlled disbursement account. (Test. of Lasana Mack.) Beyond this, he did not read this document in its entirety; instead, he relied on staff who told him it was needed to open two bank accounts. He did not intend to modify the 2005 Contract between the parties. He was clear that the OCP is responsible for procuring and executing all contracts, and that the OFTs function is to manage cash flow, payments, borrowing, investments and the like. On that same day (March 6, 2006), Ulysses Glen, Jr., Chief of Staff for OFT, signed the Authorization and Agreement Certification. (See Def.s Hrg Ex. 18 at 2.) Mr. Glen purported to certify that the signature of Lasana Mack was a true signature of a person authorized to execute the form on behalf of the Client. (Id.) The Banks Certification form, however, says that for a governmental entity the person who should sign the form is the entitys counsel, or any other individual as permitted by the entitys organizational documents. Mr. Glen is not a lawyer, nor did BOA produce any organizational documents that demonstrated his authority to sign this Certification. When the Court ordered the District to produce its organizational documents relating to OFT, the District said there was no such document.19
Mr. Glen testified, at the request of the Court, about his signature on the 2006 Authorization and Agreement Certification. During much of his testimony, he indicated that he believed his
19

App. 92 On April 17, 2006, Deputy CFO/Treasurer Lasana K. Mack signed a signature card in two places. (See Def.s Hrg Ex. 20.) He signed first as a designated account signer, and then again, at the bottom of the page, accepting the Authorization outlined in an earlier part of the document, which indicated that [t]he deposit agreement we give you is part of your agreement with us regarding use of your account and tells you the current terms of our deposit accounts. (See Def.s Hrg Ex. 32.) Mr. Mack testified that he did not read all of the verbiage on this signature card. Like Dr. Gandhi, he said that because of the scope and volume of demands on his time, it was impossible for him to read all documents he needed to sign. Upon reviewing the documents authorization language, he did not understand that his signature meant that the OCFO was agreeing to Deposit Agreement provisions

signature simply verified that Mr. Macks signature (on the previous page) was Mr. Macks true signature. When pressed by the Court to review the language that indicated his signature actually certified that Mr. Mack was authorized to execute the form on behalf of the Client, he suddenly said he was instructed to sign this document after an impromptu meeting attended by several OFT officials and Eric Payne, Esq. (who at the time was the Director of OCP). Mr. Glen testified that Mr. Payne told him he could sign the Certification. Based on the demeanor of this witness, the Court cannot determine whether Mr. Payne actually told Mr. Glen to sign the Certification. Even if Mr. Payne did tell Mr. Glen to sign the Certification, the Court cannot determine on this record why Payne told Glen that as Chief of Staff he was authorized to sign. One possible explanation was given by Gloria Vines in her testimony described on page 22, supra.

App. 93 on forum selection and arbitration.20 Mr. Mack repeatedly testified that he was not authorized, nor did he intend to modify the 2005 contract. On December 28, 2007, Banking Manager Gloria Vines signed a signature card removing Amy Kresse as an authorized signer on the CDA. (Def.s Hrg Ex. 27.) Ms. Vines also signed below the Agreement section, adopting the Authorization, which refers to the deposit agreement. She said that her sole purpose in signing the card was to remove Ms. Kresse as a signatory. Ms. Vines also testified that at some point she had a conversation with either Al Rosier or someone from OCP about what she perceived to be conflicts between signature cards and the 2005 Contract. She indicated that she was told it was okay for OFT officials to sign signature cards because the 2005 Contract would control in any event. She admitted that she never informed the Bank that District officials realized they were signing documents that conflicted with the terms of the 2005 Contract. The 2005 Contract was extended four times. It expired on November 12, 2009 or the date any new contract was executed, whichever came first. (Pl.s Hrg Ex. 5.)

The Deposit Agreement in place on April 17, 2006 was the December 2005 version, which provided for arbitration of disputes for under one million dollars. In this case, as previously mentioned, the District claims more than 100 million dollars in damages, and as a result, the 2005 Deposit Agreements arbitration clause does not apply to this dispute.

20

App. 94 III. Analysis As the Supreme Court said in First Options of Chi., Inc. v. Kaplan, arbitration is simply a matter of contract between the parties; it is a way to resolve those disputes -- but only those disputes -- that the parties have agreed to submit to arbitration. 514 U.S. 938, 943 (1995); see District of Columbia v. Greene, 806 A.2d 216, 221 (D.C. 2002) (The FAA directs courts to place arbitration agreements on equal footing with other contracts, but it does not require parties to arbitrate when they have not agreed to do so. The purpose of Congress in [enacting the FAA] was to make arbitration agreements as enforceable as other contracts, but not more so. (citation omitted)). In determining whether the parties have agreed to arbitrate this dispute in North Carolina, the Court will examine two questions. First, the Court will address whether the 2005 Contract renders ineffective any authorization or agreement for arbitration and forum selection. Second, the Court will analyze whether the Procurement Practices Act of 1985, as amended, withheld authority from OCFO officials, who signed documents at issue in this case, to agree to arbitrate in North Carolina. Whether the 2005 Contract rendered ineffective or extinguished any previously (or subsequently) executed Authorization or Agreement depends upon the intent of the parties as reflected in the language of the 2005 Contract, the parties conduct and the surrounding circumstances. Ozerol v. Howard Univ., 545 A.2d 638, 641 (D.C. 1988) (quoting Stamenich v. Markovic, 462 A.2d 452, 456 (D.C. 1983)).

App. 95 A. The 2005 Contract Renders Ineffective Prior and Subsequent Agreements on Arbitration and Forum Selection. The 2005 Contract contains a prominently displayed21 merger clause entitled ARTICLE V TOTAL AGREEMENT, which reads as follows: This contract, including specifically incorporated documents,22 constitutes the total and entire agreement between the parties. All previous discussions, writings, and agreements are merged herein. (See Pl.s Hrg Ex. 1, Tab 1 at PX-05-000003, at 3 of 3.) Citing Howard University v. Good Food Services., Inc., 608 A.2d 116, 127 n.8 (D.C. 1992), the District of Columbia argues that the 2005 Contract is completely integrated and as a result, it supercedes [sic] all written or oral agreements within its scope[,] including any previously agreed upon dispute resolution provisions. The District further contends that the contract provision designating the Contracting Officer as the only official authorized to contractually bind the District withholds the authority of other District officials to enter into agreements with BOA that modify the terms of the 2005 Contract. (See Pl.s Hrg Ex. 1, Tab 1C, at PX-02-000043, at 43 of 69.) Bank of America counters that the inclusion of blank copies of three formsan Authorization and
The Court uses the phrase prominently displayed to contrast its presentation with a number of other clauses which were set in small print. (See Pl.s Hrg Ex. 1, Tab 1, at PX-05-000003, at 3 of 3.)
22 21

None of the specifically incorporated documents contain an executed signature card or Authorization and Agreement for Treasury Services. Id.

App. 96 Agreement for Treasury Services, a signature card and a Certified Copy of Unincorporated Association Resolutionis indicative of the fact that the parties contemplated other agreements, and as a result, the 2005 Contract is only partially integrated and may be supplemented by and with other agreements between the parties. Chief among the documents that BOA asserts survive the 2005 Contract is the 2000 Corporate Resolution, which authorizes the CFO, Deputy CFO/Treasurer and Associate Treasurers to enter into any agreements with the Bank for the provision by Bank of various Treasury Management services to this Corporation . . . . (Def.s Hrg Ex. 5; Def.s Hrg Ex. 34.) BOA also argued in closing argument that the 2006 Authorization and Agreement Certification was validly executed and therefore, the arbitration provision in the 2004 Treasury Services Booklet governs this dispute.23 When parties to a contract have executed a completely integrated written agreement, it supersedes all other understandings and agreements with respect to the subject matter of the agreement between the parties, whether consistent or inconsistent, and is viewed as the sole expression of the parties intent. Masurovsky, 687 A.2d at 202. Where a contract is completely integrated, it may not be supplemented with prior representations not ultimately included therein, even if those representations are not expressly contradicted by the contract itself. Hercules & Co. v. Shama Rest. Corp., 613 A.2d 916, 928 (D.C. 1992). By

This is contrary to the position taken by the Banks counsel in her Opening Statement.

23

App. 97 contrast, an agreement that is only partially integrated represents the agreement of the parties with respect to the matters stated therein, but . . . there may be additional consistent terms. Masurovsky, 687 A.2d at 202 (emphasis added). Merger clauses seek to exclude any prior representations, whether oral or written, between two parties and set forth the writing as the sole, controlling document governing the parties relationship. RESTATEMENT (SECOND) OF CONTRACTS 216 cmt. e (1981). Generally, contracts containing merger clauses like the one at issue here, which contains a phrase indicating that the writing is intended to constitute[ ] the total and entire agreement between the parties, are considered completely integrated contracts. 2 E. ALLAN FARNSWORTH, CONTRACTS 7.3 at 198 (1990). In all events, [t]he presence . . . of a merger clause indicating complete integration may be a significant, though not conclusive, factor in ascertaining the parties intent. Good Food Servs., Inc., 608 A.2d at 127 (internal quotation marks omitted). BOA Senior Vice President Edmund Bianchi testified, and District officials confirmed, that at no time, either prior to the award of the 2005 Contract or thereafter, did the parties discuss dispute resolution. Mr. Bianchi claimed that when he signed the 2005 Contract containing the merger clause, he believed he was agreeing to the terms of both the Districts RFP and additional terms provided by BOA. These additional terms, he testified, included those contained in the Treasury Services Booklet, which he maintains he mailed with the Banks 2002 Responses and 2005 BAFO. However, Mr. Bianchi admitted during the

App. 98 evidentiary hearing that when he signed the 2005 Contract he had no idea that an arbitration provision was included in the Banks Treasury Services Booklet. Significantly, the Treasury Booklet was not included as part of the 2002 RFP Response and the 2005 BAFO that were specifically incorporated into the 2005 Contract that Mr. Bianchi signed on behalf of BOA. Nor did he keep a copy of the 2005 Contract that he signed. Based on this and other testimony, it is clear to the Court that Mr. Bianchi was concerned with promoting the relationship that had been established between the parties both before and after he signed the 2005 Contract. He did not focus on the merger clause, dispute resolution clause, arbitration or other legal requirements of the PPA that had been incorporated into the Contract. In light of these established facts about the 2005 Contract, the Court also considered the circumstances surrounding its formation. When Dr. Gandhi was appointed to be the Districts Chief Financial Officer in June 2000, he also became head of the OCFO. That Office was created five years before in response to the Citys severe financial crisis. See Abadie v. D.C. Contract Appeals Bd., 843 A.2d 738, 746 (D.C. 2004) (citing the existence of widespread waste, fraud and abuse, no clear line of authority, cronyism, a severe lack of training and professionalism among contracting officers, and too many District employees with contracting authority as an explanation for the fact that in 1996, the citys system of procuring goods and services was in a state of chaos). In an effort to separate this newly created OCFO from the citys previous contracting system, the CFO was given independent authority to enter into contracts on behalf

App. 99 of the District. Dr. Gandhi testified before this Court that he delegated the power to enter into procurement contracts to the OCP. (See Ex. C to District of Columbias Response to Bank of Americas Praecipe in Response to the Courts Request for Additional Authorities Sept. 17, 2009 (written delegation of authority from CFO to OCP).) At the time Dr. Gandhi was appointed CFO in June 2000, the District maintained more than 1400 bank accounts. (Test. of Dr. Gandhi.) Dr. Gandhi indicated that during the first few years of his tenure, his primary concern was with the Citys annual Financial Report and clean audits. He testified that, as a result, he delegated to OFT his authority to open and maintain bank accounts. Indeed, Mr. Rosier testified that, as an Associate Treasurer, it was his responsibility to survey each of the Districts bank accounts and bring them under control. This Court finds that the Districts issuance of the 2002 RFP at issue in this case was part of the OCFOs effort to assert control over the Districts finances, including its bank accounts. An important part of that endeavor was empowering only one person to contractually bind the District and, except for claims arising under the False Claims Act, establishing only one method of resolving disputesthrough the Contracting Officer.24 The importance of the RFP was made explicit by the last sentence of Article I, of the 2005 Contract, which states: The intent of this contract is for a contractor to manage the disbursement account in accordance with

See Part III.C., infra at pg. 32 for discussion of the methods of resolving disputes arising under the False Claims Act.

24

App. 100 the published Request for Proposal. (Pl.s Hrg Ex. 1, Tab 1, at PX-05-000002, at 2 of 3.) It would be remiss of this Court not to draw attention to the fact that this controversy over controlling dispute resolution clauses is further complicated by undisputed evidence that relatively few of the documents pertaining to the CDA were thoroughly reviewed before they were signed. In this, culpability knows no bounds; senior officials at both BOA and the District of Columbia admitted that they failed to read all or part of documents which they signed or approved. Mr. Bianchi testified that he did not focus on the contract terms contained in the Districts RFP and Ms. Kennedy-Nichols, who was involved in preparation of the Banks responses to the RFP, focused on what she called treasury services, not legalese; Dr. Gandhi and Mr. Mack testified they relied on others to review BOA documents before they signed them. In the District of Columbia [a] person who signs a contract after having had an opportunity to read and understand it is bound by its provisions. Interdonato v. Interdonato, 521 A.2d 1124, 1133 (D.C. 1987) (emphasis added). Consequently, although some of the documents in this case were signed without being read, and that many were considered by their signatories to be less or more expansive than they actually were, the parties ordinarily are still bound by their terms. See Saylor v. Handley Motor Co., 169 A.2d 683, 685 (D.C. 1961). To the extent these terms are inconsistent, only a Court can resolve which terms prevail. In this case, the parties written contract containing a merger clause, the conduct of the parties and the

App. 101 surrounding circumstances, evaluated as a whole, weigh heavily in favor of the 2005 Contracts categorization as a fully integrated document with respect to dispute resolution and authority to modify. See Good Food Servs., Inc., 608 A.2d at 128 (reversing summary judgment granted without an evidentiary hearing on the disputed issue of whether the parties written agreement was a completely integrated writing, at least with respect to insurance coverage).25 However, the parties did not intend the 2005 Contract to invalidate BOA documents signed by the CFO and OFT officials to the extent such documents enabled the controlled disbursement account to remain open and be maintained by authorized persons. In other words, the Court finds that the 2005 Contract provisions governing dispute resolution and authority to modify the Contract supersede (1) any dispute resolution or forum-selection clauses the Bank claims were previously agreed upon and (2) any provision, whether located in the 2000 Corporate Resolution or elsewhere, which would otherwise allow other District officials to agree to arbitration in North Carolina (or elsewhere). Having so ruled, this Court cannot find, as Bank of America urges, that the 2006 Authorization and Agreement for Treasury Services, signed by Lasana Mack, Deputy CFO/Treasurer, was validly executed or

Even if the 2005 Contract as a whole may be characterized as a partially integrated document, this agreement would supersede any inconsistent terms of previous Agreements or Authorizations. Good Food Services, 608 A.2d at 127 N.8; RESTATEMENT (SECOND) OF CONTRACTS 213 cmt. b (1981) (Whether a binding agreement is completely integrated or partially integrated, it supersedes inconsistent terms of prior agreements.).

25

App. 102 that any signature cards executed subsequent to the 2005 Contract bound the District to the forum-selection clause within the 2008 Deposit Agreement. Following the execution of the 2005 Contract, the Deputy CFO/Treasurer plainly lacked the authority to bind the District to the dispute resolution clauses in either the 2004 Treasury Booklet or the 2008 Deposit Agreement. B. Neither the Authorization and Agreements for Treasury Services/Certification Documents nor the 2000 Corporate Resolution Bound the District to Arbitration. At the evidentiary hearing, BOA argued most of the time26 that the Authorization and Agreement Certifications were superfluous or guidelines for the convenience of the client. (Test. of Sherri Lynne Skelly.) Nevertheless, for the sake of completeness, the Court finds that, whatever their true purpose, these documents did not bind the District to arbitration. The 2000 Authorization and Agreement and accompanying Certification were superseded by the 2005 Contract. In other words, whatever authority any OFT official had to sign the 2000 Authorization and Agreement and Certification documents, that authority was extinguished by the 2005 Contract. See Part III.A., supra. Beyond this, the 2000 Authorization and Certification documents do not comply with BOAs own

After Ulysses Glen, Jr. testified, the Bank changed its position in Closing Argument to contend that the 2006 Authorization and Agreement for Treasury Services was binding on the District. See note 19, supra.

26

App. 103 procedures, as set forth on the Certification form itself. The obvious purpose of the form was for a person with authority to certify that the individual who signed the Authorization and Agreement for Treasury Services had the authority to sign the Authorization. The 2000 Certification form specifically requires that [i]f Client is a governmental entity, the entitys counsel must sign this Certification. (Def.s Hrg Ex. 7 at 2.) Contrary to this instruction however, Associate Treasurer Lasana Macks signature on the Certification was accepted by the Bank in lieu of the signature of the entitys counsel. Likewise, the obvious purpose of the 2006 Certification was to make certain that the person who signed the Authorization and Agreement for Treasury Services was authorized to do so. In 2006 however, when the client was a governmental entity, the Certification could be signed only by the entitys counsel or any other individual as permitted by the entitys organizational documents. (Def.s Hrg Ex. 18 at 1-2.) The Certification however, was not signed by the Districts counsel but by Ulysses Glen, Jr., Chief of Staff, who is not a lawyer. Significantly, BOA had no District organizational documents indicating his authority.27 Implicitly acknowledging the weakness of these Certification documents, BOA rests its authority argument on the 2000 Corporate Resolution signed by

The Court finds that Mr. Glens testimony regarding an impromptu meeting where he was informed he could sign the 2006 Certification insufficient under District law to establish that he actually had such authority.

27

App. 104 then-CFO Valerie Holt. However, to the extent that Corporate Resolution provided District officials with authority to sign documents concerning dispute resolution and forum selection, that authority was extinguished by the merger clause of the 2005 Contract. BOA argues the 2000 Corporate Resolution was included in, rather than merged into, the 2005 Contract, through the inclusion of an unsigned Unincorporated Association Resolution form among nearly a dozen other blank forms in BOAs 2002 Response to the RFP and 2005 BAFO. At the evidentiary hearing, Mr. Bianchi admitted the inclusion of this document was a mistake; he testified that the Banks 2002 Response and 2005 BAFO were supposed to contain a copy of the Banks Corporate Resolution form. To conclude that this inapplicable and unsigned blank form establishes that the arbitration clause survived the merger provision of the 2005 Contract and its dispute resolution provision is neither logical nor credible. See, e.g., Affordable Elegance Travel, Inc. v. Worldspan, L.P., 774 A.2d 320, 328 (D.C. 2001) (finding it well-settled in the District of Columbia that any ambiguity in a contract will be construed against the drafter). C. The False Claims Act (Count Seven) A reading of the Procurement Practices Act of 1985, D.C. Law 6-85 (codified at D.C. Code 2-301.01 et seq. (2001), formerly D.C. Code 1-1181.1 et seq. (1981)), which was incorporated into the 2005 Contract, leads this Court to treat Count Seven different from the other counts. As the District correctly argues, the mechanism for resolving disputes under the False

App. 105 Claims Act, which is part of the PPA, is for the Attorney General to bring an action in Superior Court. See D.C. Code 2-308.03(a)(3); 2-308.15 (2001). Since under the PPA and the 2005 Contract, which incorporates the PPA, the applicable mechanism for resolving disputes that arise under the False Claims Act is through the Court and not the Contracting Officer, this Court will not dismiss Count Seven. D. The Procurement Practices Act Withholds from District Officials the Power to Agree to Contract Clauses on Arbitration or Forum Selection. This Court has determined that there was no agreement to arbitrate or litigate in North Carolina once the parties entered into the 2005 contract.28 See Part III.A., supra. There is, however, an additional legal ground for concluding that there was no agreement to arbitrate: lack of lawful authority of OCFO representatives to agree to such a term. This is an issue the Supreme Court specifically declined to decide in Buckeye Check Cashing v. Cardegna, 546 U.S. 440, 444 n.1 (2006). There, the Court noted that [t]he issue of the contracts validity is different from the issue whether any agreement between the alleged obligor and obligee was ever concluded. Our opinion today addresses only the former, and does not speak to the issue decided
BOA argues that an agreement to arbitrate is valid because the FAA supersedes state laws lodging primary jurisdiction in another forum, whether judicial or administrative. Preston v. Ferrer, 128 S.Ct. 978, 987 (2008). However, in reaching this conclusion, the Preston Court first presumes the existence of an agree[ment] to arbitrate all questions arising under a contract. Id. at 987.
28

App. 106 in the cases cited by respondents (and by the Florida Supreme Court), which hold that it is for courts to decide . . . whether the signor lacked authority to commit the alleged principal . . . . Id. (citations omitted). The District argues that OCFO officials lacked authority to bind it to arbitration because the PPA, as amended, withholds from District officials, including the CFO, the authority to agree to the arbitration and forum selection clauses that the Bank seeks to enforce in this case.29 See D.C. Code 2-301 (2001). Specifically, D.C. Code 2-308.03 (a)(1) (2001) provides that [a]ll claims by the District government against a contractor arising under or relating to a contract shall be decided by the contracting officer . . . .30 There can be no agreement to arbitrate in North Carolina if the District official who signed the document agreeing to

During all relevant time periods, both parties agree that the CFO had the power to open and maintain bank accounts and to delegate to others the power to maintain those bank accounts. See District of Columbia Financial Responsibility and Management Assistance Act of 1995 (Control Board Act), Pub. L. No. 104-8, 302(a), 109 Stat. 97, 142-47 (1995) (amending Title I of the D.C. Code by adding 302 (a), (c) which establish the office of the Chief Financial Officer of the District of Columbia and sets forth the Offices duties) (codified as amended at D.C. Code 1-204.24a (Supp. 2009)). There also is no question that the CFO could delegate certain functions to officials in the OFT, including the Treasurer. Id. (adding 302 (e)(2)) (codified as amended at D.C. Code 1-204.24e (2) (Supp. 2009)). With respect to the Districts FCA claim, section 2-308.03 likewise limits the authority of a District official to agree to arbitrate. See Part III.C.
30

29

App. 107 arbitrate in North Carolina had no authority to do so. See Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384 (1947) (holding that anyone entering into an arrangement with the Government takes the risk of having accurately ascertained that he who purports to act for the Government stays within the bounds of his authority); District of Columbia v. Greene, 806 A.2d 216, 222 (D.C. 2002) (noting that a party contracting with the government is on constructive notice of the limits of the [government agents] authority and cannot reasonably rely on representation to the contrary (alteration original) (internal quotation marks omitted)); Coffin v. District of Columbia, 320 A.2d 301, 303 (D.C. 1974) (It is a well-recognized principle that a would-be contractor with a municipal corporation is deemed imputed with knowledge as to the scope of the contracting agencys authority.) On April 17, 1995, in response to financial problems and management inefficiencies in the government of the District of Columbia the United States Congress passed the Control Board Act. Pub. L. No. 104-8, 302(a), 109 Stat. 97, 142-47 (1995). As previously stated, that Act amended the D.C. SelfGovernment Act and established, inter alia, the Control Board31 and the OCFO. Id. at 101, 302(a). Pursuant to the Procurement Reform Amendment Act of 1996

The Control Board was established, inter alia, to facilitate the elimination of budget deficits and cash shortages, as well as to assist the District in modernizing its budget, account, personnel, procurement, information technology and management systems to ensure the maximum financial and performance accountability of the District government and its officers and employees. Control Board Act, Pub. L. No. 104-8, 2(b), 109 Stat. at 99.

31

App. 108 (Reform Act), during a control year32 the OCFO was exempt from the provisions of [the PPA], but was required to adopt the procurement rules and regulations adopted by the District of Columbia Financial Responsibility and Management Assistance Authority. Procurement Reform Amendment Act of 1996, D.C. Law 11-259, 104(c) (1996). The OCFO adopted the Control Boards procurement rules and regulations on May 15, 1997. OCFO Financial Management and Control Order No. 97-15.33 Both parties agree that through a series of Acts, the OCFOs control year authority was extended through September 30, 2005.34 Following the OCFOs adoption of the Control Boards procurement rules and regulations and the

Control year is defined as any fiscal year for which a financial plan and budget approved by the Authority . . . is in effect, and includes fiscal year 1996. District of Columbia Self-Government Act, 305(4). (See BOA (black) Binder on DC CFO Procurement Authority at Tab 3.) See District of Columbia Appropriations Act, 2002, Pub. L. No. 107-96, 111(c), 115 Stat. 923, 948 (2001) (through July 1, 2002); 2002 Supplemental Appropriations Act for Further Recovery from and Response to Terrorist Attacks on the United States, Pub. L. No. 107-206, 409, 116 Stat. 820, 848 (2002) (through July 1, 2003); Emergency Wartime Supplemental Appropriations Act, 2003, Pub. L. No. 108-11, 2302, 117 Stat. 559, 593 (through September 30, 2004); H.J. RES. 107, Pub. L. No. 108-309, 120, 118 Stat. 1137, 1140 (2004) (through November 20, 2004); District of Columbia Appropriates Act of 2005, Pub. L. No. 108-335, 336(a), 118 Stat. 1322, 1347 (2004) (retroactive to April 16, 2003 and through September 30, 2005).
34 33

32

App. 109 numerous extensions of the control year authority, the Court of Appeals decided Abadie v. D.C. Contract Appeals Board, 843 A.2d 738 (D.C. 2004). The District argues Abadie supports its position that the CFO was subject to the dispute resolution provision of the PPA in 2000. Though not addressing the issue of arbitration, Abadie supports the general proposition that the PPA was applicable to the OCFO. There, the Court of Appeals held that the Contract Appeals Board (CAB) (to which a party may appeal certain decisions of a Contracting Officer) had jurisdiction over a contract dispute between the OCFO and Business Software Associates (BSA) concerning a contract the OCFO awarded BSA in 2000, the same year then-CFO Holt signed the Corporate Resolution at issue. Abadie, 843 A.2d at 740-741. In deciding that the PPA applied to the CFO (with one limited exception not relevant to this case) the Court of Appeals rejected OCFOs contention that the CAB had no jurisdiction over the CFO in matters of contract administration. Abadie, 843 A.2d at 740, 743-746. Since there is no contention that the authority vested in the CFO in September 2000 was any different from any other control year, Abadie supports the Districts contention that when then-CFO Holt signed the Corporate Resolution in January 2000, she lacked authority to agree or to delegate the power to agree to arbitrate. What power she herself lacks, she, of course, cannot delegate to OFT officials. Similarly, when CFO Gandhi signed a signature card in 2000 agreeing to be bound by the 1999 Deposit Agreement (which required litigation of disputes in North Carolina), he too lacked the authority to agree, or delegate the power to agree, to any dispute resolution provisions outside the PPA.

App. 110 However, BOA urges that in passing the 2006 District of Columbia Appropriations Act, retroactive to April 1997, Congress intended to and did overrule Abadie. The Bank contends that the 2006 District of Columbia Appropriations Act was intended to be a sweeping, retroactive exemption and ratification of the CFOs [independent] contracting practices and procedures . . . . (Def.s Praecipe in Response to the Courts Request for Additional Authority at 5, Sept. 13, 2009.) The Act provides: The entire process used by the Chief Financial Officer to acquire any and all kinds of goods, works and services by any contractual means, including but not limited to purchase, lease or rental, shall be exempt from all of the provisions of the District of Columbias Procurement Practices Act . . . . District of Columbia Appropriations Act of 2006, 109 Pub. L. No. 115, 132, 119 Stat. 2396, 2522 (2005) (emphasis added). First, the Acts legislative history reveals no consideration of the Abadie decision, indeed the decision is not mentioned at all. Furthermore, Congress reference to the CFOs authority regarding only the acquisition of goods and services and not the administration of services contracts evidences a lack of intent to overrule Abadie. Moreover, Congress use of the word acquire together with the clarity with which it subsequently awarded the OCFO a certain degree of

App. 111 autonomy, effective October 2007,35 leads this Court to agree with the District of Columbia that in 2005, the OCFO was not exempt from PPA provisions governing dispute resolution; rather, the 2006 Appropriations Act exempted the CFO from the PPA with respect to contract acquisition, but not contract administration.36 To summarize, since the PPAs dispute resolution provision applied to the OCFO on September 25, 2000 and March 6, 2006, when the Authorization and Agreements for Treasury Services were signed, OCFO officials, including the CFO and OFT officials, lacked
In 2006, Congress passed the District of Columbia Omnibus Authorization Act (Omnibus Act), which codified the independent procurement authority the CFO possesses today. Pub. L. No. 109356, 203(a) 120 Stat. 2019, 2037-2038 (2006) codified at D.C. Code 2-301.04 (2009 Supp.); see Revised Continuing Appropriation Resolution, 2007, Pub. L. No. 110-5, 21073 (h), 121 Stat. 8, 58 (2007) (delaying the effective date of the Omnibus Act to October 16, 2007). Alternatively, even if the PPA were inapplicable, the District points out that the CFO himself limited the authority of OCFO officials to enter into contracts binding the District to arbitration. On May 20, 1996, the CFO formally adopted municipal regulations issued by the District under the PPA for contract execution. (Ex. B. to District of Columbias Response to Bank of Americas Praecipe in Response to the Courts Request for Additional Authorities Sept. 17, 2009 (CFO Financial Management and Control Order No. 96-04 (effective May 20, 1996)).) These regulations specify to whom the CFO delegated his authority to enter into a contract for the procurement of banking services, among others. District of Columbia Municipal Regulations Title 27, Chapter 12, Section 1200.01 specifies: only a contracting officer is authorized to sign and enter into a contract . . . . Thus, only a Contract Officer, and not the Treasurer or any other OFT official could agree to arbitration.
36 35

App. 112 authority to agree to arbitrate in North Carolina. Beyond this, the 2005 Contract provision incorporating the PPA37 evidences the intent of the OCFO to adhere to the PPA with respect to its dealings with BOA.38 Conclusion The Court fully respects the process of arbitration and the Supreme Court cases mandating arbitration where the parties have agreed to arbitrate.39 In this
(Pl.s Hrg Ex. 1, Tab 1A at PX-03-000047, at 47 of 69; Tab 1C at PX-03-000047, at 47 of 69 (The provisions of the following Acts, and representations and stipulations required by any of the said Acts together with the provisions of applicable regulations made pursuant to said Acts, are hereby incorporated by reference and, to the extent applicable, incorporated by reference in this contract; together with the Laws of the District of Columbia, and the Material Management Manual, effective July 1, 2974, as amended. . . . H. Procurement Practices Act of 1985, D.C. Law 6110.).) The Court notes again that the Banks 2002 Cost Proposal included the Districts required language incorporating the PPA. See pg. 15-16, supra. See Preston, 128 S.Ct. at 987; Buckeye, 546 U.S. at 443 (recognizing that 2 of the FAA embodies the national policy favoring arbitration and places arbitration agreements on equal footing with all other contracts); First Options, 514 U.S. at 945 (adopting the view that issues will be deemed arbitrable unless it is clear that the arbitration clause has not included them (internal quotation marks omitted) (quoting 1 DOMKE ON COMMERCIAL ARBITRATION 12.02, at 156 (rev. ed. Supp. 1993))); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 473 U.S. 614, 625-626 (1985) (finding that [the] preeminent concern of Congress in passing the Act was to enforce private agreements into which parties had entered, a concern which requires that we rigorously enforce agreements to arbitrate (quoting Dean Witter Reynolds
39 38 37

App. 113 case, it is clear to the Court that finance people drove the relationship between the parties. Lawyers were not involved, and individuals (on both sides) signed documents they did not read. In 1996 the District of Columbias system of procuring goods and services was in a state of chaos. See Abadie, 843 A.2d at 746. At a public oversight roundtable regarding the Districts procurement system held in May of that year, it became clear that the procurement process was seriously marred by, among other problems, the lack of a clear line of authority and inadequate training. Id. CFO Gandhi testified eloquently about the fiscal crisis and degree of chaos that plagued his Office when he became CFO in June 2000. As part of the effort to gain greater control over the Districts finances, the District issued an RFP for an account it already maintained. The RFP set forth specific terms governing the relationship and explicitly designating one person within the OCFO as having the authority to bind the District with respect to disputes relating to the Contract. With respect to Counts One through Six and Count Eight, this Court concludes that the 2005 Contract, by

Inc. v. Byrd, 470 U.S. 213, 221 (1985))); Southland Corp. v. Keating, 465 U.S. 1, 10 (1984) (In enacting 2 of the [FAA], Congress . . . withdrew the power of the states to require a judicial forum for the resolution of claims which the contracting parties agreed to resolve by arbitration.); Moses H. Cone Meml Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983) (agreeing with the Courts of Appeals articulating a healthy regard for the federal policy favoring arbitration).

App. 114 incorporating the PPA,40 established the mechanism for resolving disputes relating to the Contract for the CDA between these parties. Consequently, all prior Agreements and Authorizations with respect to dispute resolution and authority to modify the terms of the parties relationship were merged into the 2005 Contract. Subsequent BOA efforts or attempts to have OFT officials, other than the Contracting Officer, agree to arbitration in North Carolina are ineffective. In other words, under well-settled agency principles, the District cannot be bound by the ultra vires act of a contracting officer purporting to agree to arbitration in North Carolina. Greene, 806 A.2d at 220. In any event, as to all counts, including Count Seven (False Claims Act), under the PPA OFT officials lacked the authority to agree to arbitration or forum selection provisions. Beyond this, there can be no question that the CFO intended the 2005 Contract to be governed by the PPA; the Act was explicitly incorporated by reference into the 2005 Contract. Therefore, to the extent that any document signed by the CFO or OFT officials purported to authorize or agree to arbitration in North Carolina, their signatures were unauthorized and not binding on the District of Columbia. Wherefore, it is this 9th day of December 2009, hereby

40

The RFP language requiring the PPA to be incorporated into the contract was included in the Banks Cost Proposal. (See Pl.s Hrg Ex. 1, Tab 1C at PX-02-000047, at 47 of 69.)

App. 115 ORDERED that BOAs Motion to Dismiss, or in the Alternative, Stay Based on Forum Selection and Arbitration Clauses (i.e. Motion to Compel Arbitration) is DENIED; and it is FURTHER ORDERED that as they apply to BOA, all Counts in the First Amended Complaint with the exception of Count Seven (False Claims Act) are DISMISSED so that the District can pursue the substance of their other claims before the Contracting Officer;41 and it is FURTHER ORDERED that within 30 days of entry of this Order, the District of Columbia shall file a Second Amended Complaint reflecting the claims still pending against BOA and Defendants Walters, Jones and Turnbull.

/s/Joan Zeldon [SEAL] Judge Joan Zeldon (Signed in Chambers)

The District, though Counsel, told this judge that if the Court were to rule that the 2005 Contract applied to this dispute, it would place before the Contracting Officer the substance of all its claims other than its claims under the False Claims Act.

41

App. 116 Copies to: Ava Lias-Booker, Esq. Brian A. Kahn, Esq. Michelle N. Lipkowitz, Esq. Timothy Heaphy, Esq. Robert Swain, Esq. McGuire Woods LLP 1050 Connecticut Avenue, N.W. Suite 1200 Washington, DC 20036-5317 Counsel for Bank of America Walter R. Jones, Jr. Federal Register Number 39940037 Federal Medical Center Rochester P.O. Box 4000 Rochester, MN 55903 George Valentine, Esq. Paul Gallagher, Esq. Jane Drummey, Esq. Ellen Efros, Esq. Craig Farringer, Esq. Office of the Attorney General 441 4th Street, N.W. Washington, D.C. 20001 Counsel for the District of Columbia

App. 117 Exhibit A The District of Columbia argues that the counts of the Complaint are not within the scope of any of the dispute resolution provisions at issue in this case, including the one contained in the 2005 Contract. That relevant 2005 Contract clause directs that where a dispute arises under or relates to the contract . . . [a] claim by the District against the Contractor shall be subject to a written decision by the Contracting Officer. (See Pl.s Hrg Ex. 1, Tab 1A at 48 (emphasis added).) The 2005 Contract goes on to define claim to mean a written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or related to the contract. A claim arising under a contract, unlike a claim relating to that contract, is a claim that can be resolved under a contract clause that provides for the relief sought by the claimant. (Id. (emphasis added).)1 The dispute resolution clauses at issue in the Treasury Services Booklet (arbitration) and Deposit Agreement (forum selection) sweep even more broadly to include [a]ny dispute or controversy concerning [the

The Court agrees with the District of Columbia that the allegations at issue in this case do not arise under the contract.

App. 118 Districts] use of Services2 described in this [Treasury Services] Booklet . . . [,] and [a]ny action or proceeding regarding your account[,] (Deposit Agreement). (Def.s Hrg Ex. 19 at 61 (emphasis added); Ex. 28 at 41 (emphasis added).) Without citing any legal authority, the District argues that although it maintained a bank account with BOA, its claims would exist . . . whether the District had an account there or not. (Pl.s Opp. At 16.) This argument, however, is rooted in the hypothetical scenario where District accounts were in another bank and Defendant [BOA] employees, acting in the scope of their employment . . . intentionally joined a conspiracy to use Defendant Bank to launder stolen District money by depositing it into conspirators accounts with Defendant [BOA] . . . . (Id.) Regardless of whether it is true that this lawsuit might proceed even if the District had maintained the account involved here at another bank, those are not the facts of the instant case. The District of Columbia did and does maintain a Controlled Disbursement Account at BOA. And, despite the Districts contention that [i]t is [only] the cashing and/or depositing of the fraudulent checks into accounts of third parties that give rise to the allegations[,] this assertion fails to acknowledge that the fraudulent checks were cashed on and monies withdrawn from the Controlled Disbursement Account at BOA with the help of a Bank official who knew the withdrawals were improper. Since the Controlled Disbursement Account is a Service for which the District has a contractual relationship
2

Services is defined to include Controlled Disbursement Services.

App. 119 with BOA, it is clear that the monies withdrawn from it concern the Service, regard the account and relate to the contract. In other words, the Court finds that the language used in each of the clauses is broad enough to encompass claims raised in this case.3 (See Pl.s Hrg Ex. 1, Tab 1A at 48 (relates to the contract); Def.s Hrg Ex. 19 at 61 (concerning your use of Services); Def.s Hrg Ex. 28 at 41 (regarding your account).) Having ruled that each of the dispute resolution clauses is implicated, the only question for the Court is whether, in light of all the documents before it, the parties agreed to arbitrate in North Carolina.

The allegations raised in Plaintiffs First Amended Complaint support the Courts conclusion. Plaintiff asserts that [a]t all relevant times, the District maintained a bank account with Defendant Bank. That account was used to issue checks, including tax refund checks. (Pl.s First Am. Comp. 12, at 4.) Plaintiff further maintains that Defendant Bank owed a duty to the District to keep the Districts funds secure from foreseeable theft[,] but that Defendant Bank did not pay the fraudulent tax refund checks or take them for value or for collection in good faith. (Id. 99, 103, at 33-34.)

App. 120 Exhibit B Exhibit B from Order Denying Bank of Americas Motion to Dismiss, or in the Alternative, Stay Based on Forum Selection and Arbitration Clauses Chronology of Key Documents (December 9, 2009) [Fold-Out Exhibit, see next 11 pages]

Date

Document

Arbitration Clause

Forum-Selection Clause

Governing Law Provision(s)

Merger Clause

Controlling Document Clause

Severability/Amendment Clauses A determination that any part of this agreement is invalid or unenforceable will not affect the remainder of this agreement. p. 23

July 1999

1999 Deposit Agreement

None.

Any lawsuit regarding your account must be brought in a proper court in the State of North Carolina. You hereby submit to the personal jurisdiction of the State of North Carolina. p. 23

This agreement will be governed by the laws and regulations of the State of North Carolina and the United States. p. 23

This Deposit Agreement governs all deposit accounts established in North Carolina with Bank of America, N.A., or one of our predecessors, and replaces and supersedes any previous deposit agreements. p. 1

None. We may amend this agreement, including our Schedule of Fees, by posting amendments in our offices or by sending you a notice. Your continued use of your account after the effective date of any amendment as stated in the notice, or after a reasonable time if no such date is stated, will constitute your acceptance of the terms of the amendment. p. 23

Date

Document

Arbitration Clause

Forum-Selection Clause

Governing Law Provision(s)

Merger Clause

Controlling Document Clause Introduction Clause: This Booklet contains the terms and conditions under which we provide you with worldwide treasury services. It is used in conjunction with the Account Agreement which covers account terms and conditions. p. 7 By signing and returning the Authorization and Agreement form in the front of this Booklet, you agree to the General Provisions section of this Booklet, which contains the terms and terms applicable to all Services. You also agree to those portions of the Treasury Services and MicroTrade Services sections of this Booklet which contain the specific terms and conditions that relate to the Services that we provide to you. . . . Whenever you use any of the Services covered by this Booklet, you agree to be bound by these terms and conditions and to follow the procedures in the applicable Materials. p. 7 This Booklet will be controlling in the event of any conflict between it and any relevant User Documentation, any other document or written or oral statement (including but not limited to any Account Agreement, except as applicable law requires otherwise). p. 37

Severability/Amendment Clauses

July 1999

Treasury Services Booklet

Any dispute or controversy concerning your use of Services described in this Booklet will be decided by arbitration conducted in the United States of America (except as you and we expressly agree otherwise) in accordance with the United States Arbitration Act (Title 9, U.S. Code) under the Commercial Arbitration Rules of the [AAA]. p. 41

None.

[T]his Booklet is by and governed interpreted according to (i) U.S. federal law and (ii) the law of (A) the state in the [U.S.] in which the account . . . associated with such Service is located . . . . p. 38

This Booklet constitutes and represents the entire agreement between you and us regarding the Services we provide you anywhere in the world and supersedes and extinguishes all prior agreements, understandings, representations, warranties and arrangements of any nature (including requests for proposals and other sales material), whether oral or written, between you and us relating to any such Service (including any International Treasury Services Terms and Conditions booklet, but excluding the current Account Agreement). p. 37

If any provision of this Booklet or the application of any such provision to any person or set of circumstances is determined to be invalid, unlawful, void or unenforceable to any extent, the remainder of this Booklet, and the application of such provision to persons or circumstances other than those as to which it is determined to be invalid, unlawful, void or unenforceable, are not impaired or otherwise affected and continue to be valid and enforceable to the fullest extent permitted by law. p. 38

Date

Document

January 6, 2000

Certified Copy of Corporate Resolutions Opening and Maintaining Deposit Accounts and Services

Forum-Selection Governing Law Merger Clause Controlling Document Severability/Amendment Clauses Clause Provision(s) Clause Authorizes CFO, Deputy CFO/Treasurer and Associate Treasurer to on behalf of this Corporation and in its name, to execute and to sign any application, deposit agreement, signature card and any other documentation required by Bank to open said accounts to enter into any agreements with the Bank for the provision by Bank of various Treasury Management services to this Corporation as such officer or employee may determine, in his or her sole discretion, and to sign any and all documents and take all actions required by Bank relative to such Treasury Management services or the performance of the Corporations obligations thereunder, and that any such Treasury Management agreement(s) shall remain in full force and effect until written notice to terminate given in accordance with the terms of any such agreement shall have been received by Bank and that such termination shall not affect any action taken by the Bank prior to such termination to take whatever other actions or enter into whatever other agreements relating to the accounts or investment of funds in such accounts with Bank and to execute, amend, supplement and deliver to Bank such agreements on behalf of the Corporation upon such terms and conditions as such officer or employee may deem appropriate and to appoint and delegate, from time to time, such person(s) who may be authorized to enter into such agreements and take any other actions pursuant to such agreements in connection with said accounts that the officer or employee deems necessary . . . . Signed by CFO Valerie Holt. By signing below, the above named Corporation agrees that this account is and shall be governed by the terms and conditions set forth in the following documents, as amended from time to time: (1) the Deposit Agreement and Disclosures, (2) the Business Schedule of Fees, (3) the Miscellaneous Fees for Personal Accounts and the Corporation further acknowledges the receipt of these documents. ... I, the undersigned, hereby certify (1) I am the Secretary or Assistant Secretary of the Corporation named above, (2) the above named person(s) are those person(s) currently empowered to act under the Corporate resolutions authorizing this account and the other banking services provided for therein, (3) that the title and specimen signature set forth opposite the name of each person are true and genuine, and (4) the Substitute Form W-9 certification. Signature Card (makes applicable the 1999 BOA Deposit Agreement) adds (1) CFO Valerie Holt, (2) Deputy CFO/Treasurer Dr. William Hall, (3) Associate Treasurer Craig Small and (4) Associate Treasurer Lasana Mack as signatories. Signed by CFO Holt. By signing below, the above named Corporation agrees that this account is and shall be governed by the terms and conditions set forth in the following documents, as amended from time to time: (1) the Deposit Agreement and Disclosures, (2) the Business Schedule of Fees, (3) the Miscellaneous Fees for Personal Accounts and the Corporation further acknowledges the receipt of these documents. ... I, the undersigned, hereby certify (1) I am the Secretary or Assistant Secretary of the Corporation named above, (2) the above named person(s) are those person(s) currently empowered to act under the Corporate resolutions authorizing this account and the other banking services provided for therein, (3) that the title and specimen signature set forth opposite the name of each person are true and genuine, and (4) the Substitute Form W-9 certification. Signature Card (makes applicable the 1999 BOA Deposit Agreement) adds (1) CFO Dr. Natwar Gandhi, (2) Deputy CFO/Treasurer Dr. William Hall, (3) Associate Treasurer Lasana Mack and (4) Interim Associate Treasurer Alcindor Rosier as signatories. Signed by CFO Gandhi. The Client has received Bank of Americas Treasury Services Terms and Conditions Booklet (the Booklet) and agrees to adhere to the Booklet, any applicable User Documentation, set-up forms and related documents and other disclosures provided to the Client with regard to the provision of one or more Services from one or more of Bank of America Corporations subsidiary banks. The Booklet supersedes other agreement between the Client and the Bank, as described under the General Matters heading in the Booklet, with regard to the provision of Services. Authorization and Agreement (makes applicable 1999 Treasury Services Booklet) signed by Acting Deputy CFO & Treasurer John Robinson and Interim Associate Treasurer and Banking Manager Alcindor Rosier. If client is a governmental entity, the entitys counsel must sign this Certification. Signed by Lasana Mack, Associate Treasurer.

Arbitration Clause

January 6, 2000

Signature Card

July 25, 2000

Signature Card

September 25, 2000

Authorization and Agreement for Treasury Services Authorization and Agreement Certification

September 25, 2000

Date

Document

Arbitration Clause If you or we request, any controversy or claim (controversy) concerning your deposit account relationship with us, including any claim based on or arising from an alleged tort, will be determined by arbitration, reference, or trial by a judge . . . . A controversy that involves an amount in dispute of less than $1 Million will be determined by arbitration as described below. . . Since this Agreement touches and concerns interstate commerce, an arbitration under this Agreement will be conducted in accordance with the United States Arbitration Act (Title 9, United States Code), notwithstanding any choice of law provision in this Agreement. Arbitration, including selection of an arbitrator, will be conducted in accordance with the thencurrent rules for arbitration of financial services disputes of J.A.M.S. p. 67

Forum-Selection Clause

Governing Law Provision(s)

Merger Clause

Controlling Document Clause

Severability/Amendment Clauses

November 1, 2001

2001 Deposit Agreement

Any arbitration, or other lawsuit proceeding regarding your account must be brought in the state where we opened, or if different, currently maintain your account and you submit to the personal jurisdiction of that state. p. 68

Your and our rights and obligations under this Agreement are governed by and interpreted according to the laws of the state where we open your account and federal law. If state and federal law are inconsistent, federal law governs. p. 1

None.

None.

If any part of this Agreement is inconsistent with any applicable law, then to the extent the law can be amended by contract, you and we agree that this Agreement governs and that the law is amended by this Agreement. A determination that any part of this Agreement is invalid or unenforceable will not affect the remainder of this Agreement. p. 63 We may change this Agreement at any time. For example: we may add new terms and conditions and we may delete or amend existing terms and conditions. We generally send you advance notice of the change. If a proposed change is favorable to you, however, we may make the change at any time without advance notice. If you do not agree with the proposed change, you may close your account. However, you indicate your agreement to the change if you continue to use your account or keep it open. p. 1-2

Date

Document

Arbitration Clause

None. May 22, 2002 DCs Request for Proposal (Solicitation)

June 24, 2002

BOAs RFP Response

Forum-Selection Governing Law Merger Clause Controlling Document Severability/Amendment Clauses Clause Provision(s) Clause If a dispute arises under or relates to the contract, a claim by the Contractor shall be made in writing and submitted to the Contracting Officer for a written decision. A claim by the district against the Contractor shall be subject to a written decision by the Contracting Officer. . . . Claim, as used in this clause, means a written None. None. None. None. demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or related to the contract. A claim arising under a contract, unlike a claim relating to that contract, is a claim that can be resolved under a contract clause that provides for the relief sought by the [T]he claimant. . . . decision of the Contracting Officer shall be final and conclusive and not subject to review by any forum, tribunal or Government agency. p. 48 Contains unsigned Signature Card, Authorization and Agreement for Treasury Services and Authorization and Agreement Certification

Date

Document

Arbitration Clause

Forum-Selection Clause

Governing Law Provision(s)

Merger Clause

2004

Treasury Services Booklet

Any dispute or controversy concerning your use of Services described in this Booklet will be decided by binding arbitration conducted in the United States of America (except as you and we expressly agree otherwise) in accordance with the United States Arbitration Act (Title 9, U.S. Code) under the Commercial Arbitration Rules of the [AAA]. p. 61

None.

[T]his Booklet is by and governed interpreted according to (i) U.S. federal law and (ii) the law of (A) the state in the [U.S.] in which the account associated with such Service is located . . . . p. 57

[T]his Booklet constitutes and represents the entire agreement between you and us regarding the Services we provide to you . . . and supersedes and extinguishes all prior agreements, understandings, representations, warranties and arrangements of any nature (including requests for proposals and other sales material), whether oral or written, between you and us relating to any such Service (including any International Treasury Services Terms and Conditions booklet, but excluding the current Account Agreement). p. 56

Controlling Document Clause Introduction Clause: This Booklet contains the terms and conditions under which we provide you worldwide treasury services. It is used in conjunction with the Account Agreement which covers account terms and conditions. p. 6 By signing and returning the [AA] form in the front of this Booklet, you agree to the General Provisions section of this Booklet (which contains terms and conditions applicable to all Services) . . . . You also agree to those portions of the Treasury Services and Electronic Trade Services sections of this Booklet which contain the specific terms and conditions that relate to the Services we provide to you. . . . Whenever you use any of the Services covered by this Booklet, you agree to be bound by these terms and conditions, as amended from time to time, and to follow the procedures in the applicable Materials. p. 6 This Booklet will be controlling in the event of any conflict between it and any relevant User Documentation, any other document or written or oral statement (including but not limited to any Account Agreement, except as applicable law requires otherwise) . . . . p. 56

Severability/Amendment Clauses

NOTICE OF FINAL AGREEMENT. THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. p. 56

If any provision of this Booklet or the application of any such provision to any person or set of circumstances is determined to be invalid, unlawful, void or unenforceable to any extent, the remainder of this Booklet, and the application of such provision to persons or circumstances other than those as to which it is determined to be invalid, unlawful, void or unenforceable, are not impaired or otherwise affected and continue to be valid and enforceable to the fullest extent permitted by law. p. 57

Date

Document Revised RFP Response/Best and Final Offer (BAFO)

Arbitration Clause

Forum-Selection Clause

Governing Law Provision(s)

Merger Clause

Controlling Document Clause

Severability/Amendment Clauses

April 2005

Contains unsigned Signature Card, Authorization and Agreement for Treasury Services, Authorization and Agreement Certification and Certified Copy of Unincorporated Association Resolutions Opening and Maintaining Deposit Accounts and Services (Edmund Bianchi testified this was a mistake Certified Copy of Corporate Resolutions Opening and Maintaining Deposit Accounts and Services should have been included). AUTHORIZATION You begin or continue a deposit account relationship with us by giving us information about your business and by signing in the Agreement section below. The deposit agreement we give you is part of your agreement with us regarding use of your account and tells you the current terms of our deposit accounts. We may change the agreement at any time. We will inform you of changes that affect your rights and obligations. By signing below, you acknowledge receipt of the deposit agreement. The deposit agreement includes a provision for alternative dispute resolution. AGREEMENT By signing below, the organization first listed above (Organization) hereby adopts the above Authorization. Further, any person signing this Agreement on behalf of the Organization certifies that they are duly authorized to do so as evidenced by accompanying authorizations or by authorizations currently on file with us. Signature Card removes signatory Deputy CFO and Treasurer Anthony Calhoun as a signatory to the account. Signed by Alcindor Rosier. List of Specifically Incorporated Documents includes both BOAs RFP Response and the Revised RFP Response/BAFO and the following Merger Clause: This contract, including specifically incorporated documents, constitutes the total and entire agreement between the parties. All previous discussions, writings, and agreements are merged herein. p. 3 Signed by Angela Long, Contracting Officer, Office of Chief Financial Officer

November 1, 2005

Signature Card

November 13, 2005

2005 Contract

Date

Document

Arbitration Clause

Forum-Selection Clause

Governing Law Provision(s)

Merger Clause

Controlling Document Clause

Severability/Amendment Clauses If any part of this Agreement is inconsistent with any applicable law, then to the extent the law can be amended by contract, you and we agree that this Agreement governs and that the law is amended by this Agreement. A determination that any part of this Agreement is invalid or unenforceable will not affect the remainder of this Agreement. p. 75 We may change this Agreement at any time. We may add new terms and conditions and we may delete or amend existing terms and conditions. We generally send you advance notice of an adverse change. (See Notices in the Statements and Notices section.) If a change is not adverse to you, however, we may make the change at any time without advance notice. If you do not agree with the change, you may close your account. However, if you continue to use your account or keep it open, you accept and agree to the change. p. 2

December 1, 2005

2005 Deposit Agreement

[Y]ou have the right to compel us at your option, and we have the right to compel you at our option, to determine any individual Claim with a value of less than $1 Million by arbitration. All other Claims will be resolved in court by a judge without a jury. . . . [T]he arbitration of any matter involves interstate commerce and is governed by the Federal Arbitration Act, 9 U.S.C. 1 et seq. (the FAA). p. 78, 80

Any action regarding your account must be brought in the state whose law governs or controls your account. You submit to the personal jurisdiction of that state, unless a Claim is submitted to arbitration and that location is not reasonably convenient for you, in which case you and we will attempt to agree on a location, and if unable to do so, then the location will be determined by the Administrator or arbitrator. p. 81

Your and our rights and obligations under this Agreement are governed by and interpreted according to the laws of the state where we open your account and federal law. If state and federal law are inconsistent, or if state law is preempted by federal law, federal law governs. p. 4

None. The current version of this Agreement supersedes all prior versions and contains the terms governing your account. p. 2

March 6, 2006

Authorization and Agreement for Treasury Services Authorization and Agreement Certification

The Client has received Bank of Americas Treasury Services Terms and Conditions Booklet (the Booklet) and agrees to adhere to the Booklet and any applicable User Documentation from Bank of America (Bank). The Booklet supersedes other agreements between the Client and the Bank, as described under the General Matters heading in the Booklet, with regard to the provision of Services. Authorization and Agreement (makes applicable 2004 Treasury Services Booklet) signed by Deputy CFO and Treasurer Lasana Mack. If client is governmental entity, the entitys counsel, or any other individual as permitted by the entitys organizational documents may sign. Signed by Ulysses Glen, Jr., Chief of Staff

March 6, 2006

Date

Document

Arbitration Clause

Forum-Selection Clause

Governing Law Provision(s)

Merger Clause

Controlling Document Clause

Severability/Amendment Clauses

April 17, 2006

Signature Card

AUTHORIZATION You begin or continue a deposit account relationship with us by giving us information about your business and by signing in the Agreement section below. The deposit agreement we give you is part of your agreement with us regarding use of your account and tells you the current terms of our deposit accounts. We may change the agreement at any time. We will inform you of changes that affect your rights and obligations. By signing below, you acknowledge receipt of the deposit agreement. The deposit agreement includes a provision for alternative dispute resolution. AGREEMENT By signing below, the organization first listed above (Organization) hereby adopts the above Authorization. Further, any person signing this Agreement on behalf of the Organization certifies that they are duly authorized to do so as evidenced by accompanying authorizations or by authorizations currently on file with us. Signature Card adding (1) Deputy CFO/Treasurer Lasana Mack, (2) Acting Associate Treasurer George Rivera and (3) Associate Treasurer Craig Small as signatories. Signed by Lasana K. Mack. Contract Extended from 11/13/06 to 11/12/07 Signed by Eric L. Payne, Esq., DC Contracting Officer on 11/13/06

October 31, 2006

March 5, 2007

November 8, 2007

2005 Contract Extension/ Modification Commercial Segment Declaration for Public Entities 2005 Contract Extension/ Modification 2005 Contract Extension/ Modification

Signed by Deputy CFO and Treasurer Lasana K. Mack

Contract Extended from 11/13/07 to 12/13/07 Signed by Eric L. Payne, Esq., DC Contracting Officer on 11/08/07 October 10, 2007 Letter from Dorothy Whisler, Contract Specialist to Edmund Bianchi (Sr. Vice President) advising BOA of another Contract extension, notes as follows: The subject contract executed between Bank of America and the Government of the District of Columbia, Office of the Chief Financial Officer, which provides demand deposit accounts for the Controlled Disbursement Account Services . . . . Contract Extended from 12/14/07 to 11/12/08 Signed by Paul Lindquist for Eric L. Payne, Esq., DC Contracting Officer on 12/12/07 AUTHORIZATION You begin or continue a deposit relationship with us by giving us information about your business and by signing in the Agreement section below. The deposit agreement we give you is part of your agreement with us regarding use of your account and tells you the current terms of our deposit accounts. We may change the agreement at any time. We will inform you of changes that affect your rights and obligations. By signing below, you acknowledge receipt of the deposit agreement. The deposit agreement includes a provision for alternative dispute resolution. AGREEMENT By signing below, the organization first listed above (Organization) hereby adopts the above Authorization. Further, any person signing this Agreement on behalf of the Organization certifies that they are duly authorized to do so as evidenced by accompanying authorizations or by authorizations currently on file with us. Signature Card deleting Amy Kresse as signatory. Signed by Gloria Vines, Districts Banking Services

December 12, 2007

December 28, 2007

Signature Card

10

Date

Document

Arbitration Clause

Forum-Selection Clause

Governing Law Provision(s)

Merger Clause

February 2008

2008 Deposit Agreement

[Y]ou have the right to compel us at your option, and we have the right to compel you at our option, to determine any individual claim with a value of less than $1 Million by arbitration. All other claims will be resolved in court by a judge without a jury. [T]he arbitration of any matter involves interstate commerce and is governed by the Federal Arbitration Act, 9 U.S.C. 1 et seq. (the FAA). p. 40-41

Any action or proceeding regarding your account or this Agreement must be brought in the state in which the Banking Center that maintains your account is located. You submit to the personal jurisdiction of that state, unless a Claim is submitted to arbitration and that location is not reasonably convenient for you, in which case you and we will attempt to agree on a location, and if unable to do so, then the location will be determined by the Administrator or arbitrator. p. 41

This agreement, and your and our rights and obligations under this Agreement, are governed by and interpreted according to federal law and the law of the state in which the Banking Center that maintains your account is located. We generally maintain your account at the Banking Center where we open your account. However, we may transfer your account to another Banking Center in the same state or in a different state. If state and federal law are inconsistent, or if the state law is preempted by federal law, federal law governs. p. 2

If we change this Agreement, the then-current version of this Agreement supersedes all prior versions and contains the terms governing our account. p. 2

Controlling Document Clause DC Argues the following is a Controlling Document Clause: In the event of a conflict or inconsistency between this Resolving Disputes section and other terms of the Agreement or the applicable rules of the Administrator, this Resolving Disputes section will govern. If there is any conflict between this Resolving Disputes section and any other dispute provision (whether it be for arbitration, reference or any other form of dispute resolution), this Resolving Disputes section will prevail for Claims* arising out of this Agreement or the transaction(s) contemplated by this Agreement. p. 41 * Claim means any claim, dispute or controversy between you and us that in any way arises from or relates to this Agreement and your deposit relationship with us (including any renewals, extensions or modifications), except provisional or ancillary remedies from a court of competent jurisdiction, the exercise of which will not waive the right to arbitration or reference. Claim does not include any action that is brought in a small claims court or an equivalent court, provided that Claim does include any such action that is transferred, removed or appealed to a different court. p. 40

Severability/Amendment Clauses A determination that any part of this Agreement is invalid or unenforceable will not affect the remainder of this Agreement. If any part of this Agreement is inconsistent with any applicable law, then to the extent the law can be amended or waived by contract, you and we agree that this Agreement governs and that the law is amended or waived by this Agreement. p. 34 We may change this Agreement at any time. We may add new terms and conditions and we may delete or amend existing terms and conditions. We may add new accounts and services and discontinue existing accounts or services. We may convert your existing accounts and services into new accounts and services. We generally send you advance notice of an adverse change. However, we may change this Agreement without prior notice unless otherwise required by law. We do not have to notify you of changes that we believe are beneficial to you or changes that we make for security reasons. p. 2

11

Date

Document Remote Deposit Service Amendment to the Treasury Services Terms and Conditions Booklet

Arbitration Clause

Forum-Selection Clause

Governing Law Provision(s)

Merger Clause

Controlling Document Clause

Severability/Amendment Clauses

August 13, 2008

Signed by Gloria Vines, DC Banking Relations Manager

October 31, 2008 November 11, 2008

Lawsuit Filed 2005 Contract Extension/ Modification Contract Extended from 11/13/08 to 11/12/09 or date of new contract, whichever comes first Signed by Dorothy Whisler Fortune, DC Contracting Officer on 11/11/08 AUTHORIZATION You begin or continue a deposit account relationship with us by giving us information about your business and by signing in the Agreement section below. The deposit agreement we give you is part of your agreement with us regarding use of your account and tells you the current terms of our deposit accounts. We may change the agreement at any time. We will inform you of changes that affect your rights and obligations. By signing below, you acknowledge receipt of the deposit agreement. The deposit agreement includes a provision for alternative dispute resolution. AGREEMENT By signing below, the organization first listed above (Organization) hereby adopts the above Authorization. Further, any person signing this Agreement on behalf of the Organization certifies that they are duly authorized to do so as evidenced by accompanying authorizations or by authorizations currently on file with us. Signature Card adding (1) Deputy CFO/Treasurer Lasana Mack, (2) Associate Treasurer Jeff Barnette, (3) Associate Treasurer Clarice Wood, (4) Cash and Investment Manager John Henry, (5) Banking Relations Manager Gloria Vines, (6) Associate Treasurer Ritta McLaughlin and (7) Debt Manager Debra Taylor as signatories. Signed by Lasana K. Mack.

July 24, 2009

Signature Card

12

App. 121

APPENDIX C CONSTITUTION, STATUTES AND RULES United States Constitution, Article VI, Clause 2 (Supremacy Clause) This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. Title 9, United States Code, Section 2 (9 U.S.C. 2). Validity, irrevocability, and enforcement of agreements to arbitrate. A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

App. 122 Title 9, United States Code, Section 3 (9 U.S.C. 3). Stay of proceedings where issue therein referable to arbitration. If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration. D.C. Code 1-204.24a. In general. (a) Establishment. -- There is hereby established within the executive branch of the government of the District of Columbia an Office of the Chief Financial Officer of the District of Columbia (hereafter referred to as the Office), which shall be headed by the Chief Financial Officer of the District of Columbia (hereafter referred to as the Chief Financial Officer). (b) Organizational analysis. -(1) Office of Budget and Planning. -- The name of the Office of Budget and Management, established by Commissioners Order 69-96, issued March 7, 1969, is changed to the Office of Budget and Planning. (2) Office of Tax and Revenue. -- The name of the Department of Finance and Revenue, established by

App. 123 Commissioners Order 69-96, issued March 7, 1969, is changed to the Office of Tax and Revenue. (3) Office of Finance and Treasury. -- The name of the Office of Treasurer, established by Mayors Order 89-244, dated October 23, 1989, is changed to the Office of Finance and Treasury. (4) Office of Financial Operations and Systems. -The Office of the Controller, established by Mayors Order 89-243, dated October 23, 1989, and the Office of Financial Information Services, established by Mayors Order 89-244, dated October 23, 1989, are consolidated into the Office of Financial Operations and Systems. (c) Transfers. -- Effective with the appointment of the first Chief Financial Officer under 1-204.24b, the functions and personnel of the following offices are established as subordinate offices within the Office: (1) The Office of Budget and Planning, headed by the Deputy Chief Financial Officer for the Office of Budget and Planning. (2) The Office of Tax and Revenue, headed by the Deputy Chief Financial Officer for the Office of Tax and Revenue. (3) The Office of Research and Analysis, headed by the Deputy Chief Financial Officer for the Office of Research and Analysis. (4) The Office of Financial Operations and Systems, headed by the Deputy Chief Financial Officer for the Office of Financial Operations and Systems.

App. 124 (5) The Office of Finance and Treasury, headed by the District of Columbia Treasurer. (6) The Lottery and Charitable Games Control Board, established by Chapter 13 of Title 3. (d) Supervisor. -- The heads of the offices listed in subsection (c) of this section shall serve at the pleasure of the Chief Financial Officer. (e) Appointment and removal of office employees. -- The Chief Financial Officer shall appoint the heads of the subordinate offices designated in subsection (c) of this section, after consultation with the Mayor and the Council. The Chief Financial Officer may remove the heads of the offices designated in subsection (c) of this section, after consultation with the Mayor and the Council. (f) Annual budget submission. -- The Chief Financial Officer shall prepare and annually submit to the Mayor of the District of Columbia, for inclusion in the annual budget of the District of Columbia government for a fiscal year, annual estimates of the expenditures and appropriations necessary for the year for the operation of the Office and all other District of Columbia accounting, budget, and financial management personnel (including personnel of executive branch independent agencies) that report to the Office pursuant to this chapter. D.C. Code 1-204.24d. Financial Officer. Duties of the Chief

Notwithstanding any provisions of this chapter which grant authority to other entities of the District

App. 125 government, the Chief Financial Officer shall have the following duties and shall take such steps as are necessary to perform these duties: (1) During a control year, preparing the financial plan and the budget for the use of the Mayor for purposes of part B of subchapter VII of Chapter 3 of Title 47. (2) Preparing the budgets of the District of Columbia for the year for the use of the Mayor for purposes of part D of this subchapter, and preparing the 5-year financial plan based upon the adopted budget for submission with the District of Columbia budget by the Mayor to Congress. (3) During a control year, assuring that all financial information presented by the Mayor is presented in a manner, and is otherwise consistent with, the requirements of parts A through E of subchapter VII of Chapter 3 of Title 47. (4) Implementing appropriate procedures and instituting such programs, systems, and personnel policies within the Chief Financial Officers authority, to ensure that budget, accounting, and personnel control systems and structures are synchronized for budgeting and control purposes on a continuing basis and to ensure that appropriations are not exceeded. (5) Preparing and submitting to the Mayor and the Council, with the approval of the Authority during a control year, and making public-(A) annual estimates of all revenues of the District of Columbia (without regard to the source of such revenues), including proposed revenues, which shall be binding on the Mayor and the Council for

App. 126 purposes of preparing and submitting the budget of the District government for the year under part D of this subchapter, except that the Mayor and the Council may prepare the budget based on estimates of revenues which are lower than those prepared by the Chief Financial Officer; and (B) quarterly re-estimates of the revenues of the District of Columbia during the year. (6) Supervising and assuming responsibility for financial transactions to ensure adequate control of revenues and resources. (7) Maintaining systems of accounting and internal control designed to provide-(A) full disclosure of the financial impact of the activities of the District government; (B) adequate financial information needed by the District government for management purposes; (C) effective control over, and accountability for, all funds, property, and other assets of the District of Columbia; and (D) reliable accounting results to serve as the basis for preparing and supporting agency budget requests and controlling the execution of the budget. (8) Submitting to the Council a financial statement of the District government, containing such details and at such times as the Council may specify. (9) Supervising and assuming responsibility for the assessment of all property subject to assessment and

App. 127 special assessments within the corporate limits of the District of Columbia for taxation, preparing tax maps, and providing such notice of taxes and special assessments (as may be required by law). (10) Supervising and assuming responsibility for the levying and collection of all taxes, special assessments, licensing fees, and other revenues of the District of Columbia (as may be required by law), and receiving all amounts paid to the District of Columbia from any source (including the Authority). (11) Maintaining custody of all public funds belonging to or under the control of the District government (or any department or agency of the District government), and depositing all amounts paid in such depositories and under such terms and conditions as may be designated by the Council (or by the Authority during a control year). (12) Maintaining custody of all investment and invested funds of the District government or in possession of the District government in a fiduciary capacity, and maintaining the safekeeping of all bonds and notes of the District government and the receipt and delivery of District government bonds and notes for transfer, registration, or exchange. (13) Apportioning the total of all appropriations and funds made available during the year for obligation so as to prevent obligation or expenditure in a manner which would result in a deficiency or a need for supplemental appropriations during the year, and (with respect to appropriations and funds available for an indefinite period and all authorizations to create obligations by contract in advance of appropriations)

App. 128 apportioning the total of such appropriations, funds, or authorizations in the most effective and economical manner. (14) Certifying all contracts and leases (whether directly or through delegation) prior to execution as to the availability of funds to meet the obligations expected to be incurred by the District government under such contracts and leases during the year. (15) Prescribing the forms of receipts, vouchers, bills, and claims to be used by all agencies, offices, and instrumentalities of the District government. (16) Certifying and approving prior to payment of all bills, invoices, payrolls, and other evidences of claims, demands, or charges against the District government, and determining the regularity, legality, and correctness of such bills, invoices, payrolls, claims, demands, or charges. (17) In coordination with the Inspector General of the District of Columbia, performing internal audits of accounts and operations and records of the District government, including the examination of any accounts or records of financial transactions, giving due consideration to the effectiveness of accounting systems, internal control, and related administrative practices of the departments and agencies of the District government. (18) Exercising responsibility for the administration and supervision of the District of Columbia Treasurer. (19) Supervising and administering all borrowing programs for the issuance of long-term and short-term

App. 129 indebtedness, as well as other financing-related programs of the District government. (20) Administering the cash management program of the District government, including the investment of surplus funds in governmental and non-governmental interest-bearing securities and accounts. (21) Administering the centralized District government payroll and retirement systems (other than the retirement system for police officers, fire fighters, and teachers). (22) Governing the accounting policies and systems applicable to the District government. (23) Preparing appropriate annual, quarterly, and monthly financial reports of the accounting and financial operations of the District government. (24) Not later than 120 days after the end of each fiscal year, preparing the complete financial statement and report on the activities of the District government for such fiscal year, for the use of the Mayor under 1204.48(a)(4). (25) Preparing fiscal impact statements on regulations, multiyear contracts, contracts over $1,000,000 and on legislation, as required by 1-301.47a. (26) Preparing under the direction of the Mayor, who has the specific responsibility for formulating budget policy using Chief Financial Officer technical and human resources, the budget for submission by the Mayor to the Council and to the public and upon final adoption to Congress and to the public.

App. 130 (27) Certifying all collective bargaining agreements and nonunion pay proposals prior to submission to the Council for approval as to the availability of funds to meet the obligations expected to be incurred by the District government under such collective bargaining agreements and nonunion pay proposals during the year. (28) With respect to attorneys in special education cases brought under the Individuals with Disabilities Education Act in the District of Columbia during fiscal year 2006 and each succeeding fiscal year-(A) requiring such attorneys to certify in writing that the attorney or representative of the attorney rendered any and all services for which the attorney received an award in such a case, including those received under a settlement agreement or as part of an administrative proceeding, from the District of Columbia; (B) requiring such attorneys, as part of the certification under subparagraph (A) of this paragraph, to disclose any financial, corporate, legal, membership on boards of directors, or other relationships with any special education diagnostic services, schools, or other special education service providers to which the attorneys have referred any clients in any such cases; and (C) preparing and submitting quarterly reports to the Committees on Appropriations of the House of Representatives and Senate on the certification of and the amount paid by the government of the District of Columbia, including the District of Columbia Public Schools, to such attorneys.

App. 131 Former D.C. Code 2-301.04 (repealed April 8, 2011). Application of chapter. (a) Except as provided in 2-303.20, this chapter shall apply to all departments, agencies, instrumentalities, and employees of the District government, including agencies which are subordinate to the Mayor, independent agencies, boards, and commissions, but excluding the Council of the District of Columbia, District of Columbia courts, the District of Columbia Financial Responsibility and Management Assistance Authority, and (to the extent described in 1-204.26) the Office of the Chief Financial Officer of the District of Columbia, and District of Columbia Advisory Neighborhood Commissions. (b) This chapter shall apply to any contract for procurement of goods and services, including construction and legal services, but shall not apply to a contract or agreement receiving or making grants-inaid or for federal financial assistance. (c) The Council of the District of Columbia, the Corporation Counsel, Inspector General, Auditor, and Chief Financial Officer may contract for the services of accountants, lawyers, and other experts when they determine and state in writing that good reason exists why such services should be procured independently of the CPO. (d) Repealed.

App. 132 Former D.C. Code 2-308.03 (repealed April 8, 2011). Claims by District government against contractor. (a) (1) All claims by the District government against a contractor arising under or relating to a contract shall be decided by the contracting officer who shall issue a decision in writing, and furnish a copy of the decision to the contractor. (2) The decision shall be supported by reasons and shall inform the contractor of his or her rights as provided in this subchapter. Specific findings of fact are not required, but, if made, shall not be binding in any subsequent proceeding. (3) The authority of this subsection shall not apply to a claim or dispute for penalties or forfeitures prescribed by statute or regulation which another District government agency is specifically authorized to administer, settle, or determine. (4) This subsection shall not authorize the contracting officer to settle, compromise, pay, or otherwise adjust any claim involving fraud. (b) The decision of the contracting officer shall be final and not subject to review unless an administrative appeal or action for judicial review is timely commenced as authorized by 2-309.04. (c) Nothing in this subchapter shall prohibit the contracting officer from including a clause in District government contracts requiring that pending final decision of an appeal, action, or final settlement, a

App. 133 contractor shall proceed diligently with performance of the contract in accordance with the decision of the contracting officer. D.C. Code. 2-381.02 (formerly codified as D.C. Code 2-308.14). False claims liability, treble damages, costs, and civil penalties; exceptions. (a) Any person who commits any of the following acts shall be liable to the District for 3 times the amount of damages which the District sustains because of the act of that person. A person who commits any of the following acts shall also be liable to the District for the costs of a civil action brought to recover penalties or damages, and shall be liable to the District for a civil penalty of not less than $5,500, and not more than $11,000, for each false or fraudulent claim for which the person: (1) Knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval; (2) Knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim; (3) Has possession, custody, or control of property or money used, or to be used, by the District and knowingly delivers, or causes to be delivered, less than all of that money or property; (4) Is authorized to make or deliver a document certifying receipt of property used, or to be used, by the District and, intending to defraud the District, makes or delivers the receipt without completely knowing that the information on the receipt is true;

App. 134 (5) Knowingly buys, or receives as a pledge of an obligation or debt, public property from an officer or employee of the District who lawfully may not sell or pledge property; (6) Knowingly makes, uses, or causes to be made or used, a false record or statement material to an obligation to pay or transmit money or property to the District, or knowingly conceals or knowingly and improperly avoids or decreases an obligation to pay or transmit money or property to the District; (7) Conspires to commit a violation of paragraph (1), (2), (3), (4), (5), or (6) of this subsection; (8) Is a beneficiary of an inadvertent submission of a false or fraudulent claim to the District, subsequently discovers the falsity of the claim, and fails to disclose the false or fraudulent claim to the District; or (9) Is the beneficiary of an inadvertent payment or overpayment by the District of monies not due and knowingly fails to repay the inadvertent payment or overpayment to the District. (b) Notwithstanding subsection (a) of this section, the court may assess not more than two times the amount of damages which the District sustains because of the act of the person, and there shall be no civil penalty, if the court finds all of the following: (1) The person committing the violation furnished officials of the District responsible for investigating false claims violations with all information known to that person about the violation within 30 days

App. 135 after the date on which the person first obtained the information; (2) The person fully cooperated investigation by the District; and with any

(3) At the time the person furnished the District with information about the violation, no criminal prosecution, civil action, or administrative action had commenced with respect to the violation, and the person did not have actual knowledge of the existence of an investigation into the violation. (c) Liability pursuant to this section shall be joint and several for any act committed by 2 or more persons. (d) This section shall not apply to claims, records, or statements made pursuant to those portions of Title 47 that refer or relate to taxation. D.C. Code 2-381.03 (formerly codified as D.C. Code 2-308.15). Attorney General for the District of Columbia investigations and prosecutions; powers of prosecuting authority; civil actions by individuals as qui tam plaintiffs; jurisdiction of courts. (a) The Attorney General for the District of Columbia shall investigate, with such assistance from other District agencies as may be required, violations pursuant to 2-381.02 involving District funds. If the Attorney General for the District of Columbia finds that a person has violated or is violating the provisions of 2-381.02, the Attorney General for the District of Columbia may bring a civil action against that person in the Superior Court of the District of Columbia.

App. 136 (b)(1) A person may bring a civil action for a violation of 2-381.02 for the person and for the District. The action shall be brought in the name of the District. The person bringing the action shall be referred to as the qui tam plaintiff. The action may be dismissed only if the court and the Attorney General for the District of Columbia give written consent to the dismissal and their reasons for consenting. (2) A complaint filed by a qui tam plaintiff pursuant to this subsection shall be filed in the Superior Court in camera and may remain under seal for up to 180 days, unless the seal is extended by the court. No service shall be made on the defendant until after the complaint is unsealed. (3) On the same day as the complaint is filed pursuant to paragraph (2) of this subsection, the qui tam plaintiff shall serve the Attorney General for the District of Columbia by mail, return receipt requested, with a copy of the complaint and a written disclosure of substantially all material evidence and information the person possesses. (4) Within 180 days after receiving a complaint alleging violations involving District funds, the Attorney General for the District of Columbia shall do either of the following: (A) Notify the court that he or she intends to proceed with the action, in which case the seal may be lifted unless, for good cause shown, the court continues the seal; or (B) Notify the court that he or she declines to take over the action, in which case the seal shall

App. 137 be lifted and the qui tam plaintiff shall have the right to conduct the action. (5) Upon a showing of good cause, the Attorney General for the District of Columbia may move the court for extensions of the time during which the complaint remains under seal. (6) When a qui tam plaintiff brings an action pursuant to this subsection, no person other than the District may intervene or bring a related action based on the facts underlying the pending action. (7) The District is not liable for expenses which a qui tam plaintiff incurs in bringing an action under this section. (c)(1) No person may bring an action pursuant to subsection (b) of this section against a member of the Council of the District of Columbia, a member of the District judiciary, or an elected official in the executive branch of the District, if the action is based on evidence or information known to the District when the action was brought. (2) No person may bring an action under subsection (b) of this section which is based upon allegations or transactions which are the subject of a civil suit or an administrative civil money penalty proceeding in which the District is already a party. (c-1)(1) Except as provided in paragraph (2) of this subsection, a court shall dismiss an action or claim under this section if substantially the same allegations or transactions as alleged in the action or claim were publicly disclosed:

App. 138 (A) In a criminal, civil, or administrative hearing in which the District or its agent is a party; (B) In a report, hearing, audit, or investigation by the Council of the District of Columbia, the Auditor of the District of Columbia, the Inspector General of the District of Columbia, or other District agency; or (C) By the news media. (2) A court shall not dismiss an action or claim as provided in paragraph (1) of this subsection if: (A) The action is brought by the Attorney General for the District of Columbia; (B) The District is opposed to the dismissal; or (C) The action is brought by a qui tam plaintiff and the qui tam plaintiff is an original source of the information. (d)(1) If the District proceeds with the action, it shall have the primary responsibility for prosecuting the action, and shall not be bound by an act of the qui tam plaintiff. The qui tam plaintiff shall have the right to continue as a party to the action, subject to the limitations set forth in paragraph (2) of this subsection. (2)(A) The District may dismiss the action notwithstanding the objections of the qui tam plaintiff if the qui tam plaintiff has been notified by the District of the filing of the motion to dismiss and the court has provided the qui tam plaintiff with an opportunity for a hearing on the motion.

App. 139 (B) The District may settle the action with the defendant, notwithstanding the objections of the qui tam plaintiff, if the court determines, after a hearing providing the qui tam plaintiff an opportunity to be heard, that the proposed settlement is fair, adequate, and reasonable under all the circumstances. Upon a showing of good cause, the hearing may be held in camera. (C) Upon a showing by the District that unrestricted participation during the course of the litigation by the qui tam plaintiff would interfere with or unduly delay the Districts prosecution of the case, or would be repetitious, irrelevant, or for purposes of harassment, the court may, in its discretion, impose limitations on the qui tam plaintiffs participation, such as: (i) Limiting the number of witnesses the qui tam plaintiff may call; (ii) Limiting the length of the testimony of such witnesses; (iii) Limiting the qui tam plaintiffs crossexamination of witnesses; or (iv) Otherwise limiting the participation by the qui tam plaintiff in the litigation. (D) Upon a showing by the defendant that unrestricted participation during the course of the litigation by the qui tam plaintiff would be for purposes of harassment or would cause the defendant undue burden or unnecessary expense, the court may, in its discretion, limit the participation by the qui tam plaintiff.

App. 140 (e)(1) If the District elects not to proceed and the qui tam action was proper pursuant to subsection (c) of this section, the qui tam plaintiff shall have the same right to conduct the action as the Attorney General for the District of Columbia would have had if he or she had chosen to proceed pursuant to subsection (b) of this section. If the District so requests, the District shall be served with copies of all pleadings filed in the action. (2) When the qui tam plaintiff proceeds with the action, the court, without limiting the status and rights of the qui tam plaintiff, may nevertheless permit the District to intervene at a later date upon a showing of good cause. (f)(1)(A) If the District proceeds with an action brought by a qui tam plaintiff pursuant to subsection (b) of this section, the qui tam plaintiff, subject to subparagraph (B) of this paragraph, shall receive at least 15%, but not more than 25%, of the proceeds of the action or settlement of the claim, depending upon the extent to which the qui tam plaintiff substantially contributed to the prosecution of the action. (B) Where the action is one which the court finds to be based primarily on disclosures of specific information, other than information provided by the qui tam plaintiff, relating to allegations or transactions in a criminal, civil, or administrative hearing, in a report, hearing, audit, or investigation conducted by a District agency, or from the news media, the court may award such sums as it considers appropriate, but in no case more than 10% of the proceeds, taking into account the significance of the

App. 141 information and the role of the qui tam plaintiff in advancing the case to litigation. (C) Any payment to a qui tam plaintiff under this paragraph shall be made from the proceeds of the judgment or the settlement of the claim. Any qui tam plaintiff receiving a payment under this paragraph shall also receive an amount for reasonable expenses which the court finds to have been necessarily incurred, plus reasonable attorneys fees and costs. All such expenses, fees, and costs shall be awarded against the defendant. (2)(A) If the District does not proceed with an action brought by a qui tam plaintiff pursuant to subsection (b) of this section, the qui tam plaintiff shall receive an amount which the court decides is reasonable for collecting the civil penalty and damages; provided, that the amount shall be not less than 25%, and not more than 30%, of the proceeds of the action or settlement of the claim. (B) Any payment to a qui tam plaintiff under this paragraph shall be made from the proceeds of the judgment or the settlement of the claim. Any qui tam plaintiff receiving a payment under this paragraph shall also receive an amount for reasonable expenses which the court finds to have been necessarily incurred, plus reasonable attorneys fees and costs. All such expenses, fees, and costs shall be awarded against the defendant.

App. 142 (3) The portion of the recovery not distributed pursuant to paragraphs (1) and (2) of this subsection shall be paid to the District treasury. (4)(A) Whether or not the District proceeds with the action, if the court finds that the action was brought by a qui tam plaintiff who planned and initiated the violation of 2-381.02 upon which the action was brought, then the court may, to the extent the court considers appropriate, reduce the share of the proceeds of the action which the qui tam plaintiff would otherwise receive under paragraph (1) or (2) of this subsection, taking into account the role of the qui tam plaintiff in advancing the case to litigation and any relevant circumstances pertaining to the violation. (B) If the qui tam plaintiff is convicted of criminal conduct arising from his or her role in the violation of 2-381.02, the qui tam plaintiff shall be dismissed from the civil action and shall not receive any share of the proceeds of the action. Such dismissal shall not prejudice the right of the District to continue the action, represented by the Attorney General for the District of Columbia. (5) If the District does not proceed with the action and the qui tam plaintiff conducts the action, the court may award to the defendant reasonable attorneys fees and expenses necessarily incurred if the defendant prevails in the action and the court finds that the claim of the qui tam plaintiff was frivolous, vexatious, or brought solely for purposes of harassment.

App. 143 (6)(A) Notwithstanding subsection (b) of this section, the District may elect to pursue a violation of 2-381.02 through any alternate remedy available to the District, including an administrative proceeding to determine a civil money penalty. If any such alternate remedy is pursued in another proceeding, the qui tam plaintiff shall have the same rights in such proceeding as such person would have had if the qui tam action had continued under this section. Any finding of fact or conclusion of law made in such other proceeding that has become final shall be conclusive on all parties to an action under this section. (B) For the purposes of this paragraph, a finding or conclusion is final if it has been finally determined on appeal to the appropriate court, if all time for filing such an appeal with respect to the finding or conclusion has expired, or if the finding or conclusion is not subject to judicial review. (g)(1) Whether or not the District proceeds with the action, upon a showing by the District that certain actions of discovery by the qui tam plaintiff would interfere with the investigation or prosecution of a criminal or civil matter by the District or a criminal matter in the District of Columbia arising out of the same facts, the court may stay such discovery for a period of not more than 60 days. (2) Upon a further showing that the District or the United States Attorneys Office for the District of Columbia has pursued the criminal or civil investigation or proceedings with reasonable diligence and any proposed discovery in the qui tam

App. 144 action will interfere with the ongoing criminal or civil investigation or proceedings, the court may extend the stay of discovery provided for in paragraph (1) of this subsection. (3) Any showing provided for under this subsection shall be conducted in camera. D.C. Appropriations Act 2006, 109 Pub. L. No. 115, 132, 119 Stat. 2396, 2522 (2005) SEC. 132. The entire process used by the Chief Financial Officer to acquire any and all kinds of goods, works and services by any contractual means, including but not limited to purchase, lease or rental, shall be exempt from all of the provisions of the District of Columbias Procurement Practices Act: Provided, That provisions made by this subsection shall take effect as if enacted in D.C. Law 11-259 and shall remain in effect until September 30, 2006. American Arbitration Association, Commercial Arbitration Rules, Rule R-7. R-7. Jurisdiction. (a) The arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of the arbitration agreement. (b) The arbitrator shall have the power to determine the existence or validity of a contract of which an arbitration clause forms a part. Such an arbitration clause shall be treated as an agreement independent of the other terms of the contract. A decision by the

App. 145 arbitrator that the contract is null and void shall not for that reason alone render invalid the arbitration clause. (c) A party must object to the jurisdiction of the arbitrator or to the arbitrability of a claim or counterclaim no later than the filing of the answering statement to the claim or counterclaim that gives rise to the objection. The arbitrator may rule on such objections as a preliminary matter or as part of the final award. Financial Management and Control Order No. 9715 Chapter 1, Section A.3 The Authority is statutorily exempted from adhering to D.C. Code procurement provisions and, because the Authority is not an agency of the United States government, the Armed Services Procurement Act of 1947 and the Federal Property and Administration Service Act of 1949 do not apply to the Authoritys contracting activities. Likewise, neither the Federal Acquisition Regulations nor the District of Columbia procurement regulations apply to the Authoritys contracting activities. Chapter 1, Section B.3 The Authoritys contracting authority is, by statute, vested in the Executive Director, who may from time to time delegate specific contracting and procurement responsibility and authority to various members of the Authoritys staff. When authority is delegated to a

App. 146 staff member to serve as Contracting Officer for a particular contract or category of procurement, the delegation shall be in writing. All references herein to the Executive Director shall be deemed to include any such delegations.

App. 147

APPENDIX D

Terms and Conditions Treasury Services

Bank of America

App. 148 *** [p.7] Introduction Thank you for choosing the Bank of America Corporation group of financial institutions for your worldwide treasury management business needs. We appreciate the opportunity to serve you. If you have any questions about our extensive array of treasury services (including the locations where each service is available) or about this Booklet, please contact your Treasury Services representative. Capitalized terms used in this Booklet are defined in the Glossary. The terms we, us and our refer to each of the Bank of America Corporation subsidiary banks which provide you with a particular Service under the terms of this Booklet. This Booklet contains the terms and conditions under which we provide you with the worldwide treasury services. It is used in conjunction with the Account Agreement which covers account terms and conditions. Please read this Booklet carefully and keep it for your records. By signing and returning the Authorization and Agreement form in the front of this Booklet, you agree to the General Provisions section of this Booklet, which contains the terms and conditions applicable to all Services. You also agree to those portions of the Treasury Services and MicroTrade Services sections of this Booklet which contain the specific terms and conditions that relate to the

App. 149 Services that we provide to you. If you would like an additional Service, it will be covered by the terms and conditions of this Booklet once we have approved your use of the Service. You may begin using the Service when we have received all required and properly executed forms and you have successfully completed any testing or training requirements. Whenever you use any of the Services covered by this Booklet, you agree to be bound by these terms and conditions and to follow the procedures in the applicable Materials. We may change the terms and conditions upon 30 days prior written notice to you. Your continued use of any Service, after the effective date of the change, will indicate your agreement to the change. *** [p.17] Controlled Disbursement Our Controlled Disbursement Services provide information to you each Business Day so that you can fund the total amount of (1) controlled disbursement checks presented that Business Day, and (2) where the option is available, controlled disbursement ACH debits and any other electronic debits to which we agree and which are posted that Business Day. Accounts We make the Controlled Disbursement Services available through multiple Controlled

App. 150 Disbursement Points in different parts of the United States of America. These Points are identified on the List of Banks and Services. Subject to our approval in each case, you may use such Service through one or more of those Points. For each Controlled Disbursement Point you use, you maintain one or more Deposit Accounts with us. We may restrict your use of any Controlled Disbursement Service with regard to checks issued to individuals. For certain Controlled Disbursement Points, as more fully described in the applicable User Documentation, you may (1) draw checks bearing those respective Points routing numbers directly on a Deposit Account, and (2) where the option is available, initiate or authorize third parties to initiate ACH debits and, subject to special agreement, other electronic debits to the Deposit Account. (For electronic debits to a Deposit Account, you must use the appropriate funds transfer Service approved by us.) For a certain other Controlled Disbursement Point, we authorize you to draw checks on accounts we maintain at such Point; then we debit your Deposit Account(s) in the amounts(s) of the checks which are paid. With these Services, you have no account or contractual relationship with such Controlled Disbursement Point. You will not access our accounts maintained at such Point in any other manner, including, but not limited to, automatic debit arrangements cleared through an automated clearing house network or through wire transfers.

App. 151 On each Business Day, we will inform you by the time specified in the applicable User Documentation of the total amount of debits presented for payment that day at or through a Controlled Disbursement Point and any other amounts required to be deposited in the corresponding Deposit Account(s) to cover such debits. On each such Business Day, prior to the time stated in the applicable User Documentation, you must ensure that sufficient Collected and Available Funds are on deposit in the Deposit Account(s) to cover such amounts. If we attempt to post a debit to a Deposit Account for the amount due and determine there are insufficient funds in the Deposit Account, we may dishonor or instruct the pertinent Controlled Disbursement Point to dishonor some or all of the checks then pending payment and/or, as appropriate, return or reject any electronic debit pending settlement. We may, however, in our sole discretion, allow an overdraft so some or all of such checks or electronic debits will be paid or settled. If we do so, we are not obligated to allow any such overdraft in the future. If, for any reason, we fail to provide you with timely notice of the required funding amount for a Deposit Account, and if you fund such Deposit Account according to the procedures (including funding amount and time) described in the applicable User Documentation, we will post to the Deposit Account, or instruct the Controlled Disbursement Point to post to our account, all checks presented for payment, and electronic debits received for settlement, that day. If the required funding amount nonetheless exceeds the amount funded by you and you have insufficient funds in the Deposit

App. 152 Account to cover the required amount, we will overdraw the Deposit Account and advance funds to cover the excess. [p.18] If we advance our own funds, you will repay us by the cutoff time specified in the applicable User Documentation on the next Business Day along with interest on such funds as specified in our schedule of charges for business account services or as otherwise agreed. If you do not, we may dishonor, or instruct the Controlled Disbursement Point to dishonor, some or all of the checks then pending final payment and/or, as appropriate, return or reject any electronic debit pending settlement even if the Deposit Account has sufficient Collected and Available Funds to cover such debits. We may require you to maintain a specified minimum amount in any Deposit Account for which we permit you to use automated clearing house transfers to fund that Account. If you use facsimile signatures on checks drawn on an account at a Controlled Disbursement Point, your use of such signatures is subject to the Facsimile Signatures section of this Booklet. Stop Payments You may request stop payments on checks drawn under a Controlled Disbursement Service by following the procedures specified in the applicable User Documentation or applicable Account Agreement. Also, you may use an Online Stop Payment Service, which is subject to the Online Stop Payment section of this Booklet. If you use

App. 153 telephone, mail or facsimile transmission to request a stop payment, you agree that your Stop Payment Request is subject to the terms described in the Account Agreement for requesting stops by telephone or mail. If some, but not all, of the information in your Stop Payment Request matches a check which has been presented for payment (for example, the Magnetic Ink Character Recognition (MICR) serial numbers match and the dollar amounts do not match), we may contact you to request a decision on whether or not to pay the check. If any such suspect check is not to be paid, you must promptly instruct as not to pay, or to direct a Controlled Disbursement Point not to pay, the suspect check. If you do not, the suspect check may be paid. Disbursement Image Our Disbursement Image Services will make available to you digital images of checks and drafts paid against specified accounts. Such images may be made available to you by online transmission or by CD-ROMs containing images you may access using image CD-ROM Software. Check and draft images will be made available to you at such times as you request and to which we agree. If an image of a check or draft is missing or is illegible, we will provide you with a microfilm copy upon your request. Your request must include the account number, the check serial number, the exact amount (dollars and cents) of the payment and the date the payment was made. We may

App. 154 assess a fee for copies provided to you. We will not be liable for failure to provide copies by a given time or for failure to provide copies we are not reasonably able to provide. Notwithstanding the Limitation of Liabilities section of this Booklet, we will not be liable for damages arising under any Disbursement Image Service in excess of the amount of the check, draft or miscellaneous debit giving rise to your damage claim. Any such claim must include the account number, the check serial number, the exact amount (dollars and cents) of the payment, the date the payment was made, the name of the payee, a detailed explanation of how the claimed loss occurred and the name, address and phone number of the payee to whom you cannot prove payment was made. *** [p.37] Facsimile Signatures In some countries, businesses use a machineimprinted and/or rubber-stamped facsimile signature (each generally called a facsimile signature) as a convenient method for signing checks, documents and other items. If you choose to use a facsimile signature, you must provide us with a specimen facsimile signature of each person authorized to do so. You are responsible for any withdrawal from your account that bears or appears to us to bear your

App. 155 facsimile signature, regardless of by whom or by what means the signature was placed on the check. If you choose to use a facsimile signature, you are responsible even if you have not presented us with a specimen facsimile signature, or if the size, color or style of the check, or the size, color or style of the facsimile signature is different from that of the check or facsimile signature you use. We may pay the withdrawal and debit your account for it. You agree to compensate us for all losses, claims, damages or expenses, including Legal Expenses, that result from our payment of a withdrawal bearing a facsimile that resembles your facsimile signature. You are responsible for taking security measures and implementing procedures to prevent the forgery, theft or fraudulent or unauthorized use of your facsimile signature. General Matters Agreement This Booklet constitutes and represents the entire agreement between you and us regarding the Services we provide you anywhere in the world and supersedes and extinguishes all prior agreements, understandings, representations, warranties and arrangements of any nature (including requests for proposals and other sales material), whether oral or written, between you and us relating to any such Service (including any International Treasury Services Terms and Conditions booklet, but excluding the current Account Agreement). This

App. 156 Booklet will be controlling in the event of any conflict between it and any relevant User Documentation, any other document or written or oral statement (including but not limited to any Account Agreement, except as applicable law requires otherwise). Current User Documentation is available upon request. This Booklet is binding upon each of your and our respective successors and permitted assigns. You may with our prior written consent, assign any of your rights or duties described in this Booklet. This Booklet is not for the benefit of any other person, and on other person has any right under this Booklet against you or us, and nothing contained in this Booklet creates any agency, fiduciary, joint venture or partnership relationship between you and us. NOTICE OF FINAL AGREEMENT. THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. General Obligations We are responsible only for performing the Services expressly provided for in this Booklet. We may contract with an outside vendor in providing any of these Services.

App. 157 With respect to any Service, we will provide you with assistance by telephone at the numbers and during the hours specified by us in writing from time to time. *** [p.41] Representations and Warranties On and as of each day we provide any Service to you, you represent and warrant to us that: P Your Agreement to each provision contained in this Booklet is a duly authorized, legal, valid, binding and enforceable obligation; The debiting of any account as provided in this Booklet is not inconsistent with any restriction on the use of that account; All approvals and authorizations required to permit the execution and delivery of the Agreement and Authorization form and any other necessary documentation, and the performance and consummation by you of the transactions contemplated under each Service, have been obtained, including but not limited to due authorization from each applicable third party to allow you to transfer funds and access information from such partys account; and Your performance of your obligations will not violate any law, regulation, judgment, decree or order applicable to you.

App. 158 Resolution of Disputes We try to resolve our clients Service problems or disputes as quickly as possible. In most cases, we can resolve a problem by telephone. Any dispute or controversy concerning your use of Services described in this Booklet will be decided by arbitration conducted in the United States of America (except as you and we expressly agree otherwise) in accordance with the United States Arbitration Act (Title 9, U.S. Code) under the Commercial Arbitration Rules of the American Arbitration Association. Under these procedures, the dispute is submitted to a neutral person for determination in place of a trial before a judge or jury. Judgment upon the award made by the arbitrator may be entered in my court having jurisdiction. Without regard to the foregoing, any dispute or controversy that arises from and Electronic Funds Transfer Service will be decided by a judge without a jury in a United States of America federal or state court (except as you and we expressly agree otherwise in writing). This means that in these instances you waive any right to a trial by jury in any action or proceeding and agree that such action or proceeding will be tried before a judge without a jury. Either you or we may exercise self-help remedies or obtain provisional or ancillary remedies from a court. You or we may exercise or obtain these remedies at any time, even while the arbitration or

App. 159 trial by judge is pending. By exercising or obtaining any such remedies, neither you nor we waive the right to request that a dispute or controversy be decided by arbitration or trial by a judge. *** [p.46] Termination Either you or we may terminate any or all Services upon 30 calendar days prior written notice to the other party. Notwithstanding the foregoing sentence, we may terminate any or all Services effective immediately, and we will send you notice of the termination, if any of the following occurs: P P You breach any of the terms and conditions in this Booklet or any other agreement with us; You terminate, liquidate or dissolve your business or dispose of a substantial portion of your assets; You fail generally to pay your debts as they become due; You, voluntarily or involuntarily, become the subject of any bankruptcy, insolvency, reorganization or other similar proceeding; You initiate any composition with your creditors; or Any guaranty of your obligations to us terminates, is revoked or its validity is contested by the guarantor, or any of the events set forth

P P

P P

App. 160 in the above five bullet points attributable to you occur to the guarantor. If a Service you are using is terminated for any reason, you will do the following: P P Immediately stop using any Materials relating to the terminated Service; Erase or delete any Software we have provided relating to the terminated Service to the extent it is stored in your computers; and At our option, either return to us or destroy all Materials relating to the terminated Service and certify to us that you have done so.

These obligations will continue after a Service you are using has been terminated. Termination of a Service you use does not affect your payment obligation for services we provide to you before the Service is terminated. Also, termination of any Service you use does not release you or us from any of our respective obligations which arose or became effective before such termination.

App. 161

APPENDIX E Certified Copy of Corporate Resolutions, executed January 6, 2000 [Fold-Out Exhibit, see next 2 pages]

App. 162

APPENDIX F [p.1] Authorization and Agreement for Treasury Services Each of the undersigned as an officer, owner, principal or other authorized individual of the organization specified below (the Client). The Client has received Bank of Americas Treasury Services Terms and Conditions Booklet (the Booklet) and agrees to adhere to the Booklet, any applicable User Documentation, set-up forms and related documents and other disclosures provided to the Client with regard to the provision of one or more Services from one or more of Bank of America Corporations subsidiary banks. The subsidiary banks and Services covered by this Booklet are listed on the accompanying List of Banks and Services, which we may change from time to time. Each banking institution listed on the accompanying List of Banks and Services will be a Bank for purposes of the Booklet once such banking institution begins to provide any Service to the Client. The Booklet constitutes a separate agreement between the Client and each Bank, now or in the future, when the Bank provides any service. Capitalized terms used in this Authorization and Agreement form, not otherwise defined, have the meanings given to them in the Booklet. After signing below, the Client may from time to time request the Bank to provide any of the Services

App. 163 described in the Booklet. The Client may begin to use any such Service, subject to the Banks approval, once the Bank has received from the Client all required and properly executed forms and the Client has successfully completed any testing or training requirements. The Booklet supersedes other agreements between the Client and the Bank, as described under the General Matters heading in the Booklet, with regard to the provision of Services. Each of the undersigned warrants that the Client has taken all action required by its organizational or constituent documents to authorize the undersigned to execute and deliver on behalf of the Client thus Authorization and Agreement form and any other documents the Bank may require with respect to a Service. The undersigned as authorized to enter into all transactions contemplated by the provision of Services to the Client. These may include, but are not limited to, giving the Bank instructions with regard to Electronic Funds Transfer Services and designating employees or agents to act in the name and on behalf of the Client. For Clients that are U.S. legal entities, guidelines for completion: P If Client is a corporation, then an authorized officer other than the officer who signs the Authorization and Agreement Certification must sign this form, If Client is a partnership, limited liability company, limited liability partnership or sole proprietorship, then all general partners, all members or the proprietor must sign this form unless Clients organizational or constituent documents specify otherwise;

App. 164 P If Client is a governmental entity, the Treasurer must sign this form, unless Clients charter specifies otherwise.

Client must complete the following Authorization and Agreement Certification. Dated: September 25, 2000 District of Columbia Government (CLIENTS LEGAL NAME) /s/John Robinson [Signature] John Robinson [Print Name] Acting Deputy CFO & Treasurer [Print Title] /s/Alcindor Rosier [Signature] Alcindor Rosier [Print Name] Interim Associate Treasurer & Banking Manager [Print Title] The following addresses may be used for giving notices in connection with this Booklet except as you or we provide the other different addresses to be used in conjunction with your accounts or particular Services.

App. 165 Address for Client Notices Kim L. Bumgardner 441 4th Street, NW, 360 N Washington, DC 20001 ____________________________________ Telephone (202) 727-6055 or 727-0869 Fax (202) 727-3947 or 727-6049 Address(es) for Bank Notices Bank of America Corporation Documentation Management (CA4-706-04-07) PO Box 27128 Concord CA 94527-9904 Fax 925 675 7131 and, if filled in, the following ___________________________ ___________________________ ___________________________ ___________________________ Telephone (__) _____________ Fax (__) ___________________ [p.2] Authorization and Agreement Certification The undersigned certifies that the signature appearing on the previous page for the Client is the true signature

App. 166 of a person authorized to execute the form on behalf of Client, and further certifies that the undersigned has full authority to execute this Certification. The Bank is entitled to rely upon this certification until written notice of its revocation is delivered to the Bank. Guidelines for completion: P If Client is a corporation, the chairman, president, chief executive officer, chief financial officer, treasurer, corporate secretary or an assistant corporate secretary who did not sign the Authorization and Agreement for Treasury Services must sign this Certification, If Client is a partnership, limited liability company or limited liability partnership, one of the general partners or members must sign this Certification, If Client is a governmental entity, the entitys counsel must sign this Certification.

Sole proprietors do not need to complete this Certification. Note: If Client is not a U.S. legal entity, it is not required to complete this Certification. Dated September 25, 2000 District of Columbia Government (CLIENTS LEGAL NAME) /s/Lasana K. Mack [Signature]

App. 167 Lasana Mack [Print Name] Associate Treasurer [Print Title] [p.3] Treasury Services Delegation of Authority Form This form is optional and is to be used when you wish to delegate authority to sign various subrogation forms to someone other than the person who signed the Authorization and Agreement form in the front of this Booklet. By signing below, you authorize the incumbent of the specified position listed in Section A or each person listed in section B below, acting alone, to execute documents that we may request, and any amendments or renewals thereof, pertaining to the use of Services, including, but not limited to, designating one or more persons (which may include himself or herself) authorized to initiate, amend, cancel, confirm or verify the authenticity of instructions to us for Services, whether given orally, electronically or by facsimile instructions, and to revoke any authorization granted to any such person, as he or she deems appropriate. The signer of this form has the same authority described above for each Service with us, unless otherwise specified. We are entitled to rely upon the delegation until written notice of the revocation is received by us.

App. 168 Guidelines for completion: Fill out either section A or section B, or both, depending on your needs P P To delegate authority to any person holding a specific title, fill out section A. To delegate authority to specific individuals by names, fill out section B.

For each name or title, indicate All in the Service column if the person or title has authority to sign documents for all Services which you receive from us. Otherwise, indicate specific Services for which the person or title has authority. For each name or title, indicate the entity or entities for which the person or title has authority to sign documents. Client Authorization Instructions: The same person who signed the Authorization and Agreement for Treasury Services form must sign this Treasury Services Delegation of Authority form. A. TO DELEGATE AUTHORITY TO ANY PERSON HOLDING SPECIFIC POSITIONS Title Deputy Chief Financial Officer & Treasurer Associate Treasurer Banking Relations Mnger Service All Entity District Government

All All

District Government District Government

App. 169 B. TO DELEGATE AUTHORITY TO SPECIFIC INDIVIDUALS Name Service Entity Specimen Signature

CLIENT AUTHORIZATION Dated September 25, 2000 District of Columbia Government (CLIENTS LEGAL NAME) /s/John Robinson [Signature] John Robinson [Print Name] Acting Deputy Chief Financial Officer & Treasurer [Print Title]

App. 170

APPENDIX G Bank of America Authorization and Agreement for Treasury Services I am an authorized representative of the organization specified below (the Client). The Client has received Bank of Americas Treasury Services Terms and Conditions Booklet (the Booklet) and agrees to adhere to the Booklet and any applicable User Documentation from Bank of America (Bank). The Services covered by the Booklet and the banks providing Services are listed on the accompanying List of Banks and Services, which we may change from time to time. Capitalized terms used in this Authorization and Agreement form, not otherwise defined, have the meanings given to them in the Booklet. After I sign below on behalf of the Client, the Client may from time to time request the Bank to provide any of the Services described in the Booklet. The Client may begin to use any such Service once Bank has approved such use and has received all required and properly executed forms and the Client has successfully completed any testing or training requirements. The Booklet supersedes other agreements between the Client and the Bank, as described under the General Matters heading in the Booklet, with regard to the provision of Services. I warrant that the Client has taken all action required by its organizational or constituent documents to

App. 171 authorize me to execute and deliver on behalf of the Client this Authorization and Agreement form and any other documents the Bank may require with respect to a Service. I am authorized to enter into all transactions contemplated by the provision of Services to the Client. These may include, but are not limited to, giving the Bank instructions with regard to Electronic Funds Transfer Services and designating employees or agents to act in the name and on behalf of the Client. Guidelines for completion: If Client is a: Who must sign: corporation . . . . . . . . . . any authorized officer limited liability all members, or any company . . . . . . . . . . . . authorized officer* partnership (general or limited) . . . . . . . . . . all general partners* limited liability the managing partnership . . . . . . . . . partner* sole proprietorship . . . the sole proprietor governmental entity . . the Treasurer* *Includes any individual authorized under Clients charter or organizational or constituent documents. The legal name of any member, managing member, manager or general partner who is signing and who is not an individual must appear in the signature block. Clients charter or organization or constituent documents may allow others to sign instead. Note that in most cases the Client must also complete the Certification form which follows.

App. 172 March 6, 2006 Dated Government of the District of Columbia (ORGANIZATIONS / CLIENTS LEGAL NAME) /s/Lasana K. Mack [Signature of Authorized Representative] Lasana K. Mack [Print Name of Authorized Representative)] Deputy Chief Financial Officer and Treasurer [Print Title of Authorized Representative (include the legal name of any member, managing member, manger or general partner who is signing and who is not an individual)] The following addresses may be used for giving notices in connection with this Booklet except as you or we provide the other different addresses to be used in conjunction with your accounts or particular Services. Address for Client Notices: Office of Finance and Treasury 1275 K Street NW, Suite 500 Washington, DC 20005 ___________________________________ Telephone (202) 727-6055 Fax (202) 727-6049 Address(es) for Bank Notices: Bank of America, N.A. Documentation Management (CA4-706-04-07) P.O. Box 27128

App. 173 Concord, CA 94527-9904 Fax No.: (925) 675-7131 and, if filled in, the following ___________________________ ___________________________ ___________________________ ___________________________ Telephone (__)_____________ Fax (__)___________________

App. 174 Bank of America Authorization and Agreement for Certification I certify that each signature appearing on the previous page for Client is the true signature of a person authorized to execute the form on behalf of Client, and I further certify that I have full authority to execute this certification. The Bank is entitled to rely upon this certification until written notice of the revocation is delivered to the Bank. Guidelines for completion: This Certification should not be signed by the individual who signed the Authorization and Agreement If Client is a: Who must sign: corporation . . . . . . . . . . any authorized officer limited liability any member or any company . . . . . . . . . . . . authorized officer limited liability partnership . . . . . . . . . any general partners Partnership (general or limited) . . . . . . . . . . any general partners sole proprietorship . . . no signature required governmental entity . . this entitys counsel, or any other individual as permitted by the entitys organizational documents

App. 175 The legal name of any member, managing member, manager or general partner who is signing and who is not an individual must appear in the signature block. Note: If Client is not a U. S. based entity, it is not required to complete this certification, but must provide authorizing certificates or mandates. March 6, 2006 Dated Government of the District of Columbia (ORGANIZATIONS / CLIENTS LEGAL NAME) /s/Ulysses Glen, Jr. [Signature of Certifying Representative] Ulysses Glen, Jr. [Print Name of Certifying Representative] Chief of Staff [Print Title of Certifying Representative (including the legal name of any member, managing member, manger or general partner who is signing and who is not an individual)]

App. 176 Bank of America Treasury Services Delegation of Authority Form This form is optional and is to be used when you wish to delegate authority to sign various authorization forms to someone other than the person who signed the Authorization and Agreement form in the front of this Booklet. By signing below, you authorize the incumbent of the specified position listed in Section A or such person listed in section B below, acting alone, to execute documents that we may request, and any amendments or renewals thereof, pertaining to the use of Services, including, but not limited to designating one or more persons (which may include himself or herself) authorized to initiate, amend, cancel, confirm or verify the authenticity of instructions to us for Services, whether given orally, electronically or by facsimile instructions, and to revoke any authorization granted to any such person, as he or she deems appropriate. The signer of this form has the same authority described above for each Service with us, unless otherwise specified. We are entitled to rely upon this delegation until written notice of the revocation is received by us.

App. 177 Guidelines for Completion: Fill out either section A or section B, or both, depending on your needs. P P To delegate authority to any person holding a specific title, fill out section A. To delegate authority to specific individuals by name, fill out section B.

For each name or title, indicate All in the Service column if the person or title has authority to sign documents for all Services which you receive from us. Otherwise, indicate specific Services for which the person or title has authority. For each name or title, indicate the entity or entities for which the person or title has authority to sign documents. A. TO DELEGATE AUTHORITY TO ANY PERSON HOLDING SPECIFIC POSITION TITLE Deputy CFO and Treasurer Associate Treasurer ***Not Applicable*** SERVICE All All ENTITY

App. 178 B. TO DELEGATE AUTHORITY TO SPECIFIC INDIVIDUALS NAME ***No Date Within This Section B*** SERVICE ENTITY SPECIMEN SIGNATURE

CLIENT AUTHORIZATION Client Authorization Instructions: The same person who signed the Authorization and Agreement for Treasury Services form must sign this Treasury Services Delegation of Authority form. March 6, 2006 Dated Government of the District of Columbia (ORGANIZATIONS / CLIENTS LEGAL NAME) /s/Lasana K. Mack [Signature of Authorized Representative] Lasana K. Mack [Print Name of Authorized Representative] Deputy Chief Financial Officer and Treasurer [Print Title of Authorized Representative (including the legal name of any member, managing member, manger or general partner who is signing and who is not an individual)]

App. 179

APPENDIX H

Treasury Services Terms and Conditions

Bank of America Higher Standards

App. 180 [p.1] AUTHORIZATION AND TREASURY SERVICES AGREEMENT FOR

I am an authorized representative of the organization specified below (the Client). The Client has received Bank of Americas Treasury Services Terms and Conditions Booklet (the Booklet) in the form and with the content posted on the website of Bank of America and agrees to adhere to the Booklet and any applicable User Documentation from Bank of America (Bank). The Services covered by the Booklet and the banks providing Services are listed on the accompanying List of Banks and Services, which we may change from time to time. Capitalized terms used in this Authorization and Agreement form, not otherwise defined, have the meanings given to them in the Booklet. After I sign below on behalf of the Client, the Client may from time to time request the Bank to provide any of the Services described in the Booklet. The Client may begin to use any such Service once Bank has approved such use and has received all required and properly executed forms and the Client has successfully completed any testing or training requirements. The Booklet supersedes other agreements between the Client and the Bank, as described under the General Matters heading in the Booklet, with regard to the provision of Services. I warrant that the Client has taken all action required by its organizational or constituent documents to authorize me to execute and deliver on behalf of the Client this Authorization and Agreement form and any other documents the Bank may require with respect to

App. 181 a Service. I am authorized to enter into all transactions contemplated by the provision of Services to the Client. These may include, but are not limited to, giving the Bank instructions with regard to Electronic Funds Transfer Services and designating employees or agents to act in the name and on behalf of the Client. Guidelines for completion: If Client is a: corporation . . . . . . . . . . limited liability company . . . . . . . . . . . . partnership (general or limited) . . . . . . . . . . limited liability partnership . . . . . . . . . sole proprietorship . . . governmental entity . . Who must sign: any authorized officer all members, or any authorized officer* all general partner* the managing partner* the sole proprietor the Treasurer*

* Includes any individual authorized under Clients charter or organizational or constituent documents. The legal name of any member, managing member, manager or general partner who is signing and who is not an individual must appear in the signature block. Note that in most cases the Client must also complete the Certification form which follows.

App. 182 (ORGANIZATIONS/CLIENTS LEGAL NAME) ______________________________________________ Dated [Signature of Authorized Representative] [Print Name of Authorized Representative] [Print Title of Authorized Representative (include the legal name of any member, managing member, manger or general partner who is signing and who is not an individual)] The following addresses may be used for giving notices in connection with this Booklet except as you or we provide the other different addresses to be used in conjunction with your accounts or particular Services. Address for Client Notices: ___________________________________ ___________________________________ ___________________________________ ___________________________________ Telephone: ( ) _____________________ Fax: ( ) ___________________________

[Signature of Authorized Representative, if two are required by Client]

App. 183 [Print Name of Authorized Representative] __________________________________________________ [Print Title of Authorized Representative (include the legal name of any member, managing member, manger or general partner who is signing and who is not an individual)] Address(es) for Bank Notices: Bank of America, N.A. Documentation Management (CA4-706-04-07) P.O. Box 27128 Concord, CA 94527-9904 Fax No.: (925) 675-7131 and, if filled in, the following ___________________________ ___________________________ ___________________________ ___________________________ Telephone: ( )_____________ Fax: ( )___________________ [p.2] AUTHORIZATION CERTIFICATION AND AGREEMENT

I certify that each signature appearing on the previous page for Client is the true signature of a person authorized to execute the form on behalf of Client, and I further certify that I have full authority to execute this certification. The Bank is entitled to rely upon this certification until written notice of its revocation is delivered to the Bank.

App. 184 Guidelines for completion: This Certification should not be signed by the individual who signed the Authorization and Agreement. If Client is a: corporation . . . . . . . . . . limited liability company . . . . . . . . . . . . limited liability partnership . . . . . . . . . partnership (general or limited) . . . . . . . . . . sole proprietorship . . . Who must sign: any authorized officer any member or authorized officer any partner any general partner no signature required

governmental entity the entitys counsel, or any other individual as permitted by the entitys organizational documents The legal name of any member, managing member, manager or general partner who is signing and who is not an individual must appear in the signature block. Note: If Client is not a U.S. based entity, it is not required to complete this certification, but must provide authorizing certificates or mandates.

________________________ Dated (ORGANIZATIONS/CLIENTS LEGAL NAME)

App. 185 [Signature of Certifying Representative] [Print Name of Certifying Representative)] [Print Title of Certifying Representative (include the legal name of any member, managing member, manger or general partner who is signing and who is not an individual)] [p.3] TREASURY SERVICES AUTHORITY FORM DELEGATION OF

This form is optional and is to be used when you wish to delegate authority to sign various authorization forms to someone other than the person who signed the Authorization and Agreement form in the front of this Booklet. By signing below, you authorize the incumbent of the specified position listed in Section A or each person listed in section B below, acting alone, to execute documents that we may request, and any amendments or renewals thereof, pertaining to the use of Services, including but not limited to designating one or more persons (which may include himself of herself) authorized to initiate, amend, cancel, confirm or verify the authenticity of instructions to us for Services, whether given orally, electronically or by facsimile instructions, and to revoke any authorization granted to any such person, as he or she deems appropriate. The signer of this form has the same authority described above for each Service with us, unless

App. 186 otherwise specified. We are entitled to rely upon this delegation until written notice of its revocation is received by us. Guidelines for Completion: Fill out either section A or section B, or both, depending on your needs. To delegate authority to any person holding a specific title, fill out section A. To delegate authority to specific individuals by name, fill out section B. For each name or title, indicate All in the Service column if the person or title has authority to sign documents for all Services which you receive from us. Otherwise, indicate specific Services for which the person or title has authority. For each name or title, indicate the entity or entities for which the person or title has authority to sign documents. A. TO DELEGATE AUTHORITY TO ANY PERSON HOLDING SPECIFIC POSITIONS Title Service Entity

App. 187 B. TO DELEGATE AUTHORITY TO SPECIFIC INDIVIDUALS Name Service Entity Specimen Signature

CLIENT AUTHORIZATION Client Authorization Instructions: The same person who signed the Authorization and Agreement for Treasury Services form must sign this Treasury Services Delegation of Authority form. Dated (ORGANIZATIONS/CLIENTS LEGAL NAME) [Signature of Authorized Representative] [Print Name of Authorized Representative] [Print Title (include the legal name of any member, managing member, manger or general partner who is signing and who is not an individual)] ***

App. 188 [p.6] INTRODUCTION Thank you for choosing the Bank of America Corporation group of financial institutions for your worldwide treasury management business needs. We appreciate the opportunity to serve you. If you have any questions about our extensive array of treasury services (including the locations where each service is available) or about this Booklet, please contact your treasury representatives. Capitalized terms used in this Booklet are defined in the Glossary. The terms we, us and our refer to each of the Bank of America Corporation subsidiary banks which provide you a particular Service under the terms of this Booklet. The terms you and your refer to each Client identified on the Authorization and Agreement for Treasury Services. This Booklet contains the terms and conditions under which we provide you worldwide treasury services. It is used in conjunction with the Account Agreement which covers account terms and conditions. Please read this Booklet carefully and keep it for your records. By signing and returning the Authorization and Agreement form in the front of this Booklet, you agree to the General Provisions section of this Booklet (which contains the terms and conditions applicable to all Services), except that you agree to the Software License Section of the General Provisions only to the extent we provide you Software in connection with one or more Services.

App. 189 You also agree to those portions of the Treasury Services and Electronic Trade Services sections of this Booklet which contain the specific terms and conditions that relate to the Services that we provide to you. If you would like an additional Service, it will be covered by the terms and conditions of this Booklet once we have approved your use of the Service. You may begin using the Service when we have received all required and properly executed forms and you have successfully completed any testing or training requirements. Whenever you use any of the Services covered by this Booklet, you agree to be bound by these terms and conditions, as amended from time to time, and to follow the procedures in the applicable Materials. *** [p.24] You may instruct us to make either date-related (where available) or balance-related (where available) transfers as described below. Once you instruct us to transfer funds between accounts, transfers begin on a mutually agreeable date or, for accounts domiciled in the United States of America, either immediately or on the date you specify. With a date-related transfer, funds can be transferred in either direction between certain types of accounts on the date and in the amount you specify. Both interstate and intrastate funds transfers are permitted as long as you meet the requirements for the account type(s), transfer date and account location(s). If the transfer date you

App. 190 specify is a non-Business Day, we make the transfer on the next Business Day. With a balance-related transfer, you may have funds transferred to an account when the balance falls below a certain amount, or from an account, when the balance rises above a certain amount, or both. We transfer the amount required to meet the account balance you specify. You may elect to have funds transferred to or from accounts of another company/organization using a Service. You agree that for each such account, the company/organization will provide us with its written authorization, in a form acceptable to us, for such transfers. However, you do not need to provide us such written authorization if (i) the other companys accounts are domiciled in the United States of America and (ii) you represent and warrant that such other company is a U.S. Subsidiary and that it has authorized us to transfer funds between its accounts and your accounts. CONTROLLED DISBURSEMENT Our Controlled Disbursement Services provide information to you each Business Day so that you can fund the total amount of i) controlled disbursement checks presented that Business Day and (ii) where the option is available, controlled disbursement ACH debits and any other electronic debits to which we agree and which are posted that Business Day.

App. 191 ACCOUNTS We make the Controlled Disbursement Services available through multiple Controlled Disbursement Points in different parts of the United States of America. These Points are identified on the List of Banks and Services. Subject to our approval in each case, you may use such Service through one or more of those Points. For each Controlled Disbursement Point you use, you maintain one or more Deposit Accounts with us. For certain Controlled Disbursement Points, as more fully described in the applicable User Documentation, you may (i) draw checks bearing those respective Points routing numbers directly on a Deposit Account and (ii) where the option is available, initiate or authorize third parties to initiate ACH debits and, subject to special agreement, other electronic debits to the Deposit Account. (For electronic debits to a Deposit Account, you must use the appropriate funds transfer Service approved by us.) For a certain other Controlled Disbursement Point, we authorize you to draw checks on accounts we maintain at such Point, then we debit your Deposit Account(s) in the amount(s) of the checks which are paid. With these Services, you have no account or contractual relationship with such Controlled Disbursement Point. You will not access our accounts maintained at such Point in any other manner, including but not limited to automatic debit arrangements cleared through an automated clearing house network or through wire transfers.

App. 192 [p.25] On each Business Day, we will inform you by the time specified in the applicable User Documentation of the total amount of debits presented for payment that day at or through a Controlled Disbursement Point and any other amounts required to be deposited in the corresponding Deposit Account(s) to cover such debits. On each such Business Day, prior to the time stated in the applicable User Documentation, you must ensure that sufficient Collected and Available Funds are on deposit in the Deposit Account(s) to cover such amounts. If we attempt to post a debit to a Deposit Account for the amount due and determine there are insufficient funds in the Deposit Account, we may dishonor or instruct the pertinent Controlled Disbursement Point to dishonor some or all of the checks then pending payment and/or, as appropriate, return or reject any electronic debit pending settlement. We may, however, in our sole discretion, allow an overdraft so some or all of such checks or electronic debits will be paid or settled. If we do so, we are not obligated to allow any such overdraft in the future. If, for any reason, we fail to provide you timely notice of the required funding amount for a Deposit Account, and if you fund such Deposit Account according to the procedures (including funding amount and time) described in the applicable User Documentation, we will post to the Deposit Account, or instruct the Controlled Disbursement Point to post to your account, all checks presented for payment, and electronic debits received for settlement, that day. If the required funding

App. 193 amount nonetheless exceeds the amount funded by you and you have insufficient funds in the Deposit Account to cover the required amount, we will overdraw the Deposit Account and advance funds to cover the excess. If we advance our own funds, repayment is immediately due and payable, and you will repay us on or before the next Business Day along with interest on such funds as specified in our schedule of charges for business account services or as otherwise agreed. If you do not, we may dishonor, or instruct the Controlled Disbursement Point to dishonor, some or all of the checks then pending final payment and/or, as appropriate, return or reject any electronic debit pending settlement even if the Deposit Account has sufficient Collected and Available Funds to cover such debits. We may require you to maintain a specified minimum amount in any Deposit Account for which we permit you to use automated clearing house transfers to fund that Account. If you use facsimile signatures on checks drawn on an account at a Controlled Disbursement Point, your use of such signatures is subject to the Facsimile Signatures section of this Booklet. STOP PAYMENTS You may request stop payments on checks drawn under a Controlled Disbursement Service by following the procedures specified in the applicable User Documentation or applicable Account Agreement. Also, you may use an Online Stop Payment Service, which is subject to the Online

App. 194 Stop Payment section of this Booklet. If you use telephone, mail or facsimile transmission to request a stop payment, you agree that your stop payment request is subject to the terms described in the Account Agreement for requesting stops by telephone or mail. [p.26] If some, but not all, of the information in your stop payment request matches a check which has been presented for payment (for example, the Magnetic Ink Character Recognition (MICR) serial numbers match and the dollar amounts do not match), we may contact you to request a decision on whether or not to pay the check. If any such suspect check is not to be paid, you must promptly instruct us not to pay, or to direct a Controlled Disbursement Point not to pay, the suspect check. If you do not, the suspect check may be paid. DISBURSEMENT IMAGE Our Disbursement Image Services will make available to you digital images of checks and drafts paid against specified accounts. Such images may be made available to you by online transmission or by CD-ROMs containing images you may access using image CD-ROM Software. Check and draft images will be made available to you at such times as you request and we agree. If an image of a check or draft is missing or is illegible, we will provide you a microfilm copy upon your request. Your request must include the account number, the check serial number, the exact amount

App. 195 (dollars and cents) of the payment and the date the payment was made. We may assess a fee for copies provided to you. We will not be liable for failure to provide copies by a given time or for failure to provide copies we are not reasonably able to provide. Notwithstanding the Limitation of Liabilities section of this Booklet, we will not be liable for damages arising under any Disbursement Image Service in excess of the amount of the check, draft or miscellaneous debit giving rise to your damage claim. Any such claim must include the account number, the check serial number, the exact amount (dollars and cents) of the payment, the date the payment was made, the name of the payee, a detailed explanation of how the claimed loss occurred and the name, address and phone number of the payee to whom you cannot prove payment was made. Notwithstanding the Termination section of this Booklet, in the case of a Disbursement Image Service using CD-ROMs, termination of such Service upon 30 days notice may not be effective earlier than the first day of the statement period immediately following the statement period during which such notice is given. ELECTRONIC CONSOLIDATION BILL PAYMENT

Our Electronic Bill Payment Consolidation Service consolidates, reformats and delivers remittance information and other data related to payments

App. 196 received from Bill Payment Service Providers for credit to your account. Detailed information regarding the Service is available in the applicable User Documentation. *** [p.56] FACSIMILE SIGNATURES In some countries, businesses use a variety of techniques to produce a facsimile signature manually or by means of a device or machine (each generally called a facsimile signature) as a convenient method for signing checks, documents and other items. If you choose to use a facsimile signature, you must provide us with a specimen of each facsimile signature. You are responsible for any withdrawal from your deposit account that bears or reasonably appears to us to bear your facsimile signature, regardless of by whom or by what means the signature was placed on the check. If you choose to use a facsimile signature, you are responsible even if you have not presented us with a specimen facsimile signature, or if the size, color or style of the check, or the size, color or style of the facsimile signature is different from that of the check or facsimile signature you use. We may pay the withdrawal and debit your account for it. You agree to compensate us for all losses, claims, damages or expenses, including Legal Expenses, that result from our payment of a withdrawal

App. 197 bearing a facsimile that reasonably resembles your facsimile signature. You are responsible for taking security measures and implementing procedures to prevent the forgery, theft or fraudulent or unauthorized use of your facsimile signature. GENERAL MATTERS AGREEMENT Except with respect to a click-wrap online privacy policy to which you agree when you use a Service through Bank of America Direct, this Booklet constitutes and represents the entire agreement between you and us regarding the Services we provide you anywhere in the world and supersedes and extinguishes all prior agreements, understandings, representations, warranties and arrangements of any nature (including requests for proposals and other sales material), whether oral or written, between you and us relating to any such Service (including any International Treasury Services Terms and Conditions booklet, but excluding the current Account Agreement). This Booklet will be controlling in the event of any conflict between it and any relevant User Documentation, any other document or written or oral statement (including but not limited to any Account Agreement, except as applicable law requires otherwise), but excluding the click-wrap online privacy policy noted above. Current User Documentation is available upon request.

App. 198 This Booklet is binding upon each of your and our respective successors and permitted assigns. You may with our prior written consent, assign any of your rights or duties described in this Booklet. This Booklet is not for the benefit of any other person, and no other person has any right under this Booklet against you or us, and nothing contained in this Booklet creates any agency, fiduciary, joint venture or partnership relationship between you and us. NOTICE OF FINAL AGREEMENT. THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. *** [p.60] We will, on a monthly basis, debit your account with us for payment of charges due, unless you arrange another payment procedure acceptable to us. TAXES All Service charges are exclusive of sales, valueadded and use taxes, stamp and other duties and other governmental charges imposed on any Service or Materials and not based on our net income. Such taxes, duties and charges are payable by you.

App. 199 PROTECTION FROM THIRD PARTIES You will indemnify us against and hold us harmless from and defend us against any and all liabilities, claims, costs, expenses and damages of any nature (including Legal Expenses) arising out of or relating to disputes or legal actions by parties other than you and us concerning any Service. The obligations contained in the preceding sentence will continue after a Service you are using is terminated. This section does not apply to any cost or damage attributable to our gross negligence or intentional misconduct. REPRESENTATIONS AND WARRANTIES On and as of each day we provide any Service to you, you represent and warrant to us that: Your agreement to each provision contained in this Booklet is a duly authorized, legal, valid, binding and enforceable obligation; The debiting of any account as provided in this Booklet is not inconsistent with any restriction on the use of that account; All approvals and authorizations required to permit the execution and delivery of the Agreement and Authorization form and any other necessary documentation, and the performance and consummation by you of the transactions contemplated under each Service, have been obtained, including but not limited to due authorization from each applicable third

App. 200 party to allow you to transfer funds and access information from such partys account; Your performance of your obligations will not violate any law, regulation, judgment, decree or order applicable to you; and There is no lawsuit, tax claim or other dispute pending or threatened against you which, if lost, would impair your financial condition or ability to pay us under the terms of this Booklet. RESOLUTION OF DISPUTES We try to resolve our clients Service problems or disputes as quickly as possible. In most cases, we can resolve a problem by telephone. [p.61] Any dispute or controversy concerning your use of Services described in this Booklet will be decided by binding arbitration conducted in the United States of America (except as you and we expressly agree otherwise) in accordance with the United States Arbitration Act (Title 9, U.S. Code) under the Commercial Arbitration Rules of the American Arbitration Association. Under these procedures, the dispute is submitted to a neutral person for determination in place of a trial before a judge or jury. Judgment upon the award made by the arbitrator may be entered in any court having jurisdiction. Without regard to the foregoing, any dispute or controversy that arises from an Electronic Funds

App. 201 Transfer Service will be decided by a judge without a jury in a United States of America federal or state court (except as you and we expressly agree otherwise in writing). This means that in these instances you waive any right to a trial by jury in any action or proceeding and agree that such action or proceeding will be tried before a judge without a jury. Either you or we may exercise self-help remedies or obtain provisional or ancillary remedies from a court. You or we may exercise or obtain these remedies at any time, even while the arbitration or trial by a judge is pending. By exercising or obtaining any such remedies, neither you nor we waive the right to request that a dispute or controversy be decided by arbitration or trial by a judge. SOFTWARE LICENSE This section applies to all Software we provide to you after you return the Agreement and Authorization form unless we provide you a separate license agreement for specific Software (including a click-wrap Software license you may obtain from us by downloading from our website and including, in the case of the Commercial and Corporate Card Services, the licenses for Visa, InfoSpan, MasterCard SmartData and any other third-party Software we provide you in connection with such Services). Notwithstanding anything to the contrary in the General Provisions section of this Booklet, the software licenses granted to you under this Software License section are governed by

App. 202 and interpreted according to the laws of the State of California without reference to its principles of conflicts of law. LICENSE For each Software application we provide to you for one or more Services, we grant you a non-exclusive, non-transferable license for the use of that Software and its related Materials. Each license is granted solely for use in object code form only in connection with one or more Services. You may use the Software only in accordance with the applicable User Documentation. The Software, its source code, the related Materials and all copyright, patent, trademark, trade secret and other rights in them are and will remain the exclusive property of us or our licensors. You will secure and protect the Software (including all copies) in a manner consistent with the maintenance of our rights and those of our licensors. In order to protect those rights, you will reproduce and incorporate copyright notices and all other proprietary legends prescribed by us in any permitted copies. You may not remove, obscure or otherwise tamper with or alter any such notices or legends affixed to or otherwise contained in the Software or related Materials or copies. You will also take appropriate action to instruct and obligate your representatives who are permitted access to the Software (including copies) to comply with your obligations to protect the Software. ***

App. 203 [p.65] You may not electronically distribute the Image CDROM Software to any workstation other than the one for which such Software is originally installed on your site. Notwithstanding anything to the contrary in the Termination section of this Booklet, if a Disbursement Image Service under which we provide you with CD-ROMs is terminated for a reason other than your breach of this Software License section, you may continue to use the Software for such Service after termination of such Service for six months, or for such longer period as we approve, subject to the terms of this Software License section or such other software license agreement as we, at our election, require you to sign for this purpose. At the end of such six-month or longer period, the license for your use of the Software for such Disbursement Image Service will then terminate automatically. SUPPLEMENTAL IMAGE (POSITIVE PAY) SOFTWARE LICENSE PROVISIONS This subsection supplements this Software License section with respect to Software we provide you for the Image Positive Pay Service and shall control in the event of conflict between it and the balance of the Software License section. You may not electronically distribute the CCR (C Compression Routines) Software for Windows 3.1 provided to you in connection with the Image Positive Pay Service to any workstation other than

App. 204 the one for which such Software is originally installed on your site. TERMINATION Either you or we may terminate any or all Services upon 30 (60 in the case of Corporate Card Services) calendar days prior written notice to the other party. Notwithstanding the foregoing sentence, we may terminate any or all Services effective immediately, and we will send you notice of the termination, if any of the following occurs: You breach any of the terms and conditions in this Booklet or any other agreement with us; You terminate, liquidate or dissolve your business or dispose of a substantial portion of your assets; You fail generally to pay your debts as they become due; You, voluntarily or involuntarily, become the subject of any bankruptcy, insolvency, reorganization or other similar proceeding; You initiate any composition with your creditors; You experience a material adverse change in your financial condition or your ability to perform your obligations under the terms and conditions in this Booklet; or Any guaranty of your obligations to us terminates, is revoked or its validity is contested by the guarantor, or any of the events set forth

App. 205 in the above five bullet points attributable to you occur to the guarantor. If a Service you are using is terminated for any reason, you will do the following: Immediately stop using any Materials relating to the terminated Service; Erase or delete any Software we have provided relating to the terminated Service to the extent it is stored in your computers; and At our option, either return to us or destroy all Materials relating to the terminated Service and certify to us that you have done so. [p.66] These obligations will continue after a Service you are using has been terminated. Termination of a Service you use does not affect your payment obligations for services we provide to you before the Service is terminated, and any such termination is in addition to our other rights under applicable law and under the terms of this Booklet. Also, termination of any Service you use does not release you or us from any of our respective obligations which arose or became effective before such termination. Upon termination, all amounts owed by you and outstanding will become immediately due and payable.

App. 206

APPENDIX I DISTRICT OF COLUMBIA OFFICE OF THE CHIEF FINANCIAL OFFICER CONTRACT ISSUED BY: Office of the Chief Financial Officer Office of Contracts and Procurement ADDRESS: 941 North Capitol Street, N.E. 8th Floor, Washington, D.C. 20002 CONTRACT NO.: CFOPD-05-C-083 SOLICITATION NO: CFOPD-05-R-019 PROGRAM OFFICE: OFFICE OF FINANCE AND TREASURY CAPTION: Controlled Disbursement Account Services TABLE OF CONTENTS
Article DESCRIP- PAGE(S) TION I II III Scope of Work Contract Type/Price Pre-Award Approval 2 2 2 DESCRIP- PAGE(S) TION

App. 207
IV Incorpor2 ated Documents by Order of precedence Total Agreement 2

The undersigned offers and agrees that with respect to all terms and conditions as negotiated between the offeror and OCFO and contained herein and, in the provisions of the solicitation, shall constitute the formal contract. ACCOUNTING AND APPROPRIATION DATA: PURCHASE ORDER NUMBER: TBD CONTRACTOR: (Contractor shall not commence performance until the District of Columbia has signed this document) (Contractors Name) Bank of America BY /s/ Signature by Authorized Representative ACCEPTANCE BY THE OFFICE OF THE CHIEF FINANCIAL OFFICER: /s/ Contracting Officer 11-13-05 Date The information contained in the box below is for the Office of the Chief Financial

App. 208 ______________________ Senior Vice President ____________________ Date Mailing Address of Contractor 10 Light Street MD4302-16-07 Baltimore, MD 21202 Telephone: Facsimile: 410-605-5291 Officer use only and, in the event of a discrepancy between this information and the terms of the contract, the contract terms shall take precedence. _____________________ PERIOD OF CONTRACT R From: Date of Signature by Contracting officer To: One (1) year + Four (4) Options CONTRA T AMOUNT: Redacted

Subject to the terms and conditions set forth herein, the Government of the District of Columbia, Office of the Chief Financial Officer, Office of Finance and Treasury, (hereinafter referred to as the District and Bank of America (hereinafter referred to as Contractor) hereby enter into a contract in accordance with the following terms:

App. 209 Page 2 of 3 Pages Contractor: Bank of America Contract No.: CFOPD-05-C-083 Caption: Controlled Disbursement Account Services Subject to the terms and conditions set forth herein, the Government of the District of Columbia, Office of the Chief Financial Officer, Office of Finance and Treasury, (hereinafter referred to as the District) and Bank of America (hereinafter referred to as Contractor) hereby enter into a contract in accordance with the following terms: ARTICLE I SCOPE OF WORK The Office of the Chief Financial Officer requires the establishment of a demand deposit account (DDA) to issue checks to government vendors and third parties. The financial institution providing these banking services must have the capacity to operate the account, provide a report of balances for the account to the Office of Finance and Treasurys Case Management Unit (CMU) by an automated balance reporting system and, send information electronically. The intent of this contract is for a contractor to manage the disbursement account in accordance with the published Request for Proposal. ARTICLE II CONTRACT TYPE/AMOUNT Under this contract, costs incurred by the District of Columbia that result from operating the account (debits/credits, account reports, etc.) shall be invoiced monthly by the contractor upon completion of performance of service. The District will make payments for financial services to the contractor on a

App. 210 quarterly basis in the form of check or electronic funds transfer. ARTICLE III PERIOD OF PERFORMANCE The contract period shall be one (1) year from date of award with the Districts option to renew the contract for four (4) 1-year periods. A. Option Period 1. The District may extend the term of this contract by exercising up to four (4) one-year option periods. 2. The total duration of this contract, including the exercise of any options under this clause, shall not exceed five (5) years. B. Option To Extend the Term of the Contract 1. The District may extend the term of this contract for a period of four (4), one-year option periods, or fractions thereof, by written notice to the Contractor before the expiration of the contract; provided that the District shall give the Contractor a preliminary written notice of its intent to extend at least thirty (30) days before the contract expires. The preliminary notice does not commit the District to an extension. The exercise of this option is subject to the Page 3 of 3 Pages availability of funds at the time of the exercise of this option. The Contractor may waive the thirty (30) days preliminary notice requirement

App. 211 by providing a written waiver to the Contracting Officer prior to expiration of the contract. 2. If the District exercises this option, the extended contract shall be considered to include this option provision. 3. The price for the option period shall be as specified in the contract. ARTICLE IV INCORPORATED DOCUMENTS BY ORDER OF PRECEDENCE A. Articles I through V of this contract; B. Contractors Technical Proposal and Cost Proposal C. Contractors Best and Final Offer dated April 25, 2005 D. Request for Proposal (RFP) Number CFOPD-02-R-019 issued ARTICLE V TOTAL AGREEMENT This contract, including specifically incorporated documents, constitutes the total and entire agreement between the parties. All previous discussions, writings, and agreements are merged herein.

App. 212

REQUEST FOR PROPOSAL FOR FINANCIAL SERVICES FOR OFT CONTROLLED DISBURSEMENT ACCOUNT RFP NO. CFOPD-02-R-019

Bank of America GOVERNMENT BANKING GROUP Edmund Bianchi, Senior Vice President, Team Leader, Government Banking, (410) 605-5291 Robert W. Greco, Vice President, Treasury Management Officer, (202) 624-3700 Lynn Jackson, Assistant Vice President, TM Marketing Specialist, (202) 624-3721 June 2002

App. 213 Bank of America Bank of America Government Banking 10 Light Street, 16th Floor Baltimore, MD 21201-1499

June 24, 2002 Royce Thomas, Jr. Contract Specialist District of Columbia Government 941 N. Capitol Street, N.E. Suite 800 Washington, D.C. 20002 Dear Mr. Thomas: We respectfully submit our proposal to provide Controlled Disbursement banking services to the District of Columbia Government. We certify that we have read Solicitation No. CFOPD-02-R-019 and are able to provide all the services requested in the RFP. Bank of America appreciates the current relationship that we have with the District of Columbia Government and look forward to continuing our mutually beneficial relationship. Unlike other financial institutions in the region who have merger related issues to deal with, Bank of America is free to focus its resources towards product development and client focused activities. Bank of America is confident that its focused commitment, its prudent use of sophisticated technology, its highly experienced associates, and its dedicated Government Banking group can provide

App. 214 solutions that will continue to satisfy the District of Columbia Governments needs. Our goal is to exceed your expectations. Our partnership with the District goes beyond this contract. We are a community partner, participating in the Districts community related initiatives over the years. We expect that involvement to continue in the years to come. Thank you for the opportunity to bid. We are available to answer any questions and to meet to discuss this proposal in more depth. We look forward to continuing discussions and more importantly a continuing relationship. We want to continue to be the Districts partner. Sincerely, /s/Edmund A. Bianchi Edmund A. Bianchi Senior Vice President 410-605-5291 Fax: 410-605-5291 ed.bianchi@bankofamerica.com

Robert W. Greco Vice President 202-624-3700 Fax: 202-624-4399 Bob.W.Greco@bankofamerica.com

App. 215 TABLE OF CONTENTS I. EXECUTIVE SUMMARY . . . . . . . . . . . . . . . . . 1 Advantages of the Bank of America Proposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Relationship Management . . . . . . . . . . . . 4 II. TECHNICAL PROPOSAL Specifications/Scope of Work . . . . . . . . . . 5 Check Payment . . . . . . . . . . . . . . . . . . . . . 5 Fraud . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Cashing District Government Checks . . . . 6 Transfer of Funds . . . . . . . . . . . . . . . . . . . 6 Overnight Investment . . . . . . . . . . . . . . . . 6 Stop Payment Requests . . . . . . . . . . . . . . 7 Full Account Reconciliation Service . . . . . 7 File Transmission . . . . . . . . . . . . . . . . . . . 7 Positive Pay/Match Pay . . . . . . . . . . . . . . 8 Deposit Limitations and Collateral Requirements . . . . . . . . . . . . . . . . . . . . . . . 9 Quality Requirements . . . . . . . . . . . . . . . 11 Reporting Requirements . . . . . . . . . . . . . 12 Performance Disincentives and Incentives . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Statement of Experience and Capability . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Qualifications of Key Personnel . . . . . . . 19 Summary of Firms Approach . . . . . . . . . 22 III. PRODUCT SOLUTIONS Controlled Disbursement . . . . . . . . . . . . Account Reconciliation Plan (ARP) . . . . Positive Pay Services . . . . . . . . . . . . . . . . PerfectView+ CD ROM . . . . . . . . . . . . . . Automated Investment Service . . . . . . . . 24 26 31 34 35

App. 216 Bank of America Direct . . . . . . . . . . . . . . Wire Transfer . . . . . . . . . . . . . . . . . . . . . . Monthly Account Analysis . . . . . . . . . . . Relationship Enhancements . . . . . . . . . View Point . . . . . . . . . . . . . . . . . . . . . . . . Statements and Reports On-line . . . . . . . IV. BANK OF AMERICA PROFILE Bank of America Community Development Banking . . . . . . . . . . . . . District of Columbia Banking Centers . . . . . . . . . . . . . . . . . . . . . . . . 1st Quarter Highlights . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . Supplier Diversity and Development 36 40 41 42 42 42

44 47 49 49 50

V. SAMPLE REPORTS & INVESTMENT RATES Demand Deposit Statement Account Analysis Statement Overnight Investment Statement Account Reconciliation Plans (ARP) Reports Bank of America Direct Report Standard Input/Output Formats Historical Overnight Investment Rates AGREEMENTS/DOCUMENTATION Terms & Conditions for Treasury Services Signature Card & Resolution Wire Transfer Forms Automated Investment Service Agreement Bank of America Direct Profile Electronic Positive Pay Profile 2001 Annual Report Attached

App. 217 VI. COST PROPOSAL SEPARATELY SUBMITTED

App. 218 AGREEMENTS/DOCUMENTATION

App. 219 Bank of America Authorization and Agreement for Treasury Service I am an authorized representative of the organization specified below (the Client). The Client has received Bank of Americas Treasury Services Terms and Conditions Booklet (the Booklet) and agrees to adhere to the Booklet and any applicable User Documentation from Bank of America (Bank). The Services covered by the Booklet are listed on the accompanying List of Banks and Services, which we may change from time to time. Capitalized terms used in this Authorization and Agreement form, not otherwise defined, have the meanings given to them in the Booklet. After I sign below on behalf of the Client, the Client may from time to time request the Bank to provide any of the Services described in the Booklet. The Client may begin to use any such Service, subject to the Banks approval, once the Bank has received from the Client all required and properly executed forms and the Client has successfully completed any testing or training requirements. The Booklet supersedes other agreements between the Client and the Bank, as described under the General Matters heading in the Booklet, with regard to the provision of Services. I warrant that the Client has taken all action required by its organizational or constituent documents to authorize me to execute and deliver on behalf of the Client this Authorization and Agreement form and any other documents the Bank may require with respect to Service. I am authorized to enter into all transactions

App. 220 contemplated by the provision of Services to the Client. These may include, but are not limited to, giving the Bank instructions with regard to Electronic Funds Transfer Services and designating employees or agents to act in the name and on behalf of the Client. Guidelines for completion: If Client is a: Who must sign: corporation . . . . . . . . . . any authorized officer limited liability all members, or any company . . . . . . . . . . . . authorized officer* partnership . . . . . . . . . all general partners* limited liability the managing partnership . . . . . . . . . partner* sole proprietorship . . . the sole proprietor governmental entity . . the Treasurer* *Clients charter or organizational or constituent documents may allow others to sign instead. Note than in most cases the Client must also complete the Certification form which follows. Date: _________________ [CLIENTS LEGAL NAME] Title: ____________________ [Print or Type] Signature By:______________________ Name: __________________ [Print or Type]

App. 221 Address for Client Notices: ___________________________________ ___________________________________ ___________________________________ ___________________________________ Telephone No.: ____________________ Fax No.: __________________________ Address for Bank Notices: Bank of America Corporation Documentation Management P.O. Box 2718 Concord, CA 94527-9904 Fax Number: (925) 675-7131 and, if filled in, the following ___________________________ ___________________________ ___________________________ ___________________________ Fax No.:___________________

App. 222 Bank of America Authorization and Agreement Certification I certify that each signature appearing on the previous page for Client is the true signature of a person authorized to execute the form on behalf of Client, and I further certify that I have full authority to execute this certification. The Bank is entitled to rely upon this certification until written notice of its revocation is delivered to the Bank. Guidelines for completion: If Client is a: Who must sign: corporation . . . . . . . . . . any authorized officer, except it may not be the same officer who signed the Authorization and Agreement limited liability any member or any company . . . . . . . . . . . . authorized officer limited liability partnership . . . . . . . . . any general partners partnership . . . . . . . . . any general partners sole proprietorship . . . no signature required governmental entity . . the entitys counsel, or others permitted by the entitys organizational documents

App. 223 Note: If Client is not a U. S. legal entity, it is not required to complete this certification. Dated:______________ _____________________________ [CLIENTS LEGAL NAME] By: _________________________ [Signature] Name: ______________________ [Print or Type] Title: _______________________ [Print or Type]

App. 224 Bank of America Treasury Service Delegation of Authority Form This form is optional and is to be used when you wish to delegate authority to sign various authorization forms to someone other than the person who signed the Authorization and Agreement form in the front of this Booklet. By signing below, you authorize the incumbent of the specified position listed in Section A or each person listed in section B below, acting alone, to execute documents that we may request, and any amendments or renewals thereof, pertaining to the use of Services, including but not limited to designating one or more persons (which may include himself or herself) authorized to initiate, amend, cancel, confirm or verify the authenticity of instructions to us for Services, whether given orally, electronically or by facsimile instructions, and to revoke any authorization granted to any such person, as he or she deems appropriate. The signer of this form has the same authority described above for each Service with us, unless otherwise specified. We are entitled to rely upon this delegation until written notice of its revocation is received by us.

App. 225 Guidelines for Completion: Fill out either section A or section B, or both, depending on your needs. To delegate authority to any person holding a specific title, fill out section A. To delegate authority to specific individuals by name, fill out section B. For each name or title, indicate All in the Service column if the person or title has authority to sign documents for all Services which you receive from us. Otherwise, indicate specific Services for which the person or title has authority. For each name or title, indicate the entity or entities for which the person or title has authority to sign documents. Client Authorization Instructions: The same person who signed the Authorization and Agreement for Treasury Services form must sign this Treasury Services Delegation of Authority form. A. TO DELEGATE AUTHORITY TO ANY PERSON HOLDING SPECIFIC POSITIONS TITLE SERVICE ENTITY

App. 226 B. TO DELEGATE AUTHORITY TO SPECIFIC INDIVIDUALS NAME SERVICE ENTITY SPECIMEN SIGNATURE

Date: ___________________ _______________________ __________________________ [SIGNATURE] [CLIENTS LEGAL NAME] _______________________ [PRINT OR TYPE]

App. 227

REQUEST FOR PROPOSAL FOR FINANCIAL SERVICES FOR OFT CONTROLLED DISBURSEMENT ACCOUNT RFP NO. CFOPD-02-R-019 Revised

Bank of America GOVERNMENT BANKING GROUP Edmund Bianchi, Senior Vice President, Team Leader, Government Banking, (410) 605-5291 Tammy Kennedy-Nichols, Vice President, Senior Treasury Managment Officer, (410) 605-4383 June 2002 (Revised April 2005)

App. 228 TABLE OF CONTENTS I. EXECUTIVE SUMMARY . . . . . . . . . . . . . . . . . 1 Advantages of the Bank of America Proposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Relationship Management . . . . . . . . . . . . 4 II. TECHNICAL PROPOSAL Specifications/Scope of Work . . . . . . . . . . 5 Check Payment . . . . . . . . . . . . . . . . . . . . . 5 Fraud . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Cashing District Government Checks . . . . 6 Transfer of Funds . . . . . . . . . . . . . . . . . . . 6 Overnight Investment . . . . . . . . . . . . . . . . 6 Stop Payment Requests . . . . . . . . . . . . . . 7 Full Account Reconciliation Service . . . . . 7 File Transmission . . . . . . . . . . . . . . . . . . . 7 Positive Pay/Match Pay . . . . . . . . . . . . . . 8 Teller Positive Pay (Revised) . . . . . . . . . . . 9 Deposit Limitations and Collateral Requirements . . . . . . . . . . . . . . . . . . . . . . 10 Quality Requirements . . . . . . . . . . . . . . . 11 Reporting Requirements (Revised) . . . . . 12 Performance Disincentives and Incentives . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Statement of Experience and Capability . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Qualifications of Key Personnel (Revised) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Summary of Firms Approach . . . . . . . . . 21 III. PRODUCT SOLUTIONS Controlled Disbursement . . . . . . . . . . . . 23 Account Reconciliation Plan (ARP) . . . . 25 Positive Pay Services . . . . . . . . . . . . . . . . 30

App. 229 Image OnSite CD ROM(Revised) . . . . . . Automated Investment Service . . . . . . . . Bank of America Direct . . . . . . . . . . . . . . Wire Transfer . . . . . . . . . . . . . . . . . . . . . . Monthly Account Analysis (Revised) . . . Relationship Enhancements . . . . . . . . . View Point . . . . . . . . . . . . . . . . . . . . . . . . Statements and Reports On-line . . . . . . . PayMode (Revised) . . . . . . . . . . . . . . . . . IV. BANK OF AMERICA PROFILE Bank of America Community Development Banking . . . . . . . . . . . . . District of Columbia Banking Centers . . . . . . . . . . . . . . . . . . . . . . . . 4th Quarter Highlights (Revised) . . . . References (Revised) . . . . . . . . . . . . . . . Supplier Diversity and Development . 33 34 35 39 40 42 42 42 43

45 48 50 50 51

V. SAMPLE REPORTS & INVESTMENT RATES Demand Deposit Statement Account Analysis Statement Overnight Investment Statement Account Reconciliation Plans (ARP) Reports Bank of America Direct Report Standard Input/Output Formats Historical Overnight Investment Rates (Revised) AGREEMENTS/DOCUMENTATION Terms & Conditions for Treasury Services Signature Card & Resolution Wire Transfer Forms Automated Investment Service Agreement Bank of America Direct Profile Electronic Positive Pay Profile

App. 230 VI. COST PROPOSAL SEPARATELY SUBMITTED

App. 231 AGREEMENTS/DOCUMENTATION

App. 232 Bank of America Authorization and Agreement for Treasury Service I am an authorized representative of the organization specified below (the Client). The Client has received Bank of Americas Treasury Services Terms and Conditions Booklet (the Booklet) and agrees to adhere to the Booklet and any applicable User Documentation from Bank of America (Bank). The Services covered by the Booklet are listed on the accompanying List of Banks and Services, which we may change from time to time. Capitalized terms used in this Authorization and Agreement form, not otherwise defined, have the meanings given to them in the Booklet. After I sign below on behalf of the Client, the Client may from time to time request the Bank to provide any of the Services described in the Booklet. The Client may begin to use any such Service, subject to the Banks approval, once the Bank has received from the Client all required and properly executed forms and the Client has successfully completed any testing or training requirements. The Booklet supersedes other agreements between the Client and the Bank, as described under the General Matters heading in the Booklet, with regard to the provision of Services. I warrant that the Client has taken all action required by its organizational or constituent documents to authorize me to execute and deliver on behalf of the Client this Authorization and Agreement form and any other documents the Bank may require with respect to Service. I am authorized to enter into all transactions

App. 233 contemplated by the provision of Services to the Client. These may include, but are not limited to, giving the Bank instructions with regard to Electronic Funds Transfer Services and designating employees or agents to act in the name and on behalf of the Client. Guidelines for completion: If Client is a: Who must sign: corporation . . . . . . . . . . any authorized officer limited liability all members, or any company . . . . . . . . . . . . authorized officer* partnership . . . . . . . . . all general partners* limited liability the managing partnership . . . . . . . . . partner* sole proprietorship . . . the sole proprietor governmental entity . . the Treasurer* *Clients charter or organizational or constituent documents may allow others to sign instead. Note than in most cases the Client must also complete the Certification form which follows. Date: _________________ [CLIENTS LEGAL NAME] Title: ____________________ [Print or Type] Signature By:______________________ Name: ___________________ [Print or Type]

App. 234 Address for Client Notices: ___________________________________ ___________________________________ ___________________________________ ___________________________________ Telephone No.: ____________________ Fax No.: __________________________ Address for Bank Notices: Bank of America Corporation Documentation Management P.O. Box 2718 Concord, CA 94527-9904 Fax Number: (925) 675-7131 and, if filled in, the following ___________________________ ___________________________ ___________________________ ___________________________ Fax No.:___________________

App. 235 Bank of America Authorization and Agreement Certification I certify that each signature appearing on the previous page for Client is the true signature of a person authorized to execute the form on behalf of Client, and I further certify that I have full authority to execute this certification. The Bank is entitled to rely upon this certification until written notice of its revocation is delivered to the Bank. Guidelines for completion: If Client is a: Who must sign: corporation . . . . . . . . . . any authorized officer, except it may not be the same officer who signed the Authorization and Agreement limited liability any member or any company . . . . . . . . . . . . authorized officer limited liability partnership . . . . . . . . . any general partners partnership . . . . . . . . . any general partners sole proprietorship . . . no signature required governmental entity . . the entitys counsel, or others permitted by the entitys organizational documents

App. 236 Note: If Client is not a U. S. legal entity, it is not required to complete this certification. Dated:______________ _____________________________ [CLIENTS LEGAL NAME] By: _________________________ [Signature] Name: ______________________ [Print or Type] Title: _______________________ [Print or Type]

App. 237 Bank of America Treasury Service Delegation of Authority Form This form is optional and is to be used when you wish to delegate authority to sign various authorization forms to someone other than the person who signed the Authorization and Agreement form in the front of this Booklet. By signing below, you authorize the incumbent of the specified position listed in Section A or each person listed in section B below, acting alone, to execute documents that we may request, and any amendments or renewals thereof, pertaining to the use of Services, including but not limited to designating one or more persons (which may include himself or herself) authorized to initiate, amend, cancel, confirm or verify the authenticity of instructions to us for Services, whether given orally, electronically or by facsimile instructions, and to revoke any authorization granted to any such person, as he or she deems appropriate. The signer of this form has the same authority described above for each Service with us, unless otherwise specified. We are entitled to rely upon this delegation until written notice of its revocation is received by us.

App. 238 Guidelines for Completion: Fill out either section A or section B, or both, depending on your needs. To delegate authority to any person holding a specific title, fill out section A. To delegate authority to specific individuals by name, fill out section B. For each name or title, indicate All in the Service column if the person or title has authority to sign documents for all Services which you receive from us. Otherwise, indicate specific Services for which the person or title has authority. For each name or title, indicate the entity or entities for which the person or title has authority to sign documents. Client Authorization Instructions: The same person who signed the Authorization and Agreement for Treasury Services form must sign this Treasury Services Delegation of Authority form. A. TO DELEGATE AUTHORITY TO ANY PERSON HOLDING SPECIFIC POSITIONS TITLE SERVICE ENTITY

App. 239 B. TO DELEGATE AUTHORITY TO SPECIFIC INDIVIDUALS NAME SERVICE ENTITY SPECIMEN SIGNATURE

Date: ___________________ _______________________ __________________________ [SIGNATURE] [CLIENTS LEGAL NAME] _______________________ [PRINT OR TYPE]

App. 240

SOLICITATION, OFFER AND AWARD NO. CFOPD-02-R-019 Issued May 22, 2002 [Fold Out Exhibit, see next 2 pages] [Additional selected pages of the District of Columbias RFP continue on App. 241-252]

App. 241 *** Page 42 of 69 CFOPD-02R-019 OFT Controlled Disbursement Bank Account PART I - SECTION G CONTRACT ADMINISTRATION DATA G.1 Payment/Invoices a. Invoices shall conform to Contract Clause I-27, Invoices, in the basic agreement. Unless otherwise stipulated in individual authorized orders, the Contractor shall submit invoices, to: Office of the Chief Financial Officer of the District of Columbia ATTN: Financial Operations/Accounts Payable 410 E. Street NW Washington DC 20001 Tel. 202-7270380 b. Billing Increments. The contractor may invoice the government for services performed in increments agreeable to the administrator of this contract. Claims for reimbursement of expenses shall be invoiced separately from invoices for services performed but may be submitted as incurred at the contractors option. Claims for reimbursement of travel expenses incurred as a result of temporary official duty travel away from Washington D.C., shall be submitted no later than 8 days after the conclusion of the travel.

App. 242 c. Payment of invoices is contingent upon the paying offices receipt of a signed and dated Receipt/Inspection/Acceptance report from the contracting officer. To facilitate payment, the Contractor may request, in lieu of waiting for the paying offices receipt of a completed acceptance report, that the contracting officer annotate the Contractors periodical invoices to reflect that services have been received in compliance with requirements of this contract, and that the hours billed are correct and proper. The Contractor may then hand carry the annotated invoice to the paying office. The paying offices obligation to the contractor with respect to hand carried invoices is limited to acceptance of the invoice(s) and placing of them into the system used to process payments. Page 43 of 69 G.2 Contracting Officer 1. Contracting Officer is located and may be contacted at: Office of Government Business Suite 810 941 North Capitol Street, N.E. Washington, D.C. 20002 Phone: 202-442-6427 Fax: 202-442-6454 2. The Contracting Officer is the only official authorized to contractually bind the District.

App. 243 G.3 Contract Administrator 1) The Contracting Officer appoints the following individual as Contract Administrator. Mr. Alcindor Rosier Office of Finance and Treasury Office of the Chief Financial Officer Government of the District of Columbia Phone: 202-727-6055 Fax: 202-727-6049 2) The Administrator will, have the responsibility of ensuring that the work conforms to the requirements of the contract. Any additional responsibilities and authorities shall be only those that the Contracting Officer specifies in the letter of appointment. The Contract Administrator shall not have authority to make changes in the scope or terms and conditions of the contract or to order extra goods or services beyond the quantities or time periods provided in the Schedule. 3) THE RESULTANT CONTRACTOR IS HEREBY FOREWARNED THAT ABSENT THE REQUISITE AUTHORITY OF THE CONTRACT OFFICER TO MAKE ANY SUCH CHANGES, CONTRACTOR MAY BE DENIED COMPENSATION OR OTHER RELIEF FOR ANY ADDITIONAL WORK PERFORMED THAT IS NOT SO AUTHORIZED, AND MAY ALSO BE

App. 244 REQUIRED, AT NO ADDITIONAL COST TO THE DISTRICT, TO TAKE ALL C O R R E C T I V E A C T I O N NECESSITATED BY REASON OF THE UNAUTHORIZED CHANGES. *** Page 46 of 69 Contracting Officer within 10 days of contract award. The policies of insurance shall provide for at least 30 days written notice to the District prior to their termination or material alteration. H.2 Other Contractors The Contractor shall not commit or permit any act, which will interfere with the performance of work done by any other District Contractor or by any District employee. If another Contractor is awarded a future contract for performance of the required services, the original Contractor shall cooperate fully with the District and the new Contractor in any transition activities which the Contracting Officer deems necessary during the term of the contract. H.3 Changes Only the Contracting Officer is authorized to make changes to the terms and conditions of this contract. In addition only the Contracting Officer or his/her designated ordering officer is authorized to make modifications to this contract. The scope of work may NOT be expanded through issuance of a modification.

App. 245 Price Adjustments. No supplement, surcharge, or other fee or charge in addition to the hourly rate applicable under this contract may be made. In the event an invoice is issued for a higher hourly rate not in the Schedule at Part I Section B, the government has the right to either make an appropriate adjustment without notice to the Contractor or reject the invoice. The governments liability for prompt payment starts only upon receipt of a proper invoice as defined in the section in the contract relating to invoices in Part III - Section I, Contract Clauses. H.7 Ownership The Office of the Chief Financial Officer materials supplied to the Contractor, shall remain the property of the government and must be returned to that office upon completion of work under this contract. Page 47 of 69 PART II - SECTION I CONTRACT CLAUSES 1. Order of Precedence and Contract Any inconsistency in this solicitation shall be resolved by giving precedence in the following order (if provided): A. B. C. D. The Schedule The Statement of Work Special Contract Requirements Contract Clauses

App. 246 2. Laws and Regulations Incorporated by Reference The provisions of the following Acts, and representations and stipulations required by any of the said Acts together with the provisions of applicable regulations made pursuant to said Acts, are hereby incorporated by reference and, to the extent applicable, incorporated by reference in this contract, together with the Laws of the District of Columbia, and the Material Management Manual, effective July 1, 1974, as amended. A. Contract Work Standards Act of August 13, 1962, also known as the Contract Work Hours and Safety Standards Act of 1962, 76 Stat. 357-360. B. Buy American Act, Act of March 3, 1983, c.212, Title III, 47 Stat. 1520, as amended. C. Walsh-Healy Public Contracts Act, Act of June 30, 1936, c.881, 49 Stat. 2036, as amended. (Applies only when contract is $10,000 or more). D. Commissioners Order 73-51 dated February 28, 1973 as amended, Compliance with Equal Opportunity Obligations in Contracts. E. Public Law 93-112 Rehabilitation Act of 1973 Section 504 as amended. F. Mayors Order 83-265 dated November 9, 1983 Subject: Employment Agreement Goals and Objectives for all District of Colombia Projects. G. D.C. Law 5-93, Dated May 9, 1984, the First Source Employment Agreement Act of 1984.m H. Procurement Practices Act of 1985, D.C. Law 6-110. I. Medicaid Regulations at 42 C.F. R. 447.361 & 447.362

App. 247 3. Waiver The waiver of any breach of the contract will not constitute a waiver of any subsequent breach thereof, nor a waiver of the contract. 4. Indemnification The Contractor shall indemnify and save harmless District and all its officers, agents, and servants against any and all claims or liability arising from or based on, or as a consequence of or result of, any act, omission or default of the Contractor, its employees, or its subcontractors, in the performance of this contract or any confidentially agreement required under this contract. Moneys due or to become due to the Contractor under the contract may be retained by the District as necessary to satisfy any outstanding claim which the District may have against the Contractor. 5. Transfer The parties to whom the award is made therein shall transfer no contract or any interest; such transfer will be null and void and will be cause to annul the contract. 6. Taxes The Government of the District of Columbia is exempt from, and will not pay, Federal Excise Taxes and D.C. or state Sales and Use Taxes. OFFERORS MUST EXCLUDE SUCH TAXES, AS WELL AS STATE AND CITY TAXES FROM THEIR PROPOSALS. Tax exemption certificates are no longer issued by the District for Federal Excise Tax. The following statements, as appropriate, may be used by Contractors when claiming tax deductions for Federal Excise Tax exempt items sold to the District:

App. 248 The District of Columbia government is exempt from Federal Excise Tax. Tax Exemption Registration Nr. 52-73-0206-K from the Internal Revenue Service, Baltimore MD. OR Exempt from Maryland Sales Tax, Registered with the Comptroller of the Treasury (for deliveries to District Departments or Agencies Exemption Nr. 09339 7. Officials Not To Benefit No member of or delegate to Congress, or Officer or employee of District shall be admitted to any share or part of this contract or to any benefit that may arise therefrom, and any contract made by the Contracting Officer of any District employee authorized to execute contracts in which they or the employee of the District shall be personally interested shall be void, and no payment shall be made thereon by the District or any officer thereof, but this provision shall not be construed to extend to this contract if made with a corporation for its general benefit. However, should a Federal or District employee submit a bid for his personal benefit, the Contracting Officer reserves the right to waive the aforementioned restriction; providing that said employee furnishes a Notarized Affidavit prior to the time set for opening of bids, setting forth intentions to resign his Federal or District employment in the event said employee shall be considered for an award of contract. Failure to submit such Affidavit shall automatically render his bid non-

App. 249 Page 48 of 69 responsive and no further consideration shall be given thereto. (See Representations, Certifications and Acknowledgments, Section K). 8. Disputes A. If a dispute arises under or relates to the contract, a claim by the Contractor shall be made in writing and submitted to the Contacting Officer for a written decision. A claim by the District against the Contractor shall be subject to a written decision by the Contracting Officer. B. Claim, as used in this clause, means a written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or related to the contract. A claim arising under a contract, unlike a claim relating to that contract, is a claim that can be resolved under a contract clause that provides for the relief sought by the claimant. C. the decision of the Contracting Officer shall be final and conclusive and not subject to review by any forum, tribunal or Government agency. 9. Changes The Contracting Officer may, at any time, by written order, and without notice to the surety, if any, make changes in the contract within the general scope hereof. If such changes cause an increase or decrease in the cost of performance of this contact, or in the time required for performance, an equitable adjustment shall be made. Any claim for adjustment under this paragraph must be asserted within ten (10) days from the date the change is offered, provided, however, that

App. 250 the Contracting Officer, if he determines that the facts justify such action, may receive, consider and adjust any such claim asserted at any time prior to the date of final settlement of the contract. If the parties fail to agree upon the adjustment to be made, the failure to agree shall be considered a dispute. Nothing in this clause shall excuse the Contractor from proceeding with the contract as changed. 10. Termination for Default A. The District may, subject to the provisions of paragraph C., below, by written notice of default to the Contractor, terminate the whole or any part of this contract in any one of the following circumstances: (i) If the Contractor fails to make delivery of the supplies or to perform the services within the time specified within the project work plan or any extension thereof; or (ii) If the Contractor fails to perform any of the other provisions of this contract, or so fails to make progress as to endanger performance of this contract in accordance with its terms and in either of these two circumstances does not cure such failure within a period of ten (10) days (or such longer period as the Contractor may authorize in writing) after receipt of notice from the Contracting Officer specifying such failure. B. In the event the District terminates this contract in whole or part as provided in paragraph A. above, the District may procure, upon such terms and in such manner as the Contracting Officer may deem appropriate, supplies or service similar to those so terminated; and the Contractor shall be liable to the District for any excess costs for similar supplies or service. Provided, that the Contractor shall continue the performance of this contract to the extend not

App. 251 terminated under provisions of this clause. The Contractor shall work with any subsequent contractor to ensure a smooth transfer of information for a period of sixty (60) days. C. Except with respect to defaults of subcontractors, the Contractor shall not be liable for any excess costs if the failure to perform the contract arises out of causes beyond the control and without the fault or negligence of the contractor. Such causes may include, but are not restricted to, acts of God or of public enemy, acts of the District or Federal Government in either their sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, and unusually severe weather; but in every case the failure to perform must be beyond the control and without the fault or negligence of the Contractor. If the failure to perform is caused by the default of the subcontractor, and if such default arises out of causes beyond the control of both the Contractor and the subcontractor, and without the fault or negligence of either of them, the Contactor shall not be liable for any excess cost for failure to perform, unless the supplies or services to be furnished by the contractor were obtainable from other sources in sufficient time to permit the Contractor to meet the required delivery schedule. D. If this contract is terminated as provided in paragraph A. Above, District in addition to any other rights provided in this clause, may require the Contractor to transfer title and deliver to the District, in the manner and to the extent directed by the Contracting Officer, (i) completed supplies, (ii) such partially completed supplies and materials, information, and contract rights (herein after called manufacturing materials) as the Contractor has

App. 252 specifically produced or specifically produced or specifically acquired for the performance been terminated; and the Contractor, shall, upon direction of the Contacting Officer, protect and preserve property in possession of the Contactor in which the District has an interest. Payment for completed supplies delivered to and accepted by the District shall be at the contract price. Payment for manufacturing materials delivered to and agreed upon by the Contractor and Contacting Officer, failure to agree to such amount shall be a dispute concerning a question of fact. The District may withhold from amounts otherwise due the Contractor for such completed supplies or manufacturing materials such sums as the Contracting Office determines to be necessary to protect the District against loss because of outstanding liens or claims of former lien holders. E. If after notice of termination of this contract under the provisions of this clause, it is determined for any reason that the Contractor was not in default under the provision of this clause, or that the default was excusable under the provisions of this clause, the rights and obligations of the parties shall, if the contract contains a clause providing for a termination for convenience be the same as if the notice of termination had been issued pursuant to such clause. See Paragraph 14, below Termination for Convenience of the District. F. The rights and remedies of District provided in this clause shall not be exclusive and are in addition to any rights and remedies provided by law or under this contract. G. As used in paragraph C. Above, the terms subcontractor and subcontractors means subcontractor(s) at any tier.

App. 253

APPENDIX J IN THE SUPERIOR COURT OF THE DISTRICT OF COLUMBIA CIVIL DIVISION Civil Action No. 2008 CA 007763 B [Filed January 16, 2009] ___________________________________ THE DISTRICT OF COLUMBIA, ) ) Plaintiff, ) ) v. ) ) BANK OF AMERICA, N.A., BANK ) OF AMERICA CORPORATION, ) JAYRECE ELAINE TURNBULL, ) HARRIETTE WALTERS, ) WALTER R. JONES, JR., and ) several JOHN and JANE DOES ) presently unknown, ) ) Defendants. ) ___________________________________ ) Judge Joan Zeldon Next Court Date: February 5, 2009 Event: Status Hearing

App. 254 BANK OF AMERICAS MOTION TO DISMISS OR, IN THE ALTERNATIVE, STAY BASED ON FORUM SELECTION AND ARBITRATION CLAUSES Pursuant to Rule 12 of the Superior Court Rules of Civil Procedure and 9 U.S.C. 3, Defendants Bank of America, N.A. and Bank of America Corporation (together Bank of America or Bank) respectfully move this Court to dismiss, without prejudice, the claims asserted against them in the First Amended Complaint filed by the District of Columbia (the District) on the grounds that the Districts assertion of these claims in this forum violates (1) a mandatory forum selection clause in the contract between the District and Bank of America that requires any proceeding regarding the Districts account at issue be brought in North Carolina, and (2) a mandatory arbitration clause in the contract that requires any dispute or controversy concerning the Districts account at issue be arbitrated. Alternatively, Bank of America respectfully moves that the Districts claims against Bank of America be stayed in favor of arbitration. Pursuant to Rule 12-I(a), counsel for Bank of America certifies that counsel for the District has refused to consent to this motion. Counsel for Bank of America cannot contact Defendants Jayrece Turnbull and Harriette Walters because they are currently incarcerated, and no attorney has made an appearance in this case on their behalf. Despite diligent efforts, counsel for Bank of America has not been able to contact Defendant Walter Jones to obtain his consent to this motion.

App. 255 Pursuant to Rule 12-I(f), Bank of America respectfully requests an oral argument for this motion. WHEREFORE, for the reasons stated herein and the accompanying Memorandum in Support of Bank of Americas Motion to Dismiss or, in the Alternative, Stay Based on Forum Selection and Arbitration Clauses, Bank of America respectfully requests that its motion be granted, and that the Districts claims against Bank of America be dismissed without prejudice or, in the alternative, stayed in favor of arbitration. ORAL HEARING REQUESTED. This the 16th day of January, 2009. Respectfully submitted, /s/ Timothy J. Heaphy Timothy J. Heaphy (Bar No. 444881) MCGUIREWOODS LLP Washington Square 1050 Connecticut Avenue N.W. Suite 1200 Washington, DC 20036-5317 Tel: 202.857.1723 Fax: 202.857.1737 Email: theaphy@mcguirewoods.com COUNSEL FOR BANK OF AMERICA, N.A. AND B ANK OF A MERICA CORPORATION

App. 256 /s/ Robert I. Swain Robert I. Swain (Bar No. 974632) MCGUIREWOODS LLP Washington Square 1050 Connecticut Avenue N.W. Suite 1200 Washington, DC 20036-5317 Tel: 202.857.1720 Fax: 202.828.2993 Email: rswain@mcguirewoods.com COUNSEL FOR BANK OF AMERICA, N.A. AND B ANK OF A MERICA CORPORATION

App. 257

APPENDIX K Form 1. Notice of Appeal (Tax, Civil, Family (Except Juvenile Cases), and Probate). SUPERIOR COURT OF THE DISTRICT OF COLUMBIA NOTICE OF APPEAL (______CROSS APPEAL) TAX, CIVIL, FAMILY (EXCEPT JUVENILE CASES) , AND PROBATE Superior Court Case Caption: D.C. v. BANK OF AMERICA, N.A., BANK OF AMERICA CORPORATION, et. al Superior Court Case No.: 2008 CA 007763 B A. Notice is given that (person appealing) BANK OF AMERICA, N.A. and BANK OF AMERICA CORPORATION is appealing an order/judgment from the: G Tax Division G T Civil Division G Family Court G Probate Division 1. Date of entry of judgment or order appealed from (if more than one judgment or order appealed, list all): December 9, 2009 (See Attachment 1 incorporated herein by reference). 2. Filing date of any post-judgment motion: _______ 3. Date of entry of post-judgment order: _________ 4. Superior Court Judge: JOAN ZELDON

App. 258 5. Is the order final (i.e., disposes of all claims and has been entered by a Superior Court Judge, not a Magistrate Judge)? G YES G T NO If no, state the basis for jurisdiction: see Attachment 2 incorporated herein by reference Has there been any other notice of appeal filed in this case: G YES G T NO If so, list the other appeal numbers: ___________________________ 6. If this case was consolidated with another case in this court, list the parties names and the Superior Court case number: ________________________________ B. Type of Case: G T Civil I G Neglect G Mental Health G Civil II G TPR G Probate GLandlord and Tenant G Adoption G Guardianship G Intervention

C. Indicate Status of Case: G T Paid G In Forma Pauperis G CCAN

Was counsel appointed in the trial court? G T YES G NO D. Provide the names, addresses, and telephone numbers of all parties to be served. For persons represented by counsel, identify counsel and whom the counsel represents. For each person, state whether the person was a plaintiff or defendant in the Superior Court (use additional sheets of paper if necessary):

App. 259 ADDRESS PARTY STATUS (Plaintiff, Defendant) See Attach- See Attach- See Attachment 3 ment 3 ment 3 incorporated incorporated incorporated herein by herein by herein by reference reference reference NAME TELEPHONE NOS. See Attachment 3 incorporated herein by reference

E. Identify the portions of the transcript needed for appeal, including the date of the proceeding, the name of the Court Reporter (or state that the matter was recorded on tape if no Court Reporter was present), the courtroom where the proceeding was held, and the date the transcript was ordered, or a motion was filed for preparation of the transcript.1 Attach additional pages if needed.

Appellant is responsible for ordering transcript(s) from the Court Reporting and Central Recording Division, Room 5500. If appellant has been granted In Forma Pauperis status, or had an attorney appointed by the Family Court, and transcript is needed for this appeal, appellant must file a Motion for Transcript in the Appeals Coordinators Office, Room 3148. That office number is (202) 8791731. If that motion is granted, transcript will be prepared at no cost to appellant.

App. 260 Date of Proceeding/ Portion See Attachment 4 incorporated herein by reference Reporter/ Courtroom Date ordered

See Attachment See Attachment 4 incorporated 4 incorporated herein by herein by reference reference

Check this box if no transcript is needed for this appeal. F. Person filing appeal: G Plaintiff Pro Se G Defendant Pro Se

G Third Party/Intervenor G Counsel for Plaintiff G T Counsel for Defendant ATTACH A COPY OF THE ORDER, JUDGMENT OR DOCKET ENTRY FROM WHICH THIS APPEAL IS TAKEN ROBERT I. SWAIN Print Name of Appellant/Attorney /s/Robert Swain Signature 974632 Bar No.

1050 CONNECTICUT AVENUE N.W., SUITE 1200, WASHINGTON, DC 20036-6317 Address 202.857.1720 Telephone Number See Attachment 5 incorporated herein by reference

App. 261 FORM 1: NOTICE OF APPEAL (CIVIL) SUPERIOR COURT CASE 2008 CA 007763 B ATTACHMENT 1 Response to Section A.1 (regarding order appealed from) Bank of America, N.A. and Bank of America Corporation (together Bank of America or Bank) also note that they filed with the Superior Court on December 23, 2009, a Motion to Alter or Amend Order to Certify Certain Legal Questions to the District of Columbia Court of Appeals and Motion for Expedited Review (Motion) under District of Columbia Superior Court Civil Rule 59(e). This Motion is currently pending before the Superior Court. If this Motion is granted, the Bank intends to seek discretionary review under D.C. Code 11-721(d) and D.C. Appellate Court Rule 5(a) along with its appeal as of right.

App. 262 FORM 1: NOTICE OF APPEAL (CIVIL) SUPERIOR COURT CASE 2008 CA 007763 B ATTACHMENT 2 Response to Section A.5 (regarding the basis for appellate jurisdiction) Under District of Columbia Code 11-721, Bank of America is entitled to an interlocutory appeal as of right based on the Superior Courts denial of its motion to compel arbitration. 2200 M St. LLC v. Mackell, 940 A.2d 143, 147 n.2 (D.C. 2007) (An order denying a motion to compel arbitration is a final, appealable order ... and this court therefore may exercise jurisdiction over this matter pursuant to D.C. Code 11-721, granting jurisdiction over appeals from all final orders and judgments of the Superior Court of the District of Columbia.); Woodland Ltd. Pship v. Wulff, 868 A.2d 860, 863 (D.C. 2005) (noting interlocutory appeal from trial courts order staying arbitration proceedings is proper); Masurovsky v. Green, 687 A.2d 198, 201 n.1 (D.C. 1996) (stating that the Court of Appeals has jurisdiction because the trial courts denial of the motion to compel arbitration frustrated arbitration.); Umana v. Swidler & Berlin, 669 A.2d 717, 723 (D.C. 1995) (interlocutory orders denying arbitration are appealable under D.C. Code 11721(a)(1)); Friend v. Friend, 609 A.2d 1137, 1138-39 (1992) (denial of motion seeking dismissal on the ground that a contract requires arbitration is immediately appealable); Hercules & Company, LTD v. Beltway Carpet Service, Inc., 592 A.2d 1069, 1071 (1991) (the denial of a motion to compel arbitration ...

App. 263 shall be deemed final for purposes of an appeal.); Brandon v. Hines, 439 A.2d 496, 509 (1981) (a trial courts order denying arbitration is an appealable interlocutory order) 9 U.S.C. 16(a)(1)(A) of the Federal Arbitration Act (FAA) also provides an immediate right to appeal of the denial of the motion to compel arbitration even though the parties were in state court because the contract at issue is governed by the FAA. See Triarch Industries, Inc. v. Crabtree, 158 S.W.3d 772, 774 (Mo. 2005).

App. 264

APPENDIX L IN THE DISTRICT OF COLUMBIA COURT OF APPEALS Appeal No. 10-OA-22 / Superior Court Case No. 10-CV-000078 [Filed November 15, 2010] ________________________________ BANK OF AMERICA, N.A. and ) BANK OF AMERICA ) CORPORATION, ) ) Appellant, ) ) v. ) ) THE DISTRICT OF COLUMBIA, ) ) Appellee. ) ________________________________ ) CERTIFICATION REQUIRED BY RULE 28(A)(2) OF THE RULES OF THE DISTRICT OF COLUMBIA COURT OF APPEALS The undersigned, counsel of record for Bank of America, N.A. and Bank of America Corporation (together Bank of America or Bank), certifies that the following listed parties appeared below:

App. 265 Bank of America, N.A. Appellants Bank of America Corporation Robert I. Swain (Bar No. 974632) Counsel for Appellants Ava E. Lias-Booker (admitted pro hac vice) Brian A. Kahn (admitted pro hac vice) Michelle N. Lipkowitz (admitted pro hac vice) MCGUIREWOODS LLP 2001 K Street N.W., Suite 400 Washington, DC 20006 Tel: 202.857.1720 / Fax: 202.828.2993 Email: rswain@mcguirewoods.com The District of Columbia Appellee Stacy L. Anderson Counsel for Appellee Assistant of the Solicitor General Office of the Attorney General for the District of Columbia 441 4th Street, N.W., Suite 600S Washington, DC 20001 STATEMENT OF THE ISSUES PRESENTED FOR REVIEW I. Did the District of Columbia Superior Court (Superior Court) err in holding that the D.C. Procurement Practices Act (DC PPA) withheld authority from the Districts Office of the Chief Financial Officer (OCFO) to agree to arbitrate disputes with the Bank where (i) the Supreme Court held in Preston v. Ferrer, 552 U.S. 346 (2008), that the Federal Arbitration Act (FAA) preempts state laws purporting to vest exclusive jurisdiction over disputes in other forums and (ii) the OCFO is exempt from the DC PPA?

App. 266 II. Did the Superior Court fail to adhere to the FAAs presumption of arbitrability through the misapplication of contract integration principles, the creation of a conflict between dispute resolution provisions where none existed, and the application of the DC PPA where the Districts claims were outside the jurisdiction of the DC PPA? III. Did the Superior Court err in not recognizing the Districts ratification of its agreement to arbitrate? IV. Did the Superior Court err by deciding questions of arbitrability instead of referring those issues to the arbitrator, in contravention of Rent-ACenter West v. Jackson, 2010 U.S. LEXIS 4981 (2010), and Buckeye Check Cashing v. Cardegna, 546 U.S. 440 (2006) where (i) the parties validly-executed agreements set forth an arbitration clause incorporating the AAA Rules and (ii) the Superior Courts decision to invalidate a 2000 Corporate Resolution executed by the Districts CFO resulted in a challenge to certain agreements in their entirety? V. Did the Superior Court err in not applying the parties forum selection clauses?