HomeMy WebLinkAbout133-03 RESOLUTION• •
RESOLUTION NO. 133-03
A RESOLUTION TO ACCEPT A CONTRACT WITH
BANK OF AMERICA CORPORATE PURCHASING
CARD AGREEMENT
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1. That the City Council of the City of Fayetteville, Arkansas
hereby approves and agrees to the Bank of America Corporate Purchasing Card
Agreement (attached as Exhibit A) and further authorizes the Mayor to execute
said contract.
PASSED and APPROVED this the 2nd day of September, 2003.
APPROVED:
By
ATTEST: c./
SONDRA SMITH, City Clerk
DAN COODY, May
°A611, r 33-03
BANK OF AME•A CORPORATE PURCHASING CARD ilEEMENT
This Bank of America Corporate Purchasing Card Agreement (the "Agreement") is made by and between Bank of America, N.A. (USA),
("Bank of America"), a national banking association, and City of Fayetteville ("Company") and shall be effective as of the Effective Date set forth below.
Recitals
A. Bank of America is a member of MasterCard® International Incorporated ("MasterCard") and Visa U.S.A. Inc ("Visa") with full power
and authority to issuc cards for business and commercial use;
B. Bank of America issues and services corporate purchasing cards for business and commercial use; and
C. Company desires to obtain and use, and Bank of America desires to issue to Company, one or more corporate purchasing card accounts
which will be subject to the terms and conditions in this Agreement.
NOW, THEREFORE, for valuable consideration, the panics agree as follows.
1. DEFINITIONS.
A. "Account" means each MasterCard or Visa Corporate Purchasing Card account, including a Cardless Account, which Bank of America (i)
issues pursuant to this Agreement or (ii) issued (and still outstanding as of the Effective Date of this Agreement) pursuant to a previous agreement no
longer in effect. Each reference in this Agreement to "the Account" will mean Company's Account, a Participant's Account, a Cardholder's Account. or
any combination of them, as applicable.
B. "Billing Statement" means the official invoice provided to Company, Participant and/or Cardholder which identifies each Transaction posted
during the billing cycle, the date of each Transaction and the applicable fees and charges. Unless otherwise determined by Bank of America, the official
invoice is in paper, not electronic, medium.
C. "Business Use" mcans use for business-related purposes.
D. "Card" means each plastic charge card which Bank of America issues or has issued for the Account which is not a Cardless Account.
E. "Card Administrator" means an individual or individuals authorized by Company or a Participant, as applicable, to request Bank of America to
add or delete Cards or Convenience Checks and to communicate with Bank of America and take other action needed to maintain the Account.
F. "Cardholder" means an employee or agent of Company or of a Participant who Company or a Participant designates in writing and who Bank
of America approves to receive an Account or a Device, including a Cardless Account. If a Cardholder or a Card Administrator makes a Device
available for use by another party, that person will be considered a Cardholder.
G. "Cardless Account," also called a "Control Account;' means an Account for which Bank of America assigns only an Account number, but
provides no Card or Convenience Checks.
H. "Cash Advance" means use of the Account to obtain cash from a participating financial institution or merchant or from an ATM, to write
Convenience Checks, or to obtain items readily convertible into cash including, without limitation, money orders, travelers checks, foreign currency,
lottery tickets, casino chips and racetrack wagers.
i. "Convenience Check" means each check which Bank of America at its discretion provides to Company or a Participant to use the Account.
J. "Device" means a device such as a Card, Account number or, where applicable, a Convenience Check which Bank of America provides under
this Agreement to use to make Transactions or other charges on the Account.
K. "Guarantor" means a person or entity, other than Company or a Participant, that agrees to assume responsibility for the obligations of this
Agreement. including payment of any amounts owcd.
L. "Panicipant" means a subsidiary, affiliate or division of Company which Company designates in writing on a Participant Account Form and
which Bank of America approves. for Bank of America to issue an Account with its own Account number. A Participant Account Form, upon
completion by Company and approval by Bank of America, will be made a part of this Agreement.
M. "Payment Due Date" means the payment due date shown on the Account Billing Statement which date shall be thc last day of the Settlement
Period.
N. "Settlement Period" mcans thc number of days after the statement closing date within which payment is due, as designated in Schedule A
hereto.
O. "Transaction" mcans a purchase or reservation of goods or services or a Cash Advance made or facilitated by use of a Device or the Account.
P. "Unauthorized Use" means use of the Account or a Device by a person (i) who is not a Cardholder; (ii) who does not have actual, implied or
apparent authority to use the Account or Dcvicc; and (iii) whose use does not result in a direct or indirect benefit for Company, a Participant or
Cardholder.
2. EXCLUSIVITY.
Company grants Bank of America the exclusive right to issue and provide to Company, each Panicipant and each Cardholder credit cards for use in
connection with the procurement of goods and services incidental to Company's or Participant's business or business activities, including travel and
entertainment expenses. During the term of this Agreement, Company will use no other card issuer for this purpose.
3. USE OF ACCOUNT AND DEVICES.
A. The Account and Devices will be used only for Transactions in connection with the procurement of goods and services incidental to
Company's or Participant's business or business activities, including travel and entertainment expenses.
B. The Account will be used for Business Use only, and Company will so advise and require each Cardholder and each Participant accordingly.
Company will pay for Transactions and fees which Bank of America applies to the Account or Devices.
C. Company and each Participant will follow, and will take all steps necessary or prudent to require each Cardholder to follow. the following
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procedures: • •
I. A Cardholder using a Card for a Transaction may sign a sales draft or Cash Advance draft which the merchant's financial institution
processes. However, failure to sign a sales draft or receive a sales receipt will not relieve Company of its obligations under this
Agreement. Company should retain or should direct each Cardholder to retain each sales draft or Cash Advance draft as a record of the
Transaction.
2. A Card will not be used before the Card's valid date or after the Card's expiration date.
3. Company and cach Cardholder will check to see that the information embossed on a new Card or printed on Convenience Checks and sent
to Company or Cardholder is correct. If there is an error, Company will notify Bank of Amcrica immediately.
D. If Bank of America provides Convenience Checks, they may not be used to make payment on the Account or any other loan or line of credit.
Convenience Checks will not be returned to Company or any Participant or Cardholder. Bank of Amcrica may pay a Convenience Chcck and post its
amount to the Account regardless of any restriction on payment, including, without limitation, a Convenience Check which is post-dated, states that it is
void after a certain date or states a maximum or minimum amount for which it may be written. To stop payment on a Convenience Check, Company or
Cardholder must call Bank of America at the Customer Service number shown on the Account Billing Statement with all the following information: the
exact dollar amount of the Convenience Check; the Convenience Check number; the Account number; the name of the party to whom the Convenience
Check was written and thc name of the person who signed the Convenience Check. Bank of America will stop payment on the Convenience Chcck if
Bank of Amcrica receives thc stop payment request by the business day before the day Bank of America pays the Convenience Check. The date Bank of
America pays the Convenience Check may be before the date it posts to the Account. The stop payment order will remain effective for six (6) months.
E. Bank of America may, at the request of Company or a Participant, establish a Cardless Account.
F. If Company or Participant desires to terminate the Account or Card use (including, where applicable, use of Convenience Checks) by a
Cardholder, Company or Participant, as applicable, will notify Bank of America and will destroy the Devices issued or provided to that Cardholder.
Company may exclude a Participant from the Account by giving Bank of America written notice, and Bank of America will have a reasonable period of
time to act on any such notice. If this Agreement terminates, Company will be responsible for promptly destroying all Devices for thc Account.
G. A Transaction may require the merchant, supplier or financial institution to seek prior authorization from Bank of America before completing
the Transaction. If Company advises Bank of America in writing of its desire to restrict a certain type of Transaction identified by a certain merchant
category ("Merchant Category Code"), Bank of America will take reasonable steps to withhold a requested authorization of that Transaction type,
provided it is identified by the appropriate Merchant Category Code. However, Bank of America will not be liable to Company if merchants, suppliers
or financial institutions nonetheless accept a Card or the Account for that Transaction type.
H. Bank of America is not liable if a merchant or supplier does not honor a Card or if authorization is not given.
I. If Participant is or no longer will be a majority -controlled subsidiary, affiliate or division of Company, Company must notify Bank of America
immediately; Bank of America will have the right to terminate any Account or Device which that Participant or Participant's Cardholders use.
J. Bank of America may, at the request of Company or a Participant, establish an Account with a designation which is not an actual individual,
including, without limitation, a vehicle identification number, license number, department name or "Authorized Representative".
K. Bank of America may deny authorization for any Transaction if Bank of America suspects fraudulent activity or Unauthorized Use, or for other
reasons. Bank of America is not liable for any failure to authorize a Transaction.
4. CHARGE LIMIT.
A. There will be one total charge limit for the Company Account and Participant Account ("Aggregate Charge Limit"). Each Card will have its
own charge limit ("Card Limit"). In its sole discretion, and for purposes of limiting potential losses or for administering time -sensitive requests, Bank of
America may increase or decrease the Aggregate Charge Limit or any Card Limit.
B. Company, a Participant and Cardholders will not incur Transactions which would cause the sum of Company's and Participant's unpaid balance
to exceed thc Aggregate Charge Limit or to cause a Card Limit to be exceeded. Any amount exceeding thc Aggregate Charge Limit or Card Limit shall
be immediately due and payable.
C. If the Aggregate Charge Limit or a Card Limit is exceeded, or if an Account payment is late, Bank of America shall no longer be obligated to
allow any further Transactions.
S. COMPANY LIABILITY; ACCEPTANCE OF AGREEMENT.
A. By activating, signing or using any Device or Account, Company agrees to be bound by this Agreement regardless whether Company signs this
Agreement. Company will pay Bank of America for all Transactions, whether Company or Cardholder billed, regardless of the purpose for which the
Transaction is made, and for applicable fees and charges described in Schedules A and B.
B. Company's responsibility for Card and Account usage will continue until: (I) Receipt by Bank of America of Company's or a Participant's
written notice to close the Card or the Account; (2) actual closure of the Account by Bank of America; and (3) payment to Bank of America of all
amounts due under this Agreement.
C. Company docs hereby grant to Bank of Amcrica a security interest and contractual right of offset in and to, all deposit accounts now or
subsequently maintained by the Company with Bank of America or any of its affiliates and subsidiaries. The Company, by its execution of this
Agreement or use of a Device, authorizes Bank of America to enter into a master control agreement with its affiliates and subsidiaries authorizing, upon
the occurrence and continuance of any default under this Agreement, the disposition of funds in any such deposit account to satisfy all liabilities incurred
hereunder, without the further consent of the Company. The Company's execution of this Agreement or use of a Device shall constitute an authenticated
record for thc purposes of establishing control of such deposit accounts under the Uniform Commercial Code.
D. Company agrees to indemnify Bank of America and hold Bank of America harmless from, all claims, actions, losses, costs and expenses
(including attorneys' fces and allocated costs for in-house legal services) incurred by Bank of America arising from any Unauthorized Use of a Cardless
Account or Account established in the name of "Authorized Representative," a department name or other such designation that is not an actual
individual. This Section S.D. takes precedence over any restriction on Company's liability contained in this Agreement.
6. BILLING STATEMENTS.
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A. Bank of America will provide a Billin tement to the Card Administrator or to such otompany employee or agent as Company
designates in writing.
B. Dank of America may provide Company and the Participant, as applicable, a monthly report listing each Cardholder who has an Account
balance unpaid since the Payment Duc Date on the most recent Billing Statement issued to thc Cardholder and therefore is subject to cancellation of
Account charge privileges ("Delinquency Report"). Providing the Delinquency Report shall not constitute a waiver by Bank of America of any rights
and remedies it may have under this Agreement.
7. PAYMENTS.
A. Company will pay Bank of Amcrica the total amount of the new balance shown as due on each Billing Statement on or before the Payment Due
Date shown on that Billing Statement. If Company docs not make payment in full by thc Payment Due Date, Bank of America, at its option, may assess
a late fee and finance charge in accordance with this Agreement. Assessment of a late fee or finance charge shall not be deemed to extend the time for
any payment hereunder or to constitute a "grace period" in which to cure any default.
B. Company or a Participant may arrange for direct Account payment to Bank of America from Cardholders. No such arrangement will amend or
modify Company's liabilities, including responsibility for payment, in this Agreement.
C. There is no right to defer any payment due on the Account.
D. Company shall make payment electronically via the Automated Clearing House (ACH), and Bank of America may initiate ACH debits to any
deposit account specified by Company at any financial institution.
E. All remittances must include the complete Account number in order to be processed. Failure to include the complete Account number shall
constitute a failure to make the payment.
8. CARD ADMINISTRATOR. Company will identify one or more Card Administrator(s) who will be Bank of America's primary contact for such
things as: designation of Cardholders, designation of Cardholders to receive any Devices, and correspondence regarding the Account or this Agreement,
except as provided elsewhere in this Agreement. Company may add, change or eliminate a Card Administrator by giving Bank of America written
notice.
9. LOST OR STOLEN CARDS.
A. Each Transaction resulting from use of a Device will be assumed to be an authorized Transaction unless Bank of America has received prior
written notice from Company or a Participant, as applicable, that the Cardholder is no longer authorized to use the Account.
B. If a Device such as a Card or Convenience Check is lost or stolen, or if there is possible Unauthorized Use, Company must require each
Participant and Cardholder to notify Bank of America as soon as practically possible within the first 24 hours following discovery of the loss or theft or
possible Unauthorized Use by phoning Bank of America at the phone number provided for such notice on the Billing Statement, with written
confirmation as requested in connection with Bank of America's investigation. If (i) notice as provided in this Section is given within the first 24 hours;
and (ii) Company assists Bank of America in investigating facts and circumstances relating to thc loss or theft or possible Unauthorized Use of any
Device, including without limitation, obtaining an affidavit or similar written, signed statement from the Cardholder, then Company or Participant, as
applicable, will not be liable for Transactions resulting from Unauthorized Use .
10. LICENSE TO USE COMPANY'S MARKS. If requested by Company, Bank of America may place Company's trademark, tradename, service
mark and/or designs ("Company's Marks") on the Card and collateral materials. Company shall provide the graphics to Bank of America in sufficient
time to allow for review and approval by Bank of America and, if necessary, the respective card association. Company grants to Bank of America a non-
exclusive license to use, during the term of this Agreement, Company's Marks on the Cards and on other materials related to the Accounts. Company
agrees to defend, indemnify and hold harmless Bank of Amcrica, its affiliates and their respective directors, officers, agents and employees for any and
all losses, costs, liabilities or expenses (including, without limitation, attomcys' and expert witnesses' fees) incurred or arising from any claim that the use
of any of Company's Marks infringes the intellectual property rights of any third party.
11. SOFTWARE.
A. The use of Visa InfoSpan software, MasterCard Smart Data software or any other third party software program and related documentation, if
any, provided in connection with this Agreement shall be govemed by the terms of the end-user agreement accompanying the software.
B. Upon payment of the requisite license and related fees, Bank of America grants Company a non-exclusive, non -transferable, enterprise license
to use for internal business purposes the EAGLS® software ("Software") and documentation as amended from time to time by Bank of America
('Documentation") which is provided by Bank of America to Company. Title, ownership rights and intellectual property rights in the Software and
Documentation shall remain in Bank of America or its parent, Bank of America Corporation. Company acknowledges such ownership and intellectual
property rights and will not take any action to jeopardize, limit or interfere in any manner with Bank of America's or its parent company's rights with
respect to the Software or Documentation. Company agrees to use the Software and Documentation as specified by Bank of America.
12. FEES. Company agrees to pay the fees and charges set forth in Schedule A and Schedule D hereto which arc incorporated herein by reference.
13. FINANCE CHARGE. In the event Company fails to pay the total amount shown as due on a Billing Statement by the Payment Due Date shown on
that Billing Statement, the amount unpaid shall be subject to a finance charge starting no sooner than the first day of the next billing cycle. To calculate
the finance charges for a billing cycle, the daily periodic rate is multiplied by the average daily balance, and that product is multiplied by the number of
days in the billing cycle. The daily periodic rate is the annual percentage rate divided by 365. The annual percentage rate is the prime rate published in
the Money Rates section of The Wall Street Journal in effect on the first day of each calendar month (the "Prime Rate") plus the number of percentage
points stated in Schedule A. The average daily balance is the sum of the daily past due balances (including, for each day, finance charges from previous
day) less payments credited to the past due balance, divided by the number of days in the billing cycle.
14. AMENDMENT OF THIS AGREEMENT. Bank may, upon written notice to Company, amend this Agreement by changing, adding or deleting
any term, condition, service or feature of an Account or of this Agreement. Company shall have thirty (30) days from the effective date of the
amendment to notify Bank of America in writing that thc amendment is not accepted. Any such notice of non-acceptance shall be deemed to be a notice
of termination under Section 19 of this Agreement. Failure of Company to provide a notice of non-acceptance within thirty (30) days after the effective
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date of an amendment will mean that Company h&•epted the amendment. Unless otherwise stated, an1uendment will apply to an Account's unpaid
balance and to new activity on the Account.
13. MERCHANT/SUPPLIER CLAIMS AND DISPUTES
A. Bank of Amcrica will have no liability, and Company and each Participant and Cardholder will hold Bank of Amcrica harmless, for all
Transactions and for use of the Account. Company will make a good -faith effort to resolve with a merchant or supplier any claim or dispute arising from
a Transaction and waives any claim against Bank of America for any merchant's or supplier's refusal to honor any Device.
B. In a dispute with a merchant or supplier, the rights of the Company, any Participant and each Cardholder against the merchant or supplier will
become the rights of Bank of America, and Company and Participant will assign (and require the affected Cardholder to assign) to Bank of America cach
of their rights to assert a billing error against thc merchant or supplier. Company and the Participant will, and will require thc Cardholder to, do
whatever is necessary to enable Bank of Amcrica to exercise those rights. Bank of America may reverse from the Account any credits relating to the
dispute.
16. FOREIGN TRANSACTIONS. MasterCard or Visa, as applicable, will convert to U.S. dollars any Transaction made in a currency other than U.S.
dollars in accordance with the card association's applicable rules. The conversion rate on the conversion date may differ from the conversion rate on the
Transaction date. Currently, MasterCard/Visa uses a currency -conversion rate of either a wholesale market rate or a government -mandated rate,
increased by an adjustment factor determined by Bank of America and Visa or MasterCard. In each case, Visa uses the rate in effect one day before the
conversion date and MasterCard uses a rate for the processing cycle. The adjustment factor, which is subject to change without notice, is currently I% of
the U.S. dollar amount, of which Bank of America receives 0% and Visa or MasterCard receives thc remainder.
17. REPRESENTATIONS AND WARRANTIES.
A. Company and each Participant, as applicable, represents and warrants to Bank of America that:
I. In each state in which it conducts its business, itis properly licensed, in good standing, and, where required, in compliance with fictitious
name statutes.
2. All financial and other information that it has supplied or will supply to Bank of America, including without limitation, all information on its
application for the Account, is (a) accurate; (b) sufficiently complete to give Bank of America accurate knowledge of its and any Guarantor's financial
condition; (c) in compliance with all laws and regulations that apply.
3. There is no lawsuit, tax claim or other dispute pending or threatened against it which, if lost, would impair Company's financial condition
or ability to repay Bank of America under this Agreement, except as has been already disclosed in writing to Bank of America.
B. Bank of America represents and warrants to Company and each Participant that Bank of America is a national banking association with its
principal office in Phoenix, Arizona.
C. Each party to this Agreement (Company, each Participant and Bank of America) represents and warrants that:
I. There is no event which constitutes, or with notice or (apse of time or both would constitute, a default on its part under this Agreement.
2. Each person signing this Agreement below on its behalf presently hold the title set next to his/her name and is duly authorized by it to bind
the party to the terms and conditions of this Agreement.
18. PERIODIC REVIEW OF COMPANY.
A. During thc term of this Agreement, when Bank of America from time to time requests information from Company or a Participant for the
purpose of reviewing Company's or Participant's ability to perform its obligations under this Agreement, Company will fumish the inforrnation
promptly. Bank of America and its affiliates and processing agents may exchange information about Company and Participants as that information
pertains to the rights and obligations in this Agreement.
B. Company will notify Bank of America in writing immediately of any change in the business name, the principal officers like the Chief
Executive Officer and Chief Financial Officer, the mailing address or thc phone number of Company or a Participant. Company will also notify Bank of
America of any change of mailing address or phone number of any of its Cardholders.
19. TERMINATION. Either party may terminate this Agreement with or without cause upon sixty (60) days' prior wrinen notice to the other party.
20. EVENTS OF DEFAULT
The following are events of default hereunder: (a) the failure to pay or perform any obligation, liability or indebtedness of Company, a Participant or a
Guarantor (each, an "Obligor") to Bank of America, or to any affiliate or subsidiary of Bank of America Corporation, whether under this Agreement or
any other agreement, as and when due (whether upon demand, at maturity or by acceleration); (b) the failure to pay or perform any other obligation,
liability or indebtedness of any Obligor to any other party; (c) the death of any Obligor (if an individual); (d) thc resignation or withdrawal of any partner
or a material owner of any Obligor as determined by Bank of America in its sole discretion; (c) the commencement of a proceeding against any Obligor
for dissolution or liquidation, the voluntary or involuntary termination or dissolution of any Obligor or thc merger or consolidation of any Obligor with
or into another entity; (f) the insolvency of, the business failure of, the appointment of a custodian, trustee, liquidator or receiver for or for any of the
property of, thc assignment for the benefit of creditors by, or the filing of a petition under bankruptcy, insolvency or debtor's relief law or the filing of a
petition for any adjustment of indebtedness, composition or extension by or against any Obligor; (g) the determination by Bank of America that any
representation or warranty rude to Bank of America or to any affiliate or subsidiary of Bank of America Corporation by any Obligor in any agreement or
otherwise is or was, when it was rude, untrue or materially misleading; (h) the failure of any Obligor to timely deliver such financial statements,
including tax returns, other statements of condition or other information, as Bank of America shall request from time to time; (i) the entry of a judgment
against any Obligor which Bank of America deems to he of a material nature, in Bank of America's sole discretion; (j) the seizure or forfeiture of, or thc
issuance of any writ of possession, garnishment or attachment, or any turnover order for any property of any Obligor; (k) the determination by Bank of
Amcrica that it is insecure for any reason; (I) the determination by Bank of America that a material adverse change has occurred in the financial condition
of any Obligor; (m) the determination by Bank of America that any Obligor fails to meet the credit criteria initially used by Bank of America to approve
Obligor; or (n) the failure of any Obligor to comply with any law or regulation controlling its operation.
21. REMEDIES UPON DEFAULT. Whenever there is a default under this Agreement, (a) the entire balance outstanding on all Accounts and all
other obligations of any Obligor to Bank of America (however acquired or evidenced) shall, at the option of Bank of America, become immediately due
and payable; (b) any obligation of Bank of America to permit further Transactions under this Agreement shall immediately cease and terminate; and/or
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(c) this Agreement or any Account may be terminally Bank of America. The foregoing remedies are it�ition to any other rights of Bank of
America under this Agreement.
22. EFFECT OF TERMINATION. Upon termination of this Agreement. Company will be responsible for promptly destroying all Devices.
Termination will not affect Company's liability for any charges or other obligations under this Agreement. After termination, this Agreement (except thc
ability to use the Account for additional Transactions) will remain in force until all Transactions and Company's other obligations undcr this Agreement
arc paid and satisfied in full. Further, Company shall ensure that no new Transactions are made on the Account. However, if any Transactions are made
after termination, Company will continue to be liable until thcy are paid in full.
23 GOVERNING LAW. This Agreement is made in Arizona. This Agreement and the Account, as well as Bank of America's rights and duties
regarding this Agreement and the Account, will he governed by the laws respecting national banking associations and, to the extent not so covered, by
the laws of the State of Arizona, regardless of where Company resides or where a Cardholder uses the Account at any time. Company will submit to the
personal jurisdiction of any state or federal court or of Judicial Arbitration and Mediation Service ("JAMS") located in thc State of Arizona.
24. ARBITRATION.
A. This paragraph concerns the resolution of any controversies or claims between the panics, whether arising in contract, tort or by statute,
including but not limited to controversies or claims that arise out of or relate to: (i) this Agreement (including any amendments or modifications); or (ii)
any document related to this agreement; (collectively a "Claim").
B. Al the request of any party to this agreement, any Claim shall be resolved by binding arbitration in accordance with the Federal Arbitration Act
(Title 9, U. S. Code) (the "Act"). The Act will apply even though this agreement provides that it is governed by the law of a specified state.
C. Arbitration proceedings will be determined in accordance with the Act, the applicable rules and procedures for the arbitration of disputes of
JAMS or any successor thereof, and the terms of this paragraph. In the event of any inconsistency, the terms of this paragraph shall control.
D. The arbitration shall be administered by JAMS and conducted in the state specified in the governing law section of this agreement. All Claims
shall be determined by one arbitrator; however, if Claims exceed $5,000,000, upon the request of any pany, the Claims shall be decided by three
arbitrators. All arbitration hearings shall commence within 90 days of the demand for arbitration and close within 90 days of commencement and the
award of the arbitrator(s) shall be issued within 30 days of thc close of the hearing. However, the arbitrator(s), upon a showing of good cause, may
extend the commencement of the hearing for up to an additional 60 days. The arbitrator(s) shall provide a concise written statement of reasons for the
award. The arbitration award may be submitted to any court having jurisdiction to be confirmed and enforced.
E. The arbitrator(s) will have the authority to decide whether any Claim is barred by the statute of limitations and, if so, to dismiss the arbitration
on that basis. For purposes of the application of the statute of limitations, the service on JAMS under applicable JAMS rules of a notice of Claim is the
equivalent of the filing of a lawsuit. Any dispute concerning this arbitration provision or whether a Claim is arbitrable shall be determined by the
arbitrator(s). Thc arbitrator(s) shall have the power to award legal fees pursuant to the terms of this agreement.
F. This paragraph does not limit thc right of any party to: (i) exercise self-help remedies, such as but not limited to, setoff; (ii) initiate judicial or
nonjudicial foreclosure against any real or personal property collateral; (iii) exercise any judicial or power of sale rights, or (iv) act in a court of law to
obtain an interim remedy, such as but not limited to, injunctive relief, writ of possession or appointment of a receiver, or additional or supplementary
remedies.
C. The filing of a court action is not intended to constitute a waiver of the right of any party, including the suing party, thereafter to require
submittal of the Claim to arbitration.
25. COSTS AND ATTORNEY FEES. If either party incurs expenses related to the enforcement of, or takes collection action under, this Agreement,
the prevailing party is entitled to recover from the other party costs and reasonable attorney fees.
26. TELEPHONE MONITORING. Bank of America may listen to and/or record telephone calls between a Bank of America employee and any
person acting on Company's or a Participant's behalf for the purpose of monitoring and improving the quality and effectiveness of Bank of America's
communication.
27. SUCCESSORS AND ASSIGNS. This Agreement and all terms and conditions hereof, arc not assignable or transferable by Company or any
Participant without Bank of America's prior written consent. All the terms and provisions of this Agreement will inure to the benefit of and be binding
upon each party and its successors and permitted assigns.
28. NOTICES. Any notice required or permitted under this Agreement shall be effective only if it is in writing and (i) personally delivered, (ii) sent by
U.S. mail, postage prepaid, (iii) sent by a nationally recognized overnight delivery service, with delivery confirmed, (iv) telecopicd, if confirmed with an
error -free transmission report, or (v) c -mailed to such e-mail address as shall have been fumished to the other party, with delivery confirmed addressed
as set forth below. Such notices shall be deemed to have been duly given either five (5) business days after the date of mailing by U.S. mail as described
above or if otherwise sent, on the business day of receipt. Notices delivered after 5:00 p.m. shall be considered received on the next business day. A
party may alter the address or tclecopy number to which notices arc to be sent by giving notice of such change in conformity with the provisions of this
Section 28.
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Notices to Bank of America must be sent to:
A. (for U.S. Mail)
Bank of America
P.O. Box 2463
Spokane, WA 99210-2463
(for overnight delivery service)
Bank of America
Commercial Card
Floor 2
1616 South Rustle Street
Spokane, WA 99224
OR:
•
B. Bank of America's Large Corporate and Commercial
Card Services representative for Company's program
at the address designated during implementation of
Company's program.
C. WITH A COPY to the following address if the notice relates to a Claim:
Counsel for Commercial Card Services
Bank of America Legal Department
101 South Tryon Street
NC 1-002-29-01
Charlotte, NC 28255
Notices to Company must lint to:
A. City of Fayetteville
Mayor Dan Coody
113 W Mountain
Fayetteville, AR 72701
Telephone: 479/575-8289
e-mail: dcoody(aci.fayetteville.ar.us
29. SEVERABILITY. If any provision of this Agreement is held to be invalid, void or unenforceable, all other provisions in this Agreement will
remain valid and enforceable.
30. LIMITATION OF LIABILITY. BANK OF AMERICA SHALL NOT BE LIABLE TO COMPANY, ANY PARTICIPANT OR CARDHOLDER,
FOR ANY ACTION TAKEN OR OMITTED TO BE TAKEN IN CONNECTION WITH THIS AGREEMENT EXCEPT FOR DIRECT DAMAGES
ARISING FROM BANK OF AMERICA'S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT. IN NO EVENT SHALL BANK OF
AMERICA BE LIABLE TO COMPANY, ANY PARTICIPANT OR CARDHOLDER, FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL OR
PUNITIVE DAMAGES OR LOST PROFITS OR LOST DATA.
31. WARRANTY DISCLAIMER. ALL SERVICES, EQUIPMENT, SOFTWARE AND OTIIER PRODUCTS FURNISHED BY BANK OF
AMERICA TO COMPANY OR A PARTICIPANT ARE PROVIDED ON AN "AS 15;* "AS AVAILABLE" BASIS AND BANK OF AMERICA
EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A
PARTICULAR PURPOSE.
32. ONE AGREEMENT. This Agreement and any other agreements required by this Agreement, collectively: (a) represent the sum of the
understandings and agreements between Bank of America and Company concerning the subject matter of this Agreement; (b) replace any prior oral or
written agreements between Bank of America and Company conccming this Agreement, and (c) are intended by Bank of America, Company and each
Participant as the final, complete and exclusive statement of the agreement between/among them. No failure on the pan of Bank of America to exercise,
and no delay in exercising any right under this Agreement, will operate as a waiver of that right. Unless other provisions in this Agreement expressly
provide otherwise, the terms of this Agreement will prevail if there is a conflict between this Agreement and any other agreements required by this
Agreement.
IN WITNESS WHEREOF, the panics hereby execute this Agreement as of the Effective Date shown below.
BANK OF AMERICA, N. . (USA) j / CITY OF FAYETTE
Signature:
Name:
Title:
Date:
7711
PAU J• B/NDER
SJP
9 J9/03
EFFECTIVE DATE:
C'pI C'wµ.ue_ WreAamF_ C.vd_Apemrnr_29 I W. Foul Re,. 3/02
Signature:
Name: Dan Coody
Title: Mayor
Date: 9/3/03
Telephone Number: 479/575-8289
6
• •
ADDENDUM TO BANK OF AMERICA
CORPORATE PURCHASING CARD AGREEMENT
THIS ADDENDUM (the Addendum") is dated September 3, 2003 by and between City of
Fayetteville ("Company") and Bank of America, N.A. (USA) ("Bank of America") and amends
the Bank of America Corporate Purchasing Card Agreement between the parties dated
September 3, 2003 (the "Agreement").
WHEREAS, the parties desire to add to and modify certain terms of the Agreement;
NOW, THEREFORE, for valuable consideration, the parties hereby agree as follows:
1. DEFINITIONS
Terms capitalized herein and not otherwise defined shall be given the meaning ascribed to
them in the Agreement.
2. AMENDMENTS
GENERAL. All references to "Company" arc revised to "City of Fayetteville".
Section 1. DEFINITIONS. As Company does not desire Convenience Checks, Section 1,
paragraph E, of the Agreement is deleted in its entirety and replaced by the following:
E. "Card Administrator" means an individual or individuals authorized by Company or a
Participant, as applicable, to request Bank of America to add or delete Cards and to
communicate with Bank of America and take other action needed to maintain the
Account.
Section 1. DEFINITIONS. As Company does not desire Convenience Checks, Section 1,
paragraph G, of the Agreement is deleted in its entirety and replaced by the following:
G. "Cardless Account, " also called a "Control Account," means an Account for which Bank
of America assigns only an Account number, but provides no Card.
Section 1. DEFINITIONS. As Company does not desire Cash Advances or Convenience
Chccks, Section 1, paragraph H, of the Agreement is deleted in its entirety.
Section 1. DEFINITIONS. As Company does not desire Convenience Checks, Section 1,
paragraph I, of the Agreement is deleted in its entirety.
415791 -Addendum to BA Corporate Card Agreements Page I of 4
• •
Section 1. DEFINITIONS. As Company does not desire Convenience Checks, Section 1,
paragraph J, of the Agreement is deleted in its entirety and replaced by the following:
J. "Device" means a device such as a Card or Account number, which Bank of America
provides under this Agreement to use to make Transactions or other charges on the
Account.
Section 1. DEFINITIONS. As Company docs not desire Cash Advances, Section 1,
paragraph 0, of the Agreement is deleted in its entirety and replaced by the following:
O. "Transaction" means a purchase or reservation of goods or services made or facilitated by
use of a Device or the Account.
Section 3. USE OF ACCOUNT AND DEVICES. As Company does not desire Cash
Advances, Section 3, paragraph C, clause 1, of the Agreement is deleted in its entirety and
replaced by the following:
1. A Cardholder using a Card for a Transaction may sign a sales draft which the merchant's
financial institution processes. However, failure to sign a sales draft or receive a sales
receipt will not relieve Company of its obligations under this Agreement. Company
should retain or should direct each Cardholder to retain each sales draft as a record of the
Transaction.
Section 3. USE OF ACCOUNT AND DEVICES. As Company does not desire
Convenience Checks, Section 3, paragraph C, clause 3, of the Agreement is deleted in its
entirety and replaced by the following:
3. Company and each Cardholder will check to see that the information embossed on a new
Card and sent to Company or Cardholder is correct. If there is an error, Company will
notify Bank of America immediately.
Section 3. USE OF ACCOUNT AND DEVICES. As Company docs not desire
Convenience Checks, Section 3, paragraph D, of the Agreement is deleted in its entirety.
Section 3. USE OF ACCOUNT AND DEVICES. As Company docs not desire
Convenience Checks, Section 3, paragraph F, of the Agreement is deleted in its entirety and
replaced by the following:
F. If Company or Participant desires to terminate the Account or Card use by a Cardholder,
Company or Participant, as applicable, will notify Bank of America and will destroy the
415791 -Addendum to BA Corporate Card Agreements Page 2 of 4
• •
Devices issued or provided to that Cardholder. Company may exclude a Participant from
thc Account by giving Bank of America written notice, and Bank of America will have a
reasonable period of time to act on any such notice. If this Agreement terminates,
Company will be responsible for promptly destroying all Devices for the Account.
Section 5. COMPANY LIABILITY; ACCEPTANCE OF AGREEMENT. Section 5,
paragraph D, of the Agreement is deleted in its entirety and replaced by the following:
To the extent permitted by law, the City shall indemnify and defend Bank of America against
any and all claims, actions, losses, suits, and demands for damages or costs and expenses
(including attorney fees) related to this Agreement. This indemnification does not waive or
reduce the City's statutory immunity as to any third party claimants nor provide any third
party beneficiary rights to any claimant or other person or entity. This indemnification shall
apply to all usage of a Cardless Account or Account established in the name of "Authorized
Representative," a department name or other such designation that is not an actual individual
regardless of any restriction on Company's liability contained in this Agreement.
Section 9. LOST OR STOLEN CARDS. Section 9, paragraph B, of the Agreement is
deleted in its entirety and replaced by the following:
B. If a Device such as a Card or Account Number is lost or stolen, or if there is possible
Unauthorized Use, Company must require each Participant and Cardholder to notify
Bank of America as soon as practically possible within the first 24 hours following
discovery of the loss or theft or possible Unauthorized Use by phoning Bank of America
at the phone number provided for such notice on the Billing Statement, with written
confirmation as requested in connection with Bank of Amcrica's investigation. If (i)
notice as provided in this Section is given within the first 24 hours; and (ii) Company
assists Bank of America in investigating facts and circumstances relating to the loss or
theft or possible Unauthorized Use of any Device, including without limitation, obtaining
an affidavit or similar written, signed statement from the Cardholder, then Company or
Participant, as applicable, will not be liable for Transactions resulting from Unauthorized
Use.
3. RATIFICATION
All of the terms of the Agreement not expressly modified herein shall continue in full force
and effect and are hereby ratified by thc parties hereto.
415791 -Addendum to BA Corporate Card Agreements Page 3 of 4
IN WITNESS WHEREOF, the parties have executed this ADDENDUM as of the date shown
above.
CITY OF FAYETTEVILLE
By:
Print name: Dan Coody
Title: Mayor
BANK OF AMERICA, N.A. (USA)
Print name: P4 "L ✓ • .O /NQER
Title: 5 V`
415791 -Addendum to BA Corporate Card Agrccments Page 4 of 4
SCHEDULE A
TO
BANK OF AMERICA PURCHASING CARD AGREEMENT
GENERAL PRODUCT FEE SCHEDULE
Payment Method and applicable fee:
No Fcc
Annual Card Fec (Per Card):
SO
Late Fee: Assessed if full payment is not received by Payment Due Date.
Central Bill Accounts: Minimum 5250.00, Maximum $3,500.00
2.5% of the balance due
Not Applicable
Individual Bill Accounts:
Periodic Finance Charge:
Prime + 5%
Cash Advance Fcc: Minimum 55.00, no maximum
2.5% of Transaction Amount
Overlimit Fee:
Central Bill Accounts: Assessed when Aggregate Charge Limit is exceeded
5250 per occurrence
Not Applicable
Individual Bill Accounts: Assessed when any Card Limit is exceeded.
Returned Payment Fcc:
529.00 per occurrence
Copy Fec:
53.00 per copy
Logo Fcc:
Waived
Unique Card Design Fcc:
As quoted
SELECTION OF SETTLEMENT PERIOD
Indicate the Settlement Period or number of days after the statement closing date within
which payment is due.
days
WAIVER PROGRAM: Depending on whether the Account is a Visa account or a MasterCard account, the Account will be subject to either the Visa
Liability Waiver Program or the MasterCoverage® Liability Protection Program. This coverage is designed to protect financial institutions and
companies from employee misuse of thc Account resulting in unauthorized Transactions. Bank of America will waive Company's liability for waivablc
charges up to thc limit of coverage as provided in the liability waiver program ("Waiver Program") upon notice by the Waiver Program underwriters that
the Transaction at issue qualifies as a watvabte charge. This waiver will be according to the tem and subject to the exclusions of the Waiver Program as
established from time to time by the Waiver Program Underwriters, including without limitation, thc condition that Company meets all of its obligations
under the Waiver Program which may change from time to time. Current terms of the Waiver Program as set forth in thc brochure, which Bank of
America will provide to Company arc incorporated in this Agreement by reference. The Waiver Program may be terminated by Bank of America or thc
Waiver Program underwriters, effective immediately upon notice to Company.
UP TO S500,000 TRAVEL ACCIDENT INSURANCE (NOT AVAILABI,E FOR CORPORATE FLEET CARDS): This coverage will offer up to
5500,000 in automatic common tamer travel, accidental death and dismemberment insurance when employees charge the entire cost of thc passenger
fare for land, sca, or air public transportation on their Cards. A disclosure, which outlines the program details will be provided to Company and
Cardholders.
5<Mhk A Rcy, 2 02393675
SCHEDULE B
TO
I3ANK OF AMERICA PURCHASING CARD AGREEMENT
ELECTRONIC PRODUCT FEE SCHEDULE
Desktop Software.
InfoSpan Not Selected
SmartData Not Selected
Mailboxes Not Selected
Desktop Upgrades:
InfoSpan $0.00
SmartData $0.10
Internet Software.
*Commercial EAGLS Waived
••EAGLS EXPRES (EAGLS Dependent)
EXPRES Uscr Fee - First Year Only:
Not Selected
Minimum 54,500, Maximum 5330,000.00
EXPRES Annual Uscr Fee — All Subsequent Years:
Not Selected
Minimum 5750, Maximum $40,000.00
Mailbox (EAGLS) I Mailbox - S25 per month
Standard Electronic File Delivery Option•
EDI 811 Not Selected
Statement Billing File Not Scicctcd
File Express (MasterCard Only)
Standard Reports:
All Electronic Products (Desktop & Internet) SO
Custom Reports:
Development $150 per hour
Maintenance $150 per hour
Custom Interface:
Interface warranty period of I year
Development $150 per hour
Maintenance 5150 per hour
Software Training:
1 Phone Training Session per License 50
Training sessions on-site SI,500 per session
*For Company and Participants only one license fee of 55500 applies. See Training section for fees on additional on-site
training.
•• Bank will not provide bar code scanners for Expres clients, but will provide specifications to allow customers to purchase
their own. Specifications are on CCS intranet web -site under the hardware/software requirement section.
Scbetk D Rn cd2 0. 3936)6
1
NAME OF FILE: Resolution No. 133-03 w/agreement
CROSS REFERENCE:
Item #
Date
Document
1
08/15/03
Staff Review Form w/attachments
draft resolution
memo to City Council
PUR -15 w/attachments
memo to Mayor/City Council
memo to Peggy Vice
proposed agreement
letter to Bank of America
2
09/02/03
memo to Peggy Vice
NOTES:
STAFF IIEW FORM - FINANCIAL OBLIGATI.
X AGENDA REQUEST
CONTRACT REVIEW
GRANT REVIEW
For the Fayetteville City Council Meeting of: - September 2, 2003
q//°3
/33-03
FROM:
Peggy Vice
Name
Purchasing Division Internal Services
Division Department
ACTION REQUIRED: Approval of procurement card policy and contract with Bank of America
to provide procurement cards and associated software.
COST TO CITY:
$7,000.00 $ 12,908.00 Materials & Supplies
Cost of this request
Category/Project Budget Program Category / Project Name
1010.1610.5209.00 $ 4,137.00 Purchasing
Account Number
Project Number
Funds Used to Date Program / Project Category Name
8,771.00 General
Remaining Balance Fund Name
BUDGET REVIEW:
X Budgeted Item
Budget Manager Date
Budget Adjustment Attached
CONTRACT/GRANT/LEASE REVIEW:
i
•
•
.n`
A ountin
•
Manager
if cc.
ney
Date Internal Au for Date
?Ai/J7
Date
PLump
Purchasing Manager Date
STAFF RECOMMENDATION:
Division Head
Department Director
Date
Date
)g--11.423
Date
nistrative Officer Date
243
Mayor Date
Received in Mayor's Office
Cross Reference:
Previous Ord/Res#:
Orig. Contract Date:
Orig. Contract Number.
New Item:
D 3
Date
Yes No
illtaff Review Form - Page 2
•
Description Bank of America- Procurement Card Meeting Date September 2, 2003
Comments:
Budget Manager
Accounting Manager
City Attorney
See n.-Cn--> ,[ 7-11-03 al
R -i& - 03 i4-+ p..5L_, ..�.
Purchasing Manager
4 2-
ADA Coordinator
Internal Auditor
Grants Coordinator
Reference Comments:
Api.aF.J itacs Vim+ n.Lg sd 4 K t-ertkt
0.46d.F 444. o«: coNnaslece... akeci_alt...cacros,
t.c.J...r.L'7 ci.tt'st44& Gad) K✓,tc.1 4t natio
rn..le.,.u,L7 /,F,ugaage eau 714......4.1 14 6nwlcec
A....w..ia, lea se. S -9w.. c .
RESOLUTION NO.
A RESOLUTION TO ACCEPT A CONTRACT WITH
BANK OF AMERICA CORPORATE PURCHASING
CARD AGREEMENT
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section 1. That the City Council of the City of Fayetteville, Arkansas
hereby approves and agrees to the Bank of America Corporate Purchasing Card
Agreement (attached as Exhibit A) and further authorizes the Mayor to execute
said contract.
PASSED and APPROVED this the 16th day of September; 2003.
APPROVED:
By:
ATTEST:
By:
Sondra Smith, City Clerk
DAN Y, Mayor
FAYETTEV&LE
THE CT' OF FAVETTEVILLE. ARKANSAS
DEPARTMENTAL CORRESPONDENCE
•
TO:
THROUGH:
FROM:
DATE:
SUBJECT:
Background
Fayetteville City Council
Dan Coody, Mayor
Hugh Earnest, Chief Administrative Officer
Steve Davis, Finance & Internal Services Director,
Peggy Vice, Purchasing Manger
August 15, 2003
Bank of America Corporate Procurement Card
iVies
Currently, City Staff makes purchases throughout the City by purchase orders, petty cash and
check requests. The current process is time consuming and staff time intensive. More and more
vendors no longer accept purchase orders because they are either in the process or have
eliminated their accounts receivables and/or utilize a third party finance company to issue store
specific credit cards This method is utilized as little as possible by the City because there are no
controls or tracking systems to keep up with who has charged what item and there are no limits
set that could prevent abuse.
Discussion
Staff is presenting this agenda item for City Council approval to enter into an agreement with
Bank of America to implement a procurement card (P -Card) program. This P -Card program
promises to reduce staff time currently devoted to completing the forms, obtaining petty cash,
etc. in making purchases. Staff will meet with each department head and set their department
dollar limits based on their purchasing history. Each department head will determine who in
their department will be issued a card. The person issued a card will be put through a training
period before they will be issued a card. A financial person in each department will oversee that
department's activity and final approval of payment will be approved by the department head.
Staff has put together the Procurement Card Policy so it is very clear in the proper authorized
use. Abuse of the procurement card is a terminating offense. Staff wants it to be very clear with
no gray areas and wants Council's full support. Attached is the new policy and standard
operating procedure regarding authorized use of procurement cards.
This is a new and exciting process for the City. We have never operated with a City procurement
card before. Staff met with the Business Manager of the University of Arkansas a few months
ago when investigating the potential use of procurement cards and she couldn't say enough good
things about the change to procurement cards. They hope to put everything on procurement cards
in the future including utilities and large ticket items.
Staff also discussed the negatives and positives with the City of Ames, Iowa, who is now on the
EGLES Bank of America procurement card program that we are proposing. Ames, Iowa is about
the same size town as Fayetteville and is also a university town. They have been on the EGLES
system for about I 'h years. They are very happy with the service of Bank of America and their
EGLES system. They have realized a large reduction in data entry, paper flow and staff time.
They require their people to go through training before issuance of a procurement card and
monitor their usage. They don't have any negatives. They wish they had went to the procurement
card sooner. Every aspect of the change has been positive.
Staff Recommendation:
Staff recommends approval of a contract with Bank of America and full support of The
Procurement Card Policy by City Council.
This is an effort by Staff to accomplish "Guiding Principle #4":
• By selecting the most advantageous way of purchasing materials and supplies
• By utilizing the best use of staff time.
• By providing top-quality, responsive service through new technology.
• By providing the fastest and best method of payment to the City's vendors.
• •
CITY OF FAYETTEVILLE, ARKANSAS
POLICY AND PROCEDURE
SUBJECT: Procurement Cards
NUMBER: PUR-15
EFFECTIVE DATE: August 15, 2003
REVISIONS: None
PUR-15.0 PURPOSE:
The purpose of this document is to establish responsibilities and to implement procedures
to be followed in the distribution and use of procurement cards
PUR-15.1 GENERAL RESPONSIBILITIES:
The authority and responsibility for overseeing the procurement card program is
delegated to the Program Administrator and the Payment Administrator or their designee
in their absence.
PUR-15.2 Procurement Card Use and Limits
Procurement cards arc designed to decrease or eliminate purchase orders, petty cash
purchases, invoices and checks/warrants.
Your monthly and single transaction limits are at the discretion of your department. Your
supervisor will inform you of your spending limits at the time you receive your card.
Single purchases over S2,500 must be made using a Purchase Order. Breaking a
transaction into smaller amounts in order to use the procurement card is considered a
misuse of the card.
PUR-15.3 QUOTE LIMITS
Quotes for items over S500 are required the same as for purchase orders. Documentation will be
notated in a space provided in the EAGLS Software .
PUR-15.4 USING YOUR PROCUREMENT CARD
It is important that you follow City policies concerning purchasing limits and requisition protocols.
We encourage you to use the card INSTEAD of POs whenever possible.
You must collect an itemized receipt or invoice from the vendor/supplier every time you use the
procurement card. This receipt or invoice must contain the following information:
• Vendor name and address
• Date of purchase
• Description of each item purchased and the quantity purchased
• Price per item/Extended price per item
• Shipping/handling charges (where applicable)
• Total amount of the transaction
C
Only you are authorized to
use
the procurement
card. Because
you are responsible
for protecting your
account number, you must
not
lend the card out
to others.
Procurement cards are for City of Fayetteville business only. Prohibited uses include, but are not
limited to:
• Personal use
• Alcohol
• Cash advances/money orders
• Cash refunds
• Securities and savings bonds
♦ Services (professional, expert and technical)
♦ Payment of taxes/liens
♦ Medical and workers compensation -related expenses
♦ Insurance payments
♦ License, application and evidence refunds
♦ 1099 reportable services
♦ Breaking a purchase over $2500 into smaller amounts in order to use the procurement
card
Goods purchased through a procurement card may be returned for CREDIT ONLY. Cardholders may
not accept a cash refund. You must keep the credit receipt and original receipt for the log.
PUR-15.5 TRAVEL EXPENSES
Using procurement cards for paying travel expenses is allowable on a limited basis. All expenses must
be pre -approved and must be in accordance with the rules and definitions specified in the most recent
Rules for Travel.
♦ The following expenses may be paid by procurement card if pre -approved on a Travel
Authorization and Advance form:
1. Hotel / Motel costs as specified in the Travel Policy, excluding add-ons such as laundering,
in -room movies, snack bar, etc.
2. Rental car and associated expense such as insurance, fuel, oil, etc.
3. Airline Tickets
3. Registration Fees
To travel using the Procurement Card:
♦ You must use the Travel Authorization and Advance form, and must be pre -approved for
the projected travel and related expenses.
♦ On the form, you must indicate which expenses will be charged to the procurement card
by placing the dollar figure and the notation "p -card expenditure" in the "S" column,
♦ You will not receive an advance of the dollar amount projected for procurement card
use; you will be authorized to charge these expenses to your procurement card.
♦ You should forward the completed Travel Authorization and Advance form to the
appropriate accounting personnel (for travel AND for procurement card expenses).
•Copies will be held for review and reconciliation after the traveler returns.
♦ You must keep receipts for ALL procurement card expenses.
♦ After you return , you must complete a Travel Expense statement and submit it for
approval.
• Attach all receipts and forward it to the appropriate accounting personnel for travel AND
for procurement card expenses *If your travel and procurement card accounting
personnel are different, BOTH must receive full sets of receipts and expense forms.
Actual expenditures should not deviate significantly from the pre -authorized amount Use of room
service for meals is allowed only if such use falls within the authorized dollar amounts for meals
and is consistent with the IRS index for meal allowances.
♦ Use of the procurement card to pay for the following travel -related items is strictly
prohibited:
1. Snack foods - travel rules prohibit the City from paying for between -meal snacks
2. Alcoholic beverages
3. In -room movies
4. Cash advances / money orders
5. Cash refunds
All Travel Expense Statements and receipts will be carefully reviewed by accounting personnel to
insure that all purchases are appropriate and in accordance with City procurement card policy and
travel guidelines. All expenditures, whether authorized or not, whether appropriate or not, shall be
reconciled and paid to the Bank ofAmerica following the procedures described in these guidelines.
Any unauthorized or inappropriate expenditures (defined as any use of the card not specifically
approved by your supervisor), shall be collected from the traveler by check and used to reimburse,
via journal entry, the expenditure code from which payment to the procurement card provider was
made.
PUR-I 5.6 ACCOUNT REVIEW AND RECONCILIATION
♦ You must keep all receipts, invoices, and packing slips.
♦ Record daily on a log form all purchases made with the card (use a new log for each
weeks' purchases - SEE SAMPLE).
♦ You will log onto the internet and print a daily activity transaction report. It will be for
the transactions for the proceeding day. Review your reports by comparing the backup
documents (receipts, invoices, or packing slips) to the transactions listed on your billing
statements, and verify that any past exceptions have been resolved.
♦ A program code and account number must be assigned to each purchase. You may assign
these numbers if you have the information available, or you may forward the log to your
central card administrator.
♦ Sign the log to acknowledge that you have checked your statement and that all charges
are accurate.
♦ Forward the signed log to your supervisor for final approval.
♦ The log must be turned in to the Payment Administrator in Accounting by Wednesday of
the following week.
PUR-15.7 DISPUTED CHARGES
Contact the vendor to discuss disputed charges.
If you cannot reach an agreement with the vendor, or if they need more time to
investigate disputed charges, you should contact Bank of America's 24 -hour customer
service center at 1-800- -
If you are unable to resolve the dispute with the vendor, you must write to the Bank of
America within 30 days of the date the charge first appeared on your monthly
statement.
'Dispute letters must include your name, account number, work phone number, and address. You may
also include your e-mail address. Send a copy of the letter to the Procurement Card Administrator.
PUR-15.8 LOST OR STOLEN CARDS
You are responsible for maintaining the security of your procurement card. The number should not be
posted in any location where other people might gain access to it. If another person gains access to the
card, please notify the Purchasing Division immediately for a replacement.
You must notify the Bank of America and the Purchasing Division IMMEDIATELY in case of lost or
stolen cards. The number for reporting lost or stolen cards is available 24 hours: 1-800-305-7735.
'Note the name of the Bank representative who took the call. Your Division is financially liable
for all unauthorized uses of the card until the Bank is notified.
You should immediately notify your supervisor.
PUR-15.9 TRANSFERRING ACCOUNTS
Procurement cards are issued to an individual, not to the position. Accounts may not be transferred
from one cardholder to another. If you leave your division, you must close your account and surrender
your card to your supervisor.
You may transfer to another division without closing your account, provided your new
supervisor/department head approves your use of the card. If you transfer to a different division, your
new supervisor or department head should send a "Request for Account Transfer" form to the
Procurement Card Administrator in the Purchasing Division, Room 306, 575-8289.
PUR-15.10 REPLACEMENT CARDS
To replace old, damaged,
or worn-out cards,
send a memo to the Procurement Card Administrator
with the defective card.
You will receive a
replacement
card within two weeks.
PUR-15.11 CLOSING YOUR ACCOUNT
You must turn your card over to your supervisor immediately upon your transfer to another division or
upon termination of your City employment (whether termination is as a result of retirement, voluntary
separation, resignation, or dismissal).
Reconcile your latest statement and sign the log, then:
Cut the card in half and submit it with reports, log, and receipts/invoices to your
supervisor.
PUR-15.12 MISUSE OF PROCUREMENT CARDS
Personal use of procurement cards is flatly prohibited. Employees who use the procurement card for
personal reasons can expect the City to report such use to law enforcement authorities and to take
appropriate disciplinary action, up to and including termination from employment.
Procurement cards are for City of Fayetteville business only. They are intended to decrease or
eliminate the use of Purchase Orders, petty cash, invoices, checks, and other non -contract services.
4
0
Unauthorized use of the procurement card may be considered a misuse of City funds, and may result
in any or all of the following:
♦ Immediate forfeiture of the card
♦ Disciplinary action, up to and including termination from employment
♦ Legal action against the cardholder
You must follow your Division's policies and guidelines regarding spending limits, number of times
you're allowed to use the card, and requisition protocols. If you have any questions about appropriate
use of the card, please contact your supervisor before acting.
PUR-15.13 BUDGET AVAILABILITY
Budget availability must be checked before each procurement card purchase. It is important that all
budget policies are adhered to. Consistent over budgets may result in forfeiture and suspension of
your procurement card privileges.
APPROVAL:
l0
Date
PUR-15.14 Procurement Card Agreement Form
Date:
As a holder of this Procurement Card:
♦ I confirm that I have read and understand the terms and conditions of its use:
✓ I MAY NOT use the procurement card for the restricted commodities set forth in
the Manual.
✓ I must follow any additional restrictions as described by my
Division/Department. I have been informed of and understand my
Division/Department's restrictions (these restrictions may include spending
limits and requisition protocols).
✓ I understand that commodities, where City of Fayetteville has Annual Supply
Contracts in place, should be purchased from the City of Fayetteville's contract
suppliers.
✓ I understand that misuse of this card may result in disciplinary action, up to and
including TERMINATION of employment.
✓ I understand the City of Fayetteville Purchasing Division, Internal Audit and/or
my Division/Department will audit the use of this procurement card.
♦ I understand my Division/Department is liable to Bank of America for all charges
made by me.
♦ I agree to allow the City of Fayetteville to collect any amounts owed by me even if I
am no longer employed by the City of Fayetteville.
♦ I understand the City of Fayetteville may terminate my rights to use this card at any
time for any reason.
♦ I agree to return the card to my Division/Department Supervisor immediately upon
request or upon termination of employment.
♦ I acknowledge receipt of the Procurement Card procedures manual, and agree to
comply with the terms and conditions in this and any subsequent revisions of this
manual.
♦ I agree to accept responsibility for the protection and proper use of this card
according to the terms set forth in the manual.
♦ I will IMMEDIATELY report theft/loss of card and/or difficulties with the card to my
Supervisor and to the Procurement Card Administrator, in the Purchasing Division .
Date:
Cardholder Signature:
Cardholder Name (Please
Cardholder Job Title:
Division/Department:
Work Phone:
Procurement Card Log
Purchasing Division
RM 306
SAMPLE ACTIVITY LOG
Activity Period:
Posting Date Tran Date Vendor Name Purchase Amount Description of Material Fund Progr.
I hereby certify the goods and/or I have reviewed this
services have been delivered or performed.
The attached receipts have been reconciled amount of $
to the attached Bank of America statement.
Cardholder signature Date
Phone Number
Cardholder's Supervisor Signature
Title
Phone
7
FAYETTEVI tLE
THE CITY OF FAYETTEVILLE. ARKANSAS
KIT WILLIAMS, CITY ATTORNEY
DAVID WIIITAKER, ASST, CITY ATTORNEY
DEPARTMENTAL CORRESPONDENCE
TO: Dan Coody, Mayor
City Council Q
FROM: Kit Williams, City Attorney
DATE: August 18, 2003
LEGAL DEPARTMENT
RE: Bank of America Corporate Purchasing Card Agreement
Even though this is probably a take -it or leave -it contract, I still
believe we should strike through paragraph 3.D. to remove any
possibility that "convenience checks" could be made available to
employees. I do not think Bank of America would be overly concerned
if we reject the possibility of this feature.
As I stated in my July 17th memo (attached), I dislike their
standard arbitration and indemnity clauses (as well as the governing
law being Arizona rather than Arkansas), but I doubt if we can get any
agreement to change those provisions. Thus, the issue is whether the
City would be better off with the bank cards with those terms or
without the bank cards. That is not a legal issue.
•
THE CITY OF FAYFTT[VRIE ARKANSAS
KIT WILLIAMS, CITY ATTORNEY
DAVID WHITAKER, ASST. CrrY At
LEGAL DEPARTMENT
DEPARTMENTAL CORRESPONDENCE --
TO: Peggy Vice, Purchasing
FROM: Kit Williams, City Attorney ; :
DATE: July 17, 2003
RE: Bank of America Corporate Purchasing Card Agreement
Below are items of concern I found in the proposed agreement:
(l) Paragraph 3.D. No "Convenience Checks" should be allowed.
(2) 4.A. I do not like the Bank having sole discretion to raise the charge
limit on a card.
(3) 5.D. should be deleted.
(4) 23 Governing law. 1 am not licensed to practice law in Arizona, nor
do I know the possible legal pitfalls which might be the result of Arizona law
controlling this contract. If a dispute arises, our trial would have to be in Arizona.
(5) 24. Arbitration. Either party can demand binding arbitration.
This appears to be a standard, take it or leave it contract prepared by Bank
of America. The indemnity, Arizona jurisdiction, arbitration and other noted
paragraphs would normally make this unacceptable. However, if the
Administration wants to obtain these credit cards, it will probably have to agree to
all these terms. In most cases, the City will probably not be adversely affected by
these terms, but I wanted to call them to your attention in the front end.
BANK OF AM CA CORPORATE PURCHASING CARD AGREEMENT
This Bank of America Corporate Purchasing Card Agreement (the "Agreement") is made by and between Bank of America, N.A. (USA),
("Bank of America"), a national banking association, and City of Fayetteville ("Company") and shall be effective as of the Effective Date set forth below.
Rccitals
A. Bank of America is a member of MasterCardInternational Incorporated ("MasterCard") and Visa' U.S.A. Inc. ("Visa") with full power
and authority to issue cards for business and commercial use;
B. Bank of America issues and services corporate purchasing cards for business and commercial use; and
C. Company desires to obtain and use, and Bank of America desires to issue to Company, one or more corporate purchasing card accounts
which will be subject to the terra and conditions in this Agreement.
NOW, THEREFORE, for valuable consideration, the parties agree as follows.
1. DEFINITIONS.
A. "Account" means each MasterCard or Visa Corporate Purchasing Card account, including a Cardless Account, which Bank of America (i)
issues pursuant to this Agreement or (ii) issued (and still outstanding as of the Effective Date of this Agreement) pursuant to a previous agreement no
longer in effect. Each reference in this Agreement to "the Account" will mean Company's Account, a Participant's Account, a Cardholder's Account, or
any combination of them, as applicable.
B. "Billing Statement" means the official invoice provided to Company, Participant and/or Cardholder which identifies each Transaction posted
during the billing cycle, the date of each Transaction and the applicable fees and charges. Unless otherwise determined by Bank of America, the official
invoice is in paper, not electronic, medium.
C. "Business Use" means use for business -related purposes.
D. "Card" means each plastic charge card which Bank of America issues or has issued for the Account which is not a Cardless Account.
E. "Card Administrator" means an individual or individuals authorized by Company or a Participant, as applicable, to request Bank of America to
add or delete Cards or Convenience Checks and to communicate with Bank of America and take other action needed to maintain the Account.
F. "Cardholder" means an employee or agent of Company or of a Participant who Company or a Participant designates in writing and who Bank
of America approves to receive an Account or a Device, including a Cardless Account. If a Cardholder or a Card Administrator makes a Device
available for use by another party, that person will be considered a Cardholder.
G. "Cardless Account," also called a "Control Account," means an Account for which Bank of America assigns only an Account number, but
provides no Card or Convenience Checks.
H. "Cash Advance" means use of the Account to obtain cash from a participating financial institution or merchant or from an ATM, to write
Convenience Checks, or to obtain items readily convertible into cash including, without limitation, money orders, travelers checks, foreign currency,
lottery tickets, casino chips and racetrack wagers.
1. "Convenience Check" means each check which Bank of America at its discretion provides to Company or a Participant to use the Account.
J. "Device" means a device such as a Card, Account number or, where applicable, a Convenience Check which Bank of America provides under
this Agreement to use to make Transactions or other charges on the Account.
K. "Guarantor" means a person or entity, other than Company or a Participant, that agrees to assume responsibility for the obligations of this
Agreement, including payment of any amounts owed.
L. "Participant" means a subsidiary, affiliate or division of Company which Company designates in writing on a Participant Account Form and
which Bank of America approves, for Bank of America to issue an Account with its own Account number. A Participant Account Form, upon
completion by Company and approval by Bank of America, will be made a part of this Agreement.
M. "Payment Due Date" means the payment due date shown on the Account Billing Statement which date shall be the last day of the Settlement
Period.
N. "Settlement Period" means the number of days after the statement closing date within which payment is due, as designated in Schedule A
hereto.
O. "Transaction" means a purchase or reservation of goods or services or a Cash Advance made or facilitated by use of a Device or the Account.
P. "Unauthorized Use" means use of the Account or a Device by a person (i) who is not a Cardholder; (ii) who does not have actual, implied or
apparent authority to use the Account or Device; and (iii) whose use does not result in a direct or indirect benefit for Company, a Participant or
Cardholder.
2. EXCLUSIVITY.
Company grants Bank of America the exclusive right to issue and provide to Company, each Participant and each Cardholder credit cards for use in
connection with the procurement of goods and services incidental to Company's or Participant's business or business activities, including travel and
entertainment expenses. During the term of this Agreement, Company will use no other card issuer for this purpose.
3. USE OF ACCOUNT AND DEVICES.
A. The Account and Devices will be used only for Transactions in connection with the procurement of goods and services incidental to
Company's or Participant's business or business activities, including travel and entertainment expenses.
B. The Account will be used for Business Use only, and Company will so advise and require each Cardholder and each Participant accordingly.
Company will pay for Transactions and fees which Bank of America applies to the Account or Devices.
C. Company and each Participant will follow, and will take all steps necessary or prudent to require each Cardholder to follow, the following
Cpl_C. ...e_MeliCsd_AFn _22144 Fd Re" 102
procedures:
A Cardholder using a Card for a Transaction may sign a sales draft or Cash Advance draft which the merchant's financial institution
processes. However, failure to sign a sales draft or receive a sales receipt will not relieve Company of its obligations under this
Agreement. Company should retain or should direct each Cardholder to retain each sales draft or Cash Advance draft as a record of the
Transaction.
2. A Card will not be used before the Card's valid date or after the Card's expiration date.
3. Company and each Cardholder will check to see that the information embossed on a new Card or printed on Convenience Checks and sent
to Company or Cardholder is correct. If there is an error, Company will notify Bank of America immediately.
D. If Bank of America provides Convenience Checks, they may not be used to make payment on the Account or any other loan or line of credit.
Convenience Checks will not be returned to Company or any Participant or Cardholder. Bank of America may pay a Convenience Check and post its
amount to the Account regardless of any restriction on payment, including, without limitation, a Convenience Check which is post-dated, states that it is
void after a certain date or states a maximum or minimum amount for which it may be written. To stop payment on a Convenience Check, Company or
Cardholder must call Bank of America at the Customer Service number shown on the Account Billing Statement with all the following information: the
exact dollar amount of the Convenience Check; the Convenience Check number; the Account number; the name of the party to whom the Convenience
Check was written and the name of the person who signed the Convenience Check. Bank of America will stop payment on the Convenience Check if
Bank of America receives the stop payment request by the business day before the day Bank of America pays the Convenience Check. The date Bank of
America pays the Convenience Check may be before the date it posts to the Account. The stop payment order will remain effective for six (6) months.
E. Bank of America may, at the request of Company or a Participant, establish a Cardless Account.
F. If Company or Participant desires to terminate the Account or Card use (including, where applicable, use of Convenience Checks) by a
Cardholder, Company or Participant, as applicable, will notify Bank of America and will destroy the Devices issued or provided to that Cardholder.
Company may exclude a Participant from the Account by giving Bank of America written notice, and Bank of America will have a reasonable period of
time to act on any such notice. If this Agreement terminates, Company will be responsible for promptly destroying all Devices for the Account.
G. A Transaction may require the merchant, supplier or financial institution to seek prior authorization from Bank of America before completing
the Transaction. If Company advises Bank of America in writing of its desire to restrict a certain type of Transaction identified by a certain merchant
category ("Merchant Category Code"), Bank of America will take reasonable steps to withhold a requested authorization of that Transaction type,
provided it is identified by the appropriate Merchant Category Code. However, Bank of America will not be liable to Company if merchants, suppliers
or financial institutions nonetheless accept a Card or the Account for that Transaction type.
H. Bank of America is not liable if a merchant or supplier does not honor a Card or if authorization is not given.
I. If Participant is or no longer will be a majority -controlled subsidiary, affiliate or division of Company, Company must notify Bank of America
immediately; Bank of America will have the right to terminate any Account or Device which that Participant or Participant's Cardholders use.
J. Bank of America may, at the request of Company or a Participant, establish an Account with a designation which is not an actual individual,
including, without limitation, a vehicle identification number, license number, department name or "Authorized Representative".
K. Bank of America may deny authorization for any Transaction if Bank of America suspects fraudulent activity or Unauthorized Use, or for other
reasons. Bank of America is not liable for any failure to authorize a Transaction.
4. CHARGE LIMIT.
A. There will be one total charge limit for the Company Account and Participant Account ("Aggregate Charge Limit"). Each Card will have its
own charge limit ("Card Limit"). In its sole discretion, and for purposes of limiting potential losses or for administering time -sensitive requests, Bank of
America may increase or decrease the Aggregate Charge Limit or any Card Limit.
B. Company, a Participant and Cardholders will not incur Transactions which would cause the sum of Company's and Participant's unpaid balance
to exceed the Aggregate Charge Limit or to cause a Card Limit to be exceeded. Any amount exceeding the Aggregate Charge Limit or Card Limit shall
be immediately due and payable.
C. If the Aggregate Charge Limit or a Card Limit is exceeded, or if an Account payment is late, Bank of America shall no longer be obligated to
allow any further Transactions.
6. COMPANY LIABILITY; ACCEPTANCE OF AGREEMENT,
A. By activating, signing or using any Device or Account, Company agrees to be bound by this Agreement regardless whether Company signs this
Agreement. Company will pay Bank of America for all Transactions, whether Company or Cardholder billed, regardless of the purpose for which the
Transaction is made, and for applicable fees and charges described in Schedules A and B.
B. Company's responsibility for Card and Account usage will continue until: (I) Receipt by Bank of America of Company's or a Participant's
written notice to close the Card or the Account; (2) actual closure of the Account by Bank of America; and (3) payment to Bank of America of all
amounts due under this Agreement.
C. Company does hereby grant to Bank of America a security interest and contractual right of offset in and to, all deposit accounts now or
subsequently maintained by the Company with Bank of America or any of its affiliates and subsidiaries. The Company, by its execution of this
Agreement or use of a Device, authorizes Bank of America to enter into a master control agreement with its affiliates and subsidiaries authorizing, upon
the occurrence and continuance of any default under this Agreement, the disposition of funds in any such deposit account to satisfy all liabilities incurred
hereunder, without the further consent of the Company. The Company's execution of this Agreement or use of a Device shall constitute an authenticated
record for the purposes of establishing control of such deposit accounts under the Uniform Commercial Code.
D. Company agrees to indemnify Bank of America and hold Bank of America harmless from, all claims, actions, losses, costs and expenses
(including attorneys' fees and allocated costs for in-house legal services) incurred by Bank of America arising from any Unauthorized Use of a Cardless
Account or Account established in the name of "Authorized Representative," a department name or other such designation that is not an actual
individual. This Section 5.D. takes precedence over any restriction on Company's liability contained in this Agreement.
6. BILLING STATEMENTS.
CpI C.,.. ne_Imsim_Cm1_Aymrm rl IM4 ris M ].V2
A. Bank of America will provide a Bill�tatement to the Card Administrator or to such O er Company employee or agent as Company
designates in writing.
B. Bank of America may provide Company and the Participant, as applicable, a monthly report listing each Cardholder who has an Account
balance unpaid since the Payment Due Date on the most recent Billing Statement issued to the Cardholder and therefore is subject to cancellation of
Account charge privileges ("Delinquency Report"). Providing the Delinquency Report shall not constitute a waiver by Bank of America of any rights
and remedies it may have under this Agreement.
7. PAYMENTS.
A. Company will pay Bank of America the total amount of the new balance shown as due on each Billing Statement on or before the Payment Due
Date shown on that Billing Statement. If Company does not make payment in full by the Payment Due Date, Bank of America, at its option, may assess
a late fee and finance charge in accordance with this Agreement. Assessment of a late fee or finance charge shall not be deemed to extend the time for
any payment hereunder or to constitute a "grace period" in which to cure any default.
B. Company or a Participant may arrange for direct Account payment to Bank of America from Cardholders. No such arrangement will amend or
modify Company's liabilities, including responsibility for payment, in this Agreement.
C. There is no right to defer any payment due on the Account.
D. Company shall make payment electronically via the Automated Clearing House (ACH), and Bank of America may initiate ACH debits to any
deposit account specified by Company at any financial institution.
E. All remittances must include the complete Account number in order to be processed. Failure to include the complete Account number shall
constitute a failure to make the payment.
a. CARD ADMINISTRATOR. Company will identify one or more Card Administrator(s) who will be Bank of America's primary contact for such
things as: designation of Cardholders, designation of Cardholders to receive any Devices, and correspondence regarding the Account or this Agreement,
except as provided elsewhere in this Agreement. Company may add, change or eliminate a Card Administrator by giving Bank of America written
notice.
9. LOST OR STOLEN CARDS.
A. Each Transaction resulting from use of a Device will be assumed to be an authorized Transaction unless Bank of America has received prior
written notice from Company or a Participant, as applicable, that the Cardholder is no longer authorized to use the Account.
B. If a Device such as a Card or Convenience Check is lost or stolen, or if there is possible Unauthorized Use, Company must require each
Participant and Cardholder to notify Bank of America as soon as practically possible within the first 24 hours following discovery of the loss or theft or
possible Unauthorized Use by phoning Bank of America at the phone number provided for such notice on the Billing Statement, with written
confirmation as requested in connection with Bank of America's investigation. If(i) notice as provided in this Section is given within the first 24 hours;
and (ii) Company assists Bank of America in investigating facts and circumstances relating to the loss or theft or possible Unauthorized Use of any
Device, including without limitation, obtaining an affidavit or similar written, signed statement from the Cardholder, then Company or Participant, as
applicable, will not be liable for Transactions resulting from Unauthorized Use .
10. LICENSE TO USE COMPANY'S MARKS. If requested by Company, Bank of America may place Company's trademark, tradename, service
mark and/or designs ("Company's Marks') on the Card and collateral materials. Company shall provide the graphics to Bank of America in sufficient
time to allow for review and approval by Bank of America and, if necessary, the respective card association. Company grants to Bank of America a non-
exclusive license to use, during the term of this Agreement, Company's Marks on the Cards and on other materials related to the Accounts. Company
agrees to defend, indemnify and hold harmless Bank of America, its affiliates and their respective directors, officers, agents and employees for any and
all losses, costs, liabilities or expenses (including, without limitation, attorneysand expert witnesses' fees) incurred or arising from any claim that the use
of any of Company's Marks infringes the intellectual property rights of any third party.
11. SOFTWARE.
A. The use of Visa InfoSpan software, MasterCard Smart Data software or any other third party software program and related documentation, if
any, provided in connection with this Agreement shall be governed by the terms of the end -user agreement accompanying the software.
B. Upon payment of the requisite license and related fees, Bank of America grants Company a non-exclusive, non -transferable, enterprise license
to use for internal business purposes the EAGLS® software ("Software") and documentation as amended from time to time by Bank of America
("Documentation") which is provided by Bank of America to Company. Title, ownership rights and intellectual property rights in the Software and
Documentation shall remain in Bank of America or its parent, Bank of America Corporation. Company acknowledges such ownership and intellectual
property rights and will not take any action to jeopardize, limit or interfere in any manner with Bank of America's or its parent company's rights with
respect to the Software or Documentation. Company agrees to use the Software and Documentation as specified by Bank of America.
12, FEES. Company agrees to pay the fees and charges set forth in Schedule A and Schedule B hereto which are incorporated herein by reference.
13. FINANCE CHARGE. In the event Company fails to pay the total amount shown as due on a Billing Statement by the Payment Due Date shown on
that Billing Statement, the amount unpaid shall be subject to a finance charge starting no sooner than the first day of the next billing cycle. To calculate
the finance charges for a billing cycle, the daily periodic rate is multiplied by the average daily balance, and that product is multiplied by the number of
days in the billing cycle. The daily periodic rate is the annual percentage rate divided by 365. The annual percentage rate is the prime rate published in
the Money Rates section of The Wall Street Journal in effect on the first day of each calendar month (the "Prime Rate") plus the number of percentage
points stated in Schedule A. The average daily balance is the sum of the daily past due balances (including, for each day, finance charges from previous
day) less payments credited to the past due balance, divided by the number of days in the billing cycle.
14. AMENDMENT OF THIS AGREEMENT. Bank may, upon written notice to Company, amend this Agreement by changing, adding or deleting
any term, condition, service or feature of an Account or of this Agreement. Company shall have thirty (30) days from the effective date of the
amendment to notify Bank of America in writing that the amendment is not accepted. Any such notice of non -acceptance shall be deemed to be a notice
of termination under Section 19 of this Agreement. Failure of Company to provide a notice of non -acceptance within thirty (30) days after the effective
Cpl Cc. ads_Pwzhery_Cad _Aemmvp_711144. FmJ Rs" 1/07
date of an amendment will mean that Company hiscepted the amendment. Unless otherwise stated, anamendment will apply to an Account's unpaid
balance and to new activity on the Account.
is. MERCHANT/SUPPLIER CLAIMS AND DISPUTES.
A. Bank of America will have no liability, and Company and each Participant and Cardholder will hold Bank of America harmless, for all
Transactions and for use of the Account. Company will make a good -faith effort to resolve with a merchant or supplier any claim or dispute arising from
a Transaction and waives any claim against Bank of America for any merchant's or supplier's refusal to honor any Device.
B. In a dispute with a merchant or supplier, the rights of the Company, any Participant and each Cardholder against the merchant or supplier will
become the rights of Bank of America, and Company and Participant will assign (and require the affected Cardholder to assign) to Bank of America each
of their rights to assert a billing error against the merchant or supplier. Company and the Participant will, and will require the Cardholder to, do
whatever is necessary to enable Bank of America to exercise those rights. Bank of America may reverse from the Account any credits relating to the
dispute.
16. FOREIGN TRANSACTIONS. MasterCard or Visa, as applicable, will convert to U.S. dollars any Transaction made in a currency other than U.S.
dollars in accordance with the card association's applicable rules. The conversion rate on the conversion date may differ from the conversion rate on the
Transaction date. Currently, MasterCard/Visa uses a currency -conversion rate of either a wholesale market rate or a government -mandated rate,
increased by an adjustment factor determined by Bank of America and Visa or MasterCard. In each case, Visa uses the rate in effect one day before the
conversion date and MasterCard uses a rate for the processing cycle. The adjustment factor, which is subject to change without notice, is currently I % of
the U.S. dollar amount, of which Bank of America receives 0% and Visa or MasterCard receives the remainder.
17. REPRESENTATIONS AND WARRANTIES.
A. Company and each Participant, as applicable, represents and warrants to Bank of America that:
1. In each state in which it conducts its business, it is properly licensed, in good standing, and, where required, in compliance with fictitious
name statutes.
2. All financial and other information that it has supplied or will supply to Bank of America, including without limitation, all information on its
application for the Account, is (a) accurate; (b) sufficiently complete to give Bank of America accurate knowledge of its and any Guarantor's financial
condition; (c) in compliance with all laws and regulations that apply.
3. There is no lawsuit, tax claim or other dispute pending or threatened against it which, if lost, would impair Company's financial condition
or ability to repay Bank of America under this Agreement, except as has been already disclosed in writing to Bank of America.
B. Bank of America represents and warrants to Company and each Participant that Bank of America is a national banking association with its
principal office in Phoenix, Arizona.
C. Each party to this Agreement (Company, each Participant and Bank of America) represents and warrants that:
I. There is no event which constitutes, or with notice or lapse of time or both would constitute, a default on its part under this Agreement.
2. Each person signing this Agreement below on its behalf presently hold the title set next to his/her name and is duly authorized by it to bind
the party to the terms and conditions of this Agreement.
18. PERIODIC REVIEW OF COMPANY.
A. During the term of this Agreement, when Bank of America from time to time requests information from Company or a Participant for the
purpose of reviewing Company's or Participant's ability to perform its obligations under this Agreement, Company will furnish the information
promptly. Bank of America and its affiliates and processing agents may exchange information about Company and Participants as that information
pertains to the rights and obligations in this Agreement.
B. Company will notify Bank of America in writing immediately of any change in the business name, the principal officers like the Chief
Executive Officer and Chief Financial Officer, the mailing address or the phone number of Company or a Participant. Company will also notify Bank of
America of any change of mailing address or phone number of any of its Cardholders.
19. TERMINATION. Either party may terminate this Agreement with or without cause upon sixty (60) daysprior written notice to the other party.
20. EVENTS OF DEFAULT
The following are events of default hereunder: (a) the failure to pay or perform any obligation, liability or indebtedness of Company, a Participant or a
Guarantor (each, an "Obligor") to Bank of America, or to any affiliate or subsidiary of Bank of America Corporation, whether under this Agreement or
any other agreement, as and when due (whether upon demand, at maturity or by acceleration); (b) the failure to pay or perform any other obligation,
liability or indebtedness of any Obligor to any other party; (c) the death of any Obligor (if an individual); (d) the resignation or withdrawal of any partner
or a material owner of any Obligor as determined by Bank of America in its sole discretion; (e) the commencement of a proceeding against any Obligor
for dissolution or liquidation, the voluntary or involuntary termination or dissolution of any Obligor or the merger or consolidation of any Obligor with
or into another entity; (f) the insolvency of, the business failure of, the appointment of a custodian, trustee, liquidator or receiver for or for any of the
property of, the assignment for the benefit of creditors by, or the filing of a petition under bankruptcy, insolvency or debtor's relief law or the filing of a
petition for any adjustment of indebtedness, composition or extension by or against any Obligor; (g) the determination by Bank of America that any
representation or warranty made to Bank of America or to any affiliate or subsidiary of Bank of America Corporation by any Obligor in any agreement or
otherwise is or was, when it was made, untrue or materially misleading; (h) the failure of any Obligor to timely deliver such financial statements,
including tax returns, other statements of condition or other information, as Bank of America shall request from time to time; (i) the entry of ajudgment
against any Obligor which Bank of America deems to be of a material nature, in Bank of America's sole discretion; (j) the seizure or forfeiture of, or the
issuance of any writ of possession, garnishment or attachment, or any turnover order for any property of any Obligor; (k) the determination by Bank of
America that it is insecure for any reason; (I) the determination by Bank of America that a material adverse change has occurred in the financial condition
of any Obligor; (m) the determination by Bank of America that any Obligor fails to meet the credit criteria initially used by Bank of America to approve
Obligor, or (n) the failure of any Obligor to comply with any law or regulation controlling its operation.
21. REMEDIES UPON DEFAULT. Whenever there is a default under this Agreement, (a) the entire balance outstanding on all Accounts and all
other obligations of any Obligor to Bank of America (however acquired or evidenced) shall, at the option of Bank of America, become immediately due
and payable; (b) any obligation of Bank of America to permit further Transactions under this Agreement shall immediately cease and terminate; and/or
Cpl -Capentc_evd Cnd_Aptmm_2I11 riul kv 101
(c) this Agreement or any Account may be tcrmin�y Bank of America. The foregoing remedies are addition to any other rights of Bank of
America under this Agreement.
22. EFFECT OF TERMINATION. Upon termination of this Agreement, Company will be responsible for promptly destroying all Devices.
Termination will not affect Company's liability for any charges or other obligations under this Agreement. After termination, this Agreement (except the
ability to use the Account for additional Transactions) will remain in force until all Transactions and Company's other obligations under this Agreement
are paid and satisfied in full. Further, Company shall ensure that no new Transactions are made on the Account. However, if any Transactions are made
after termination, Company will continue to be liable until they are paid in full.
23. GOVERNING LAW. This Agreement is made in Arizona. This Agreement and the Account, as well as Bank of America's rights and duties
regarding this Agreement and the Account, will be governed by the laws respecting national banking associations and, to the extent not so covered, by
the laws of the State of Arizona, regardless of where Company resides or where a Cardholder uses the Account at any time. Company will submit to the
personal jurisdiction of any state or federal court or of Judicial Arbitration and Mediation Service ("JAMS") located in the State of Arizona.
24. ARBITRATION.
A. This paragraph concerns the resolution of any controversies or claims between the parties, whether arising in contract, tort or by statute,
including but not limited to controversies or claims that arise out of or relate to: (i) this Agreement (including any amendments or modifications); or (ii)
any document related to this agreement; (collectively a "Claim").
B. At the request of any party to this agreement, any Claim shall be resolved by binding arbitration in accordance with the Federal Arbitration Act
(Title 9, U. S. Code) (the "Act"). The Act will apply even though this agreement provides that it is governed by the law of a specified state.
C. Arbitration proceedings will be determined in accordance with the Act, the applicable rules and procedures for the arbitration of disputes of
JAMS or any successor thereof, and the terns of this paragraph. In the event of any inconsistency, the terms of this paragraph shall control.
D. The arbitration shall be administered by JAMS and conducted in the state specified in the governing law section of this agreement. All Claims
shall be determined by one arbitrator; however, if Claims exceed $5,000,000, upon the request of any party, the Claims shall be decided by three
arbitrators. All arbitration hearings shall commence within 90 days of the demand for arbitration and close within 90 days of commencement and the
award of the arbitrator(s) shall be issued within 30 days of the close of the hearing. However, the arbitrator(s), upon a showing of good cause, may
extend the commencement of the hearing for up to an additional 60 days. The arbitrator(s) shall provide a concise written statement of reasons for the
award. The arbitration award may be submitted to any court having jurisdiction to be confirmed and enforced.
E. The arbitrator(s) will have the authority to decide whether any Claim is barred by the statute of limitations and, if so, to dismiss the arbitration
on that basis. For purposes of the application of the statute of limitations, the service on JAMS under applicable JAMS rules of a notice of Claim is the
equivalent of the filing of a lawsuit. Any dispute concerning this arbitration provision or whether a Claim is arbitrable shall be determined by the
arbitrator(s). The arbitrator(s) shall have the power to award legal fees pursuant to the terms of this agreement.
F. This paragraph does not limit the right of any party to: (i) exercise self-help remedies, such as but not limited to, setoff; (ii) initiate judicial or
nonjudicial foreclosure against any real or personal property collateral; (iii) exercise any judicial or power of sale rights, or (iv) act in a court of law to
obtain an interim remedy, such as but not limited to, injunctive relief, writ of possession or appointment of a receiver, or additional or supplementary
remedies.
d. The filing of a court action is not intended to constitute a waiver of the right of any party, including the suing party, thereafter to require
submittal of the Claim to arbitration.
25. COSTS AND ATTORNEY FEES. If either party incurs expenses related to the enforcement of, or takes collection action under, this Agreement,
the prevailing party is entitled to recover from the other party costs and reasonable attorney fees.
26. TELEPHONE MONITORING. Bank of America may listen to and/or record telephone calls between a Bank of America employee and any
person acting on Company's or a Participant's behalf for the purpose of monitoring and improving the quality and effectiveness of Bank of America's
communication.
27. SUCCESSORS AND ASSIGNS. This Agreement and all terms and conditions hereof, are not assignable or transferable by Company or any
Participant without Bank of America's prior written consent. All the terms and provisions of this Agreement will inure to the benefit of and be binding
upon each party and its successors and permitted assigns.
28. NOTICES. Any notice required or permitted under this Agreement shall be effective only if it is in writing and (i) personally delivered, (ii) sent by
U.S. mail, postage prepaid, (iii) sent by a nationally recognized overnight delivery service, with delivery confirmed, (iv) telecopied, if confirmed with an
error -fret transmission report, or (v) c -mailed to such e-mail address as shall have been furnished to the other party, with delivery confirmed, addressed
as set forth below. Such notices shall be deemed to have been duly given either five (5) business days after the date of mailing by U.S. mail as described
above or if otherwise sent, on the business day of receipt. Notices delivered after 5:00 p.m. shall be considered received on the next business day. A
party may alter the address or telecopy number to which notices are to be sent by giving notice of such change in conformity with the provisions of this
Section 28.
Cvi_Capne Pwt Cwd_A�e,e._retw. FSw Rev rmr
Notices to Bank of America must be sent to: • Notices to Company must be sent to:
A. (for U.S. Mail)
Bank of America
P.O. Box 2463
Spokane, WA 99210-2463
(for overnight delivery service)
Bank of America
Commercial Card
Floor 2
1616 South Rustle Street
Spokane, WA 99224
OR:
B. Bank of America's Large Corporate and Commercial
Card Services representative for Company's program
at the address designated during implementation of
Company's program
C. WITH A COPY to the following address if the notice relates to a Claim:
Counsel for Commercial Card Services
Bank of America Legal Department
101 South Tryon Street
NCI -002-29-01
Charlotte, NC 28255
A. City of Fayetteville
Mayor Dan Coody
113 W Mountain
Fayetteville, AR 72701
Telephone: 479/575-8289
c -mail: dcoody@ci.fayetteville.ar.us
29. SEVERABILITY. If any provision of this Agreement is held to be invalid, void or unenforceable, all other provisions in this Agreement will
remain valid and enforceable.
30. LIMITATION OF LIABILITY. BANK OF AMERICA SHALL NOT BE LIABLE TO COMPANY, ANY PARTICIPANT OR CARDHOLDER,
FOR ANY ACTION TAKEN OR OMITTED TO BE TAKEN IN CONNECTION WITH THIS AGREEMENT EXCEPT FOR DIRECT DAMAGES
ARISING FROM BANK OF AMERICA'S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT, IN NO EVENT SHALL BANK OF
AMERICA BE LIABLE TO COMPANY, ANY PARTICIPANT OR CARDHOLDER, FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL OR
PUNITIVE DAMAGES OR LOST PROFITS OR LOST DATA.
31. WARRANTY DISCLAIMER ALL SERVICES, EQUIPMENT, SOFTWARE AND OTHER PRODUCTS FURNISHED BY BANK OF
AMERICA TO COMPANY OR A PARTICIPANT ARE PROVIDED ON AN "AS IS,"AS AVAILABLE" BASIS AND BANK OF AMERICA
EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A
PARTICULAR PURPOSE.
32. ONE AGREEMENT. This Agreement and any other agreements required by this Agreement, collectively: (a) represent the sum of the
understandings and agreements between Bank of America and Company concerning the subject matter of this Agreement; (b) replace any prior oral or
written agreements between Bank of America and Company concerning this Agreement, and (c) are intended by Bank of America, Company and each
Participant as the final, complete and exclusive statement of the agreement between/among them. No failure on the part of Bank of America to exercise,
and no delay in exercising any right under this Agreement, will operate as a waiver of that right. Unless other provisions in this Agreement expressly
provide otherwise, the terms of this Agreement will prevail if there is a conflict between this Agreement and any other agreements required by this
Agreement.
IN WITNESS WHEREOF, the parties hereby execute this Agreement as of the Effective Date shown below.
BANK OF AMERICA, N.A. (USA) CITY OF FA
Sigoaturc: Signature:
Name: _-- Name: D:
Title: Title: Mayor
Date: Date: 9/3/03
Telephone Number: 479/575-8289
EFFECTIVE DATE:
CyI Capone Hut3�a Csd_At .,,.,, 2Cigu. Fv Rev 3V2
ADDENDUM TO BANK OF AMERICA
CORPORATE PURCHASING CARD AGREEMENT
THIS ADDENDUM (the Addendum") is dated September 3, 2003 by and between City of
Fayetteville ("Company") and Bank of America, N.A. (USA) ("Bank of America") and amends
the Bank of America Corporate Purchasing Card Agreement between the parties dated
September 3, 2003 (the "Agreement").
WHEREAS, the parties desire to add to and modify certain terms of the Agreement;
NOW, THEREFORE, for valuable consideration, the parties hereby agree as follows:
1. DEFINITIONS
Terms capitalized herein and not otherwise defined shall be given the meaning ascribed to
them in the Agreement.
2. AMENDMENTS
GENERAL. All references to "Company" are revised to "City of Fayetteville".
Section 1.
DEFINITIONS. As
Company
does not desire Convenience Checks, Section 1,
paragraph
E, of the Agreement is
deleted in
its entirety and replaced by the following:
E. "Card Administrator" means an individual or individuals authorized by Company or a
Participant, as applicable, to request Bank of America to add or delete Cards and to
communicate with Bank of America and take other action needed to maintain the
Account.
Section 1.
DEFINITIONS. As
Company
does not desire Convenience Checks, Section 1,
paragraph
G, of the Agreement is
deleted in
its entirety and replaced by the following:
G. "Cardless Account, " also called a "Control Account," means an Account for which Bank
of America assigns only an Account number, but provides no Card.
Section
1. DEFINITIONS.
As Company does
not desire
Cash
Advances or Convenience
Checks,
Section 1, paragraph
H, of the Agreement
is deleted
in its
entirety.
Section 1. DEFINITIONS. As Company does not desire Convenience Checks, Section 1,
paragraph I, of the Agreement is deleted in its entirety.
415791 -Addendum to BA Corporate Card Agreements Page I of 4
0
Section 1. DEFINITIONS. As Company does not desire Convenience Checks, Section 1,
paragraph J, of the Agreement is deleted in its entirety and replaced by the following:
J. "Device" means a device such as a Card or Account number, which Bank of America
provides under this Agreement to use to make Transactions or other charges on the
Account.
Section 1.
DEFINITIONS.
As Company
does not desire Cash Advances, Section 1,
paragraph O,
of the Agreement
is deleted in its
entirety and replaced by the following:
O. "Transaction" means a purchase or reservation of goods or services made or facilitated by
use of a Device or the Account.
Section 3. USE OF ACCOUNT AND DEVICES. As Company does not desire Cash
Advances, Section 3, paragraph C, clause 1, of the Agreement is deleted in its entirety and
replaced by the following:
I. A Cardholder using a Card for a Transaction may sign a sales draft which the merchant's
financial institution processes. However, failure to sign a sales draft or receive a sales
receipt will not relieve Company of its obligations under this Agreement. Company
should retain or should direct each Cardholder to retain each sales draft as a record of the
Transaction.
Section 3. USE OF ACCOUNT AND DEVICES. As Company does not desire
Convenience Checks, Section 3, paragraph C, clause 3, of the Agreement is deleted in its
entirety and replaced by the following:
3. Company and each Cardholder will check to see that the information embossed on a new
Card and sent to Company or Cardholder is correct. If there is an error, Company will
notify Bank of America immediately.
Section 3.
USE OF ACCOUNT AND
DEVICES. As
Company
does not desire
Convenience
Checks, Section 3, paragraph D,
of the Agreement
is deleted in
its entirety.
Section 3. USE OF ACCOUNT AND DEVICES. As Company does not desire
Convenience Checks, Section 3, paragraph F, of the Agreement is deleted in its entirety and
replaced by the following:
F. If Company
or Participant
desires to terminate the
Account or Card
use by a
Cardholder,
Company or
Participant, as applicable, will notify
Bank of America
and will
destroy the
415791 -Addendum to BA Corporate Cud Agreements Page 2 of 4
0
Devices issued or provided to that Cardholder. Company may exclude a Participant from
the Account by giving Bank of America written notice, and Bank of America will have a
reasonable period of time to act on any such notice. If this Agreement terminates,
Company will be responsible for promptly destroying all Devices for the Account.
Section 5.
COMPANY LIABILITY;
ACCEPTANCE
OF AGREEMENT. Section 5,
paragraph
D, of the Agreement is deleted
in its entirety and
replaced by the following:
To the extent permitted by law, the City shall indemnify and defend Bank of America against
any and all claims, actions, losses, suits, and demands for damages or costs and expenses
(including attorney fees) related to this Agreement. This indemnification does not waive or
reduce the City's statutory immunity as to any third party claimants nor provide any third
party beneficiary rights to any claimant or other person or entity. This indemnification shall
apply to all usage of a Cardless Account or Account established in the name of "Authorized
Representative," a department name or other such designation that is not an actual individual
regardless of any restriction on Company's liability contained in this Agreement.
Section 9. LOST OR STOLEN CARDS. Section 9, paragraph B, of the Agreement is
deleted in its entirety and replaced by the following:
B. If a Device such as a Card or Account Number is lost or stolen, or if there is possible
Unauthorized Use, Company must require each Participant and Cardholder to notify
Bank of America as soon as practically possible within the first 24 hours following
discovery of the loss or theft or possible Unauthorized Use by phoning Bank of America
at the phone number provided for such notice on the Billing Statement, with written
confirmation as requested in connection with Bank of America's investigation. If (i)
notice as provided in this Section is given within the first 24 hours; and (ii) Company
assists Bank of America in investigating facts and circumstances relating to the loss or
theft or possible Unauthorized Use of any Device, including without limitation, obtaining
an affidavit or similar written, signed statement from the Cardholder, then Company or
Participant, as applicable, will not be liable for Transactions resulting from Unauthorized
Use.
3. RATIFICATION
All of the terms of the Agreement not expressly modified herein shall continue in full force
and effect and are hereby ratified by the parties hereto.
415791 Addendum to BA Corporate Card Agreements Page 3 of 4
IN WITNESS WHEREOF, the parties have executed this ADDENDUM as of the date shown
above.
CITY OF FAYETTEVILLE
By:
Print name: Dan Coody
Title: Mayor
BANK OF AMERICA, N.A. (USA)
By:
Print name:
Title:
415791 -Addendum to BA Corporate Cad Agreements Page 4 of 4
FAvETTEvtl.,LE
C� oOp�'l
THE CITY OF FAYETTEVLLLE, ARKANSAS
September 4, 2003
Bank of America
Kim Christian, Vice President
231 S. LaSalle Street
60' Floor
Chicago, IL 60697
Dear Kim:
Enclosed are two original signed copies of the Corporate Purchasing Card Agreement and
Addendum. Please have them signed and return one original copy to us.
We are anxious
to get
this
program going. I
look forward to hearing from you with the
installation and
setup
plan.
Thanks for all
of your help.
If you
have questions
or
need
anything
further,
please call me at 479/575-8289 or email me at
pyice(@,c
i. favettev i
l l e.
ar.
us.
Sincerely,
Peggy Vice
Purchasing Manager
cc: Sondra Smith, City Clerk
113 WEST MOUNTAIN 72701 479-5754289
FAX 479.575.8241
FAYETTEV?LLE
THE Cm OF FAYETTEVILLE, ARKANSAS
DEPARTMENTAL CORRESPONDENCE
TO: Peggy Vice
Purchasing Manager
FROM: Sondra Smith
City Clerk
DATE: 09/04/03
SUBJECT: Contract with Bank of America
Corporate Purchasing Card Agreement
Attached
is a copy of Resolution
133-03 for the above referenced contract.
I am attaching the two
original contracts for you to have
Bank of America sign. Please have them
sign both original
contracts
and return one original
contract to the City Clerk's
office.
When the original signed contract is returned it will be microfilmed and filed with the City Clerk.
Thanks!
Sondra Smith
City Clerk
cc: Nancy Smith, Internal Auditor
City of Fayetteville
Staff Review Forme
City Council Agenda Items
or
Contracts
N/A
City Council Meeting Date
Peggy Vice i Wes-"- Purchasing Finance & Internal Services
Submitted By Division Department
Cost of this request
N/A
Account Number
Project Number
Budgeted Item �X
Department Director
T7
rn„ AMnrnov
Action Required:
ca P -Card Contract to
N/A
Category / Project Budget
N/A
N/A
Program Category / Project Name
Funds Used to Date Program / Project Category Name
Remaining Balance
Budget Adjustment Attached
tt^ I(, -0t;
Various Funds
Fund Name
Previous Ordinance or Resolution #
Date Original Contract Date:
Original Contract Number:
ate
Fe
ADDENDUM TO BANK OF AMERICA
CORPORATE PURCHASING CARD AGREEMENT
THIS ADDENDUM (the Addendum") is dated ,{fd 112,V1Ur- 02/, 02 00.. by and
between the City of Fayetteville, Arkansas ("Company") and FIA Card Services, N.A. ("Bank of
America") and amends the Bank of America Corporate Purchasing Card Agreement between the
parties dated September 9, 2003 (the "Agreement").
WHEREAS, the parties desire to add to and modify certain terms of the Agreement;
NOW, THEREFORE, for valuable consideration, the parties hereby agree as follows:
1. DEFINITIONS
Terms capitalized herein and not otherwise defined shall be given the meaning ascribed to
them in the Agreement.
2. AMENDMENTS
Schedule C.. SCHEDULE C TO THE BANK OF AMERICA PURCHASING CARD
AGREEMENT. Schedule C is added to the above referenced Purchasing Card Agreement.
3. RATIFICATION
All of the terms of the Agreement not expressly modified herein shall continue in full force
and effect and are hereby ratified by the parties hereto.
IN WITNESS WHEREOF, the parties have executed this ADDENDUM as of the date shown
above.
CITY OF F
YETTE LLE, A (ANSAS FIA CARD SERVICES, N.A.
By: ___ C By: tq 1 D l 4
Print name: Dan Coody Print name:Lis A
Title: Mayor Title: U i 6 P2�SI oevT
Attest by: /n1 GFndir-� �l►uG� �.o`FRWTR"''��,,
G\T Y
Print name: Sondra Smith:
;FAYETTEVILLE:
Title: City Clerk
Page I of I
SCHEDULE C
TO
BANK OF AMERICA PURCHASING CARD AGREEMENT
City of Fayetteville
(Cycle and Grace Days)
REBATE DEFINITIONS:
Capitalized terms, which are not defined in this Schedule C have the meaning ascribed in Section 1 of the
Agreement to which this Schedule C is attached.
"Calculation Period" means, initially, the 12 -month period commencing January 1, 2006 and thereafter, each
subsequent 12 -month period.
"Cycle Days" means the number of days from the start of the billing period to the statement date.
"Grace Days" means the number of days from the statement date that payment is due.
"Large Ticket Interchange Transactions" means certain transactions which, based upon the type of merchant
and/or transaction dollar amount, are subject to a Visa or MasterCard large ticket interchange program, as
determined by and amended by Visa and MasterCard from time to time.
"Rebate Multiplier" means the multiplier corresponding to the Standard Transaction Volume and Cycle and
Grace Days as set forth in the Standard Transactions Rebate Multiplier Table, and the multiplier corresponding
to the Large Ticket Interchange Transaction Volume and Cycle and Grace Days set forth in the Large Ticket
Interchange Transactions Rebate Multiplier Table below.
"Standard Transactions" means the Transaction Volume not meeting the criteria for Large Ticket Interchange
Transactions.
"Total Credit Losses" means, for any Calculation Period, the sum of (i) Bank of Americas credit losses on the
Accounts for the Calculation Period and (ii) Bank of America's credit losses on the Accounts for any previous
Calculation Period which have not been applied against any rebate payable under this Agreement.
"Transaction Volume" means, for any Calculation Period, the total dollar amount of purchase transactions made
with the Cards during the Calculation Period, less the total dollar amount of: returned purchases, credit
adjustments, Transactions resulting from Unauthorized Use, and disputed charges. Cash advances and
Convenience Checks are not included in Transaction Volume.
REBATE CONDITIONS:
The program must meet the following conditions in order to qualify for a rebate:
(i) During the Calculation Period, Company and Participant pay Bank of America the total amount of the new
balance shown as due on each Billing Statement on or before the Payment Due Date;
(ii) Neither Company nor Participant has breached any obligation, covenant, representation or warranty contained
in this Agreement;
(iii) For the Calculation Period, and Transaction Volume is at least $1,000,000.
REBATE CALCULATION AND PAYMENT:
In the event that all of the above Rebate Conditions are met with respect to the Calculation Period, Bank of America
shall pay a rebate to Company, which shall be calculated at the end of the Calculation Period in accordance with the
respective Multiplier Tables for Standard and Large Ticket Interchange Transactions and using the following
equation:
(Transaction Volume for Standard Transactions x Rebate Multiplier) + (Transaction Volume for Large
Ticket Interchange Transactions x Rebate Multiplier) — Total Credit Losses
Payment of any rebate shall be made by ACH credit or other means determined by Bank of America, within ninety
(90) days following the end of the Calculation Period. No rebate shall be paid to any Participant.
Should one or more of the above Rebate Conditions not be met, Bank of America shall be under no obligation to pay
any rebate, although Bank of America may, in its sole discretion, determine to pay a rebate in an amount determined
by Bank of America. Bank of America's payment of a rebate in such circumstance shall in no way obligate Bank of
America to pay a rebate with respect to any subsequent Calculation Period.
STANDARD TRANSACTIONS REBATE MULTIPLIER TABLE
Purchase Card Annual Volume Tiers
Excludes Large Ticket
30 day cycle /25 day race
Average Transaction Amount
$125 to
$174.99
$175 to
$224.99
$225 to
$299.99
$300 +
REBATE
$1,000,000 to $1,999,999
0.81%
0.87%
0.89%
0.91%
$2,000,000 to $2,999,999
0.89%
0.93%
0.94%
0.96%
$3,000,000 to $4,999999
0.96%
0.99%
1.00%
1.02%
$5,000,000 to 59,999,999
0.97%
1.00%
1.01%
1.03%
$10,000,000 to $14,999,999
0.98%
1.01%
1.02%
1.04%
$15,000,000 to $19,999,999
0.99%
1.02%
1.03%
1.05%
$20,000000 to 539,999 999
1.00%
1.03%
1.04%
1.06%
$40,000,000 to $59,999,999
1.02%
1.05%
1.06%
1.08%
$60,000,000 to $79,999,999
1.04%
1.07%
1.08%
1.10%
$80000,000 to $99,999,999
1.07%
1.10%
1.11%
1.13%
$100,000,000 +
1.09%
1.12%
1.13%
1.15%
LARGE TICKET INTERCHANGE TRANSACTIONS
Qualified large ticket interchange transactions will be paid a rebate of 0.40%
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aye rev le
ARKANSAS
THE CITY OF FAYETTEVILLE, ARKANSAS
To: Mayor Dan Coody
Thru: Paul Becker, Finance & Internal Services Director
From: Peggy Vice, Purchasing Manger
Date: Nov. 9, 2006
Subj: Bank of America- Addendum to Contract
Recommendation: Staff recommends approval of addendum to the City's Bank of
America P -Card contract.
Discussion: Bank of America is the City's p -card program administrator. To entice the
City to increase it's purchasing volume through the p -card, Bank of America has offered
an addendum to the City's p -card contract that allows a rebate check back to the City of
Fayetteville based on annual dollar volume and average transaction amount purchased
through the program.
The City's p -card volume to date for 2006 is $1,593,810.43. Based on the current
volume and approving the addendum before the end of 2006 will result in a minimum
rebate check of $14,822.44.
There is no increased risk to the City of Fayetteville to use the p -card over normal
purchasing methods:
• A cardholder submits a purchase request the same as if they were submitting a
purchase order. It is submitted electronically and approved electronically.
• The department approver reviews the request for budget, etc. before approving it.
• A purchase of $1,000 or greater, is routed and reviewed by the purchasing
division for applicable procurement laws, policy, proper approvals, etc.
• When the transaction charge comes in, it goes through the same approval process
before it is routed to Accounting to pay the bill.
The Purchasing division administers the program. This includes setting up new users,
issuing cards, training and monitoring of card transactions. Users are not issued a card
until they have been trained. The program has been fully implemented in all departments
and all cardholders have been trained.
133-03
BANK OF AMEN JA CORPORATE PURCHASING CARD AJ.EEMENT
This Bank of America Corporate Purchasing Card Agreement (the "Agreement") is made by and between Bank of America, N.A. (USA),
("Bank of America'), a national banking association, and City of Fayetteville ("Company") and shall be effective as of the Effective Date set forth below.
Recitals
A. Bank of America is a member of MasterCard® International Incorporated ("MasterCard") and Visa® U.S.A. Inc. ("Visa") with full power
and authority to issue cards for business and commercial use;
B. Bank of America issues and services corporate purchasing cards for business and commercial use; and
C. Company desires to obtain and use, and Bank of America desires to issue to Company, one or more corporate purchasing card accounts
which will be subject to the terms and conditions in this Agreement.
NOW, THEREFORE, for valuable consideration, the parties agree as follows.
1. DEFINITIONS.
A. "Account" means each MasterCard or Visa Corporate Purchasing Card account, including a Cardless Account, which Bank of America (i)
issues pursuant to this Agreement or (ii) issued (and still outstanding as of the Effective Date of this Agreement) pursuant to a previous agreement no
longer in effect. Each reference in this Agreement to "the Account" will mean Company's Account, a Participant's Account, a Cardholder's Account, or
any combination of them, as applicable.
B. "Billing Statement" means the official invoice provided to Company, Participant and/or Cardholder which identifies each Transaction posted
during the billing cycle, the date of each Transaction and the applicable fees and charges. Unless otherwise determined by Bank of America, the official
invoice is in paper, not electronic, medium.
C. "Business Use" means use for business -related purposes.
D. "Card" means each plastic charge card which Bank of America issues or has issued for the Account which is not a Cardless Account.
E. "Card Administrator" means an individual or individuals authorized by Company or a Participant, as applicable, to request Bank of America to
add or delete Cards or Convenience Checks and to communicate with Bank of America and take other action needed to maintain the Account.
F. "Cardholder" means an employee or agent of Company or of a Participant who Company or a Participant designates in writing and who Bank
of America approves to receive an Account or a Device, including a Cardless Account. If a Cardholder or a Card Administrator makes a Device
available for use by another party, that person will be considered a Cardholder.
G. "Cardless Account," also called a "Control Account," means an Account for which Bank of America assigns only an Account number, but
provides no Card or Convenience Checks.
H. "Cash Advance" means use of the Account to obtain cash from a participating financial institution or merchant or from an ATM, to write
-.tvenience Checks, or to obtain items readily convertible into cash including, without limitation, money orders, travelers checks, foreign currency,
lottery tickets, casino chips and racetrack wagers.
1. "Convenience Check" means each check which Bank of America at its discretion provides to Company or a Participant to use the Account.
J. "Device" means a device such as a Card, Account number or, where applicable, a Convenience Check which Bank of America provides under
this Agreement to use to make Transactions or other charges on the Account.
K. "Guarantor" means a person or entity, other than Company or a Participant, that agrees to assume responsibility for the obligations of this
Agreement, including payment of any amounts owed.
L. "Participant" means a subsidiary, affiliate or division of Company which Company designates in writing on a Participant Account Form and
which Bank of America approves, for Bank of America to issue an Account with its own Account number. A Participant Account Form, upon
completion by Company and approval by Bank of America, will be made a part of this Agreement.
M. "Payment Due Date" means the payment due date shown on the Account Billing Statement which date shall be the last day of the Settlement
Period.
N. "Settlement Period" means the number of days after the statement closing date within which payment is due, as designated in Schedule A
hereto.
O. "Transaction" means a purchase or reservation of goods or services or a Cash Advance made or facilitated by use of a Device or the Account.
P. "Unauthorized Use" means use of the Account or a Device by a person (i) who is not a Cardholder; (ii) who does not have actual, implied or
apparent authority to use the Account or Device; and (iii) whose use does not result in a direct or indirect benefit for Company, a Participant or
Cardholder.
2. EXCLUSIVITY.
Company grants Bank of America the exclusive right to issue and provide to Company, each Participant and each Cardholder credit cards for use in
connection with the procurement of goods and services incidental to Company's or Participant's business or business activities, including travel and
entertainment expenses. During the term of this Agreement, Company will use no other card issuer for this purpose.
3. USE OF ACCOUNT AND DEVICES.
A. The Account and Devices will be used only for Transactions in connection with the procurement of goods and services incidental to
.npany's or Participant's business or business activities, including travel and entertainment expenses.
B. The Account will be used for Business Use only, and Company will so advise and require each Cardholder and each Participant accordingly.
Company will pay for Transactions and fees which Bank of America applies to the Account or Devices.
C. Company and each Participant will follow, and will take all steps necessary or prudent to require each Cardholder to follow, the following
Cpl_Cap"r _Pwdmk%_CN_Apemie"_rl 1144- FiW Rev 31W
procedures:
I. A Cardholder using a Card for a Transaction may sign a sales draft or Cash Advance draft which the merchant's financial institution
processes. However, failure to sign a sales draft or receive a sales receipt will not relieve Company of its obligations under this
Agreement. Company should retain or should direct each Cardholder to retain each sales draft or Cash Advance draft as a record of the
Transaction.
2. A Card will not be used before the Card's valid date or after the Card's expiration date.
3. Company and each Cardholder will check to see that the information embossed on a new Card or printed on Convenience Checks and sent
to Company or Cardholder is correct. If there is an error, Company will notify Bank of America immediately.
D. If Bank of America provides Convenience Checks, they may not be used to make payment on the Account or any other loan or line of credit.
Convenience Checks will not be returned to Company or any Participant or Cardholder. Bank of America may pay a Convenience Check and post its
amount to the Account regardless of any restriction on payment, including, without limitation, a Convenience Check which is post-dated, states that it is
void after a certain date or states a maximum or minimum amount for which it may be written. To stop payment on a Convenience Check, Company or
Cardholder must call Bank of America at the Customer Service number shown on the Account Billing Statement with all the following information: the
exact dollar amount of the Convenience Check; the Convenience Check number, the Account number; the name of the party to whom the Convenience
Check was written and the name of the person who signed the Convenience Check. Bank of America will stop payment on the Convenience Check if
Bank of America receives the stop payment request by the business day before the day Bank of America pays the Convenience Check. The date Bank of
America pays the Convenience Check may be before the date it posts to the Account. The stop payment order will remain effective for six (6) months.
E. Bank of America may, at the request of Company or a Participant, establish a Cardless Account.
F. If Company or Participant desires to terminate the Account or Card use (including, where applicable, use of Convenience Checks) by a
Cardholder, Company or Participant, as applicable, will notify Bank of America and will destroy the Devices issued or provided to that Cardholder.
Company may exclude a Participant from the Account by giving Bank of America written notice, and Bank of America will have a reasonable period of
time to act on any such notice. If this Agreement terminates, Company will be responsible for promptly destroying all Devices for the Account.
O. A Transaction may require the merchant, supplier or financial institution to seek prior authorization from Bank of America before completing
the Transaction. If Company advises Bank of America in writing of its desire to restrict a certain type of Transaction identified by a certain merchant
category ("Merchant Category Code"), Bank of America will take reasonable steps to withhold a requested authorization of that Transaction type,
provided it is identified by the appropriate Merchant Category Code. However, Bank of America will not be liable to Company if merchants, suppliers
or financial institutions nonetheless accept a Card or the Account for that Transaction type.
H. Bank of America is not liable if a merchant or supplier does not honor a Card or if authorization is not given.
1. If Participant is or no longer will be a majority -controlled subsidiary, affiliate or division of Company, Company must notify Bank of America
immediately; Bank of America will have the right to terminate any Account or Device which that Participant or Participant's Cardholders use.
J. Bank of America may, at the request of Company or a Participant, establish an Account with a designation which is not an actual individual,
including, without limitation, a vehicle identification number, license number, department name or "Authorized Representative".
K. Bank of America may deny authorization for any Transaction if Bank of America suspects fraudulent activity or Unauthorized Use, or for other
reasons. Bank of America is not liable for any failure to authorize a Transaction.
4. CHARGE LIMIT.
A. There will be one total charge limit for the Company Account and Participant Account ("Aggregate Charge Limit"). Each Card will have its
own charge limit ("Card Limit"). In its sole discretion, and for purposes of limiting potential losses or for administering time -sensitive requests, Bank of
America may increase or decrease the Aggregate Charge Limit or any Card Limit.
B. Company, a Participant and Cardholders will not incur Transactions which would cause the sum of Company's and Participant's unpaid balance
to exceed the Aggregate Charge Limit or to cause a Card Limit to be exceeded. Any amount exceeding the Aggregate Charge Limit or Card Limit shall
be immediately due and payable.
C. If the Aggregate Charge Limit or a Card Limit is exceeded, or if an Account payment is late, Bank of America shall no longer be obligated to
allow any further Transactions.
5. COMPANY LIABILITY; ACCEPTANCE OF AGREEMENT.
A. By activating, signing or using any Device or Account, Company agrees to be bound by this Agreement regardless whether Company signs this
Agreement. Company will pay Bank of America for all Transactions, whether Company or Cardholder billed, regardless of the purpose for which the
Transaction is made, and for applicable fees and charges described in Schedules A and B.
B. Company's responsibility for Card and Account usage will continue until: (1) Receipt by Bank of America of Company's or a Participant's
written notice to close the Card or the Account; (2) actual closure of the Account by Bank of America; and (3) payment to Bank of America of all
amounts due under this Agreement.
C. Company does hereby grant to Bank of America a security interest and contractual right of offset in and to, all deposit accounts now or
subsequently maintained by the Company with Bank of America or any of its affiliates and subsidiaries. The Company, by its execution of this
Agreement or use of a Device, authorizes Bank of America to enter into a master control agreement with its affiliates and subsidiaries authorizing, upon
the occurrence and continuance of any default under this Agreement, the disposition of funds in any such deposit account to satisfy all liabilities incurred
hereunder, without the further consent of the Company. The Company's execution of this Agreement or use of a Device shall constitute an authenticated
record for the purposes of establishing control of such deposit accounts under the Uniform Commercial Code.
D. Company agrees to indemnify Bank of America and hold Bank of America harmless from, all claims, actions, losses, costs and expenses
eluding attorneys' fees and allocated costs for in-house legal services) incurred by Bank of America arising from any Unauthorized Use of a Cardless
:ount or Account established in the name of "Authorized Representative, a department name or other such designation that is not an actual
individual. This Section 5.D. takes precedence over any restriction on Company's liability contained in this Agreement.
6. BILLING STATEMENTS.
Cp1_Capw _Pwdiw_Cad_Apemel 2tI8N- Fwd Rev 3O2
A. tank of America will provide a Billini .kement to the Card Administrator or to such ot4. kompany employee or agent as Company
designates in writing.
B. Bank of America may provide Company and the Participant, as applicable, a monthly report listing each Cardholder who has an Account
balance unpaid since the Payment Due Date on the most recent Billing Statement issued to the Cardholder and therefore is subject to cancellation of
^:.,count charge privileges ("Delinquency Report"). Providing the Delinquency Report shall not constitute a waiver by Bank of America of any rights
)d remedies it may have underthis Agreement. i o o > , e - e r r. e zJs e
7. PAYMENTS.
A. Company will pay Bank of America the total amount of the new balance shown as due on each Billing Statement on or before the Payment Due
Date shown on that Billing Statement. If Company does not make payment in full by the Payment Due Date, Bank of America, at its option, may assess
a late fee and finance charge in accordance with this Agreement. Assessment of a late fee or finance charge shall not be deemed to extend the time for
any payment hereunder or to constitute a "grace period" in which to cure any default.
B. Company or a Participant may arrange for direct Account payment to Bank of America from Cardholders. No such arrangement will amend or
modify Company's liabilities, including responsibility for payment, in this Agreement.
C. There is no right to defer any payment due on the Account.
D. Company shall make payment electronically via the Automated Clearing House (ACH), and Bank of America may initiate ACH debits to any
deposit account specified by Company at any financial institution.
E. All remittances must include the complete Account number in order to be processed. Failure to include the complete Account number shall
constitute a failure to make the payment.
a. CARD ADMINISTRATOR. Company will identify one or more Card Administrator(s) who will be Bank of America's primary contact for such
things as: designation of Cardholders, designation of Cardholders to receive any Devices, and correspondence regarding the Account or this Agreement,
except as provided elsewhere in this Agreement. Company may add, change or eliminate a Card Administrator by giving Bank of America written
notice.
9. LOST OR STOLEN CARDS.
A. Each Transaction resulting from use of a Device will be assumed to be an authorized Transaction unless Bank of America has received prior
written notice from Company or a Participant, as applicable, that the Cardholder is no longer authorized to use the Account.
B. If a Device such as a Card or Convenience Check is lost or stolen, or if there is possible Unauthorized Use, Company must require each
Participant and Cardholder to notify Bank of America as soon as practically possible within the first 24 hours following discovery of the loss or theft or
possible Unauthorized Use by phoning Bank of America at the phone number provided for such notice on the Billing Statement, with written
confirmation as requested in connection with Bank of America's investigation. If(i) notice as provided in this Section is given within the first 24 hours;
and (ii) Company assists Bank of America in investigating facts and circumstances relating to the loss or theft or possible Unauthorized Use of any
vice, including without limitation, obtaining an affidavit or similar written, signed statement from the Cardholder, then Company or Participant, as
_pplicable, will not be liable for Transactions resulting from Unauthorized Use.
to. LICENSE TO USE COMPANY'S MARKS. If requested by Company, Bank of America may place Company's trademark, tradename, service
mark and/or designs ("Company's Marks") on the Card and collateral materials. Company shall provide the graphics to Bank of America in sufficient
time to allow for review and approval by Bank of America and, if necessary, the respective card association. Company grants to Bank of America a non-
exclusive license to use, during the term of this Agreement, Company's Marks on the Cards and on other materials related to the Accounts. Company
agrees to defend, indemnify and hold harmless Bank of America, its affiliates and their respective directors, officers, agents and employees for any and
all losses, costs, liabilities or expenses (including, without limitation, attorneys' and expert witnesses' fees) incurred or arising from any claim that the use
of any of Company's Marks infringes the intellectual property rights of any third party.
11. SOFTWARE. WOrk.5 t f, e^ 3r1 �e• t�y 4 oe wale —.
A. The use of Visa InfoSpan software, MasterCard Smart Data softwar or any other third party software program and related documentation, if
any, provided in connection with this Agreement shall be governed by the terms of the end -user agreement accompanying the software.
B. Upon payment of the requisite license and related fees, Bank of America grants Company a non-exclusive, non -transferable, enterprise license
to use for internal business purposes the EAGLSO software ("Software") and documentation as amended from time to time by Bank of America
("Documentation") which is provided by Bank of America to Company. Title, ownership rights and intellectual property rights in the Software and
Documentation shall remain in Bank of America or its parent, Bank of America Corporation. Company acknowledges such ownership and intellectual
property rights and will not take any action to jeopardize, limit or interfere in any manner with Bank of America's or its parent company's rights with
respect to the Software or Documentation. Company agrees to use the Software and Documentation as specified by Bank of America.
12. FEES. Company agrees to pay the fees and charges set forth in Schedule A and Schedule B hereto which are incorporated herein by reference.
13. FINANCE CHARGE. In the event Company fails to pay the total amount shown as due on a Billing Statement by the Payment Due Date shown on
that Billing Statement, the amount unpaid shall be subject to a finance charge starting no sooner than the first day of the next billing cycle. To calculate
the finance charges for a billing cycle, the daily periodic rate is multiplied by the average daily balance, and that product is multiplied by the number of
days in the billing cycle. The daily periodic rate is the annual percentage rate divided by 365. The annual percentage rate is the prime rate published in
the Money Rates section of The Wall Street Journal in effect on the first day of each calendar month (the "Prime Rate") plus the number of percentage
points stated in Schedule A. The average daily balance is the sum of the daily past due balances (including, for each day, finance charges from previous
•-•') less payments credited to the past due balance, divided by the number of days in the billing cycle.
+. AMENDMENT OF THIS AGREEMENT. Bank may, upon written notice to Company, amend this Agreement by changing, adding or deleting
any term, condition, service or feature of an Account or of this Agreement. Company shall have thirty (30) days from the effective date of the
amendment to notify Bank of America in writing that the amendment is not accepted. Any such notice of non -acceptance shall be deemed to be a notice
of termination under Section 19 of this Agreement. Failure of Company to provide a notice of non -acceptance within thirty (30) days after the effective
Cpl_Capure_rurtbriK_Cad_Apeamd 1r11A4 FSW Rey 3/02 3
1 7
date of an amendment will mean that Company hasJepted the amendment. Unless otherwise stated, anj .iendment will apply to an Account's unpaid
balance and to new activity on the Account.
is. MERCHANT/SUPPLIER CLAIMS AND DISPUTES.
A. Bank of America will have no liability, and Company and each Participant and Cardholder will hold Bank of America harmless, for all
"ransactions and for use of the Account. Company will make a good -faith effort to resolve with a merchant or supplier any claim or dispute arising from
fransaction and waives any claim against Bank of America for any merchant's or supplier's refusal to honor any Device.
B. In a dispute with a merchant or supplier, the rights of the Company, any Participant and each Cardholder against the merchant or supplier will
become the rights of Bank of America, and Company and Participant will assign (and require the affected Cardholder to assign) to Bank of America each
of their rights to assert a billing error against the merchant or supplier. Company and the Participant will, and will require the Cardholder to, do
whatever is necessary to enable Bank of America to exercise those rights. Bank of America may reverse from the Account any credits relating to the
dispute.
16. FOREIGN TRANSACTIONS. MasterCard or Visa, as applicable, will convert to U.S. dollars any Transaction made in a currency other than U.S.
dollars in accordance with the card association's applicable rules. The conversion rate on the conversion date may differ from the conversion rate on the
Transaction date. Currently, MasterCard/Visa uses a currency -conversion rate of either a wholesale market rate or a government -mandated rate,
increased by an adjustment factor determined by Bank of America and Visa or MasterCard. In each case, Visa uses the rate in effect one day before the
conversion date and MasterCard uses a rate for the processing cycle. The adjustment factor, which is subject to change without notice, is currently 1% of
the U.S. dollar amount, of which Bank of America receives 0% and Visa or MasterCard receives the remainder.
17. REPRESENTATIONS AND WARRANTIES.
A. Company and each Participant, as applicable, represents and warrants to Bank of America that:
1. In each state in which it conducts its business, it is properly licensed, in good standing, and, where required, in compliance with fictitious
name statutes.
2. All financial and other information that it has supplied or will supply to Bank of America, including without limitation, all information on its
application for the Account, is (a) accurate; (b) sufficiently complete to give Bank of America accurate knowledge of its and any Guarantor's financial
condition; (c) in compliance with all laws and regulations that apply.
3. There is no lawsuit, tax claim or other dispute pending or threatened against it which, if lost, would impair Company's financial condition
or ability to repay Bank of America under this Agreement, except as has been already disclosed in writing to Bank of America
B. Bank of America represents and warrants to Company and each Participant that Bank of America is a national banking association with its
principal office in Phoenix, Arizona.
C. Each party to this Agreement (Company, each Participant and Bank of America) represents and warrants that:
1. There is no event which constitutes, or with notice or lapse of time or both would constitute, a default on its part under this Agreement.
2. Each person signing this Agreement below on its behalf presently hold the title set next to his/her name and is duly authorized by it to bind
party to the terms and conditions of this Agreement.
18. PERIODIC REVIEW OF COMPANY.
A. During the term of this Agreement, when Bank of America from time to time requests information from Company or a Participant for the
purpose of reviewing Company's or Participant's ability to perform its obligations under this Agreement, Company will furnish the information
promptly. Bank of America and its affiliates and processing agents may exchange information about Company and Participants as that information
pertains to the rights and obligations in this Agreement.
B. Company will notify Bank of America in writing immediately of any change in the business name, the principal officers like the Chief
Executive Officer and Chief Financial Officer, the mailing address or the phone number of Company or a Participant. Company will also notify Bank of
America of any change of mailing address or phone number of any of its Cardholders.
19. TERMINATION. Either party may terminate this Agreement with or without cause upon sixty (60) daysprior written notice to the other party.
20. EVENTS OF DEFAULT
The following are events of default hereunder: (a) the failure to pay or perform any obligation, liability or indebtedness of Company, a Participant or a
Guarantor (each, an "Obligor") to Bank of America, or to any affiliate or subsidiary of Bank of America Corporation, whether under this Agreement or
any other agreement, as and when due (whether upon demand, at maturity or by acceleration); (b) the failure to pay or perform any other obligation,
liability or indebtedness of any Obligor to any other party; (c) the death of any Obligor (if an individual); (d) the resignation or withdrawal of any partner
or a material owner of any Obligor as determined by Bank of America in its sole discretion; (e) the commencement of a proceeding against any Obligor
for dissolution or liquidation, the voluntary or involuntary termination or dissolution of any Obligor or the merger or consolidation of any Obligor with
or into another entity; (f) the insolvency of, the business failure of, the appointment of a custodian, trustee, liquidator or receiver for or for any of the
property of, the assignment for the benefitof creditors by, or the filing of a petition under bankruptcy, insolvency or debtor's relief law or the filing of a
petition for any adjustment of indebtedness, composition or extension by or against any Obligor; (g) the determination by Bank of America that any
representation or warranty made to Bank of America or to any affiliate or subsidiary of Bank of America Corporation by any Obligor in any agreement or
otherwise is or was, when it was made, untrue or materially misleading; (h) the failure of any Obligor to timely deliver such financial statements,
including tax returns, other statements of condition or other information, as Bank of America shall request from time to time; (i) the entry of a judgment
against any Obligor which Bank of America deems to be of a material nature, in Bank of America's sole discretion; (j) the seizure or forfeiture of, or the
issuance of any writ of possession, garnishment or attachment, or any turnover order for any property of any Obligor; (k) the determination by Bank of
America that it is insecure for any reason; (I) the determination by Bank of America that a material adverse change has occurred in the financial condition
'ay Obligor; (m) the determination by Bank of America that any Obligor fails to meet the credit criteria initially used by Bank of America to approve
.gor; or (n) the failure of any Obligor to comply with any law or regulation controlling its operation.
21. REMEDIES UPON DEFAULT. Whenever there is a default under this Agreement, (a) the entire balance outstanding on all Accounts and all
other obligations of any Obligor to Bank of America (however acquired or evidenced) shall, at the option of Bank of America, become immediately due
and payable; (b) any obligation of Bank of America to permit further Transactions under this Agreement shall immediately cease and terminate; and/or
Cpl_Capane PuchaigC:d_Apa+mi_2$IN4 Fmd Rev 3V2 4
(c) this Agreement or any Account may be terminal. ,y Bank of America. The foregoing remedies are it( _Aition to any other rights of Bank of
America under this Agreement.
22. EFFECT OF TERMINATION. Upon termination of this Agreement, Company will be responsible for promptly destroying all Devices.
Termination will not affect Company's liability for any charges or other obligations under this Agreement. After termination, this Agreement (except the
+lity to use the Account for additional Transactions) will remain in force until all Transactions and Company's other obligations under this Agreement
. paid and satisfied in full. Further, Company shall ensure that no new Transactions are made on the Account. However, if any Transactions are made
after termination, Company will continue to be liable until they are paid in full.
23. GOVERNING LAW. This Agreement is made in Arizona. This Agreement and the Account, as well as Bank of America's rights and duties
regarding this Agreement and the Account, will be governed by the laws respecting national banking associations and, to the extent not so covered, by
the laws of the State of Arizona, regardless of where Company resides or where a Cardholder uses the Account at any time. Company will submit to the
personal jurisdiction of any state or federal court or of Judicial Arbitration and Mediation Service ("JAMS") located in the State of Arizona.
24. ARBITRATION.
A. This paragraph concerns the resolution of any controversies or claims between the parties, whether arising in contract, tort or by statute,
including but not limited to controversies or claims that arise out of or relate to: (i) this Agreement (including any amendments or modifications); or (ii)
any document related to this agreement; (collectively a "Claim").
B. At the request of any party to this agreement, any Claim shall be resolved by binding arbitration in accordance with the Federal Arbitration Act
(Title 9, U. S. Code) (the "Act"). The Act will apply even though this agreement provides that it is governed by the law of a specified state.
C. Arbitration proceedings will be determined in accordance with the Act, the applicable rules and procedures for the arbitration of disputes of
JAMS or any successor thereof, and the terms of this paragraph. In the event of any inconsistency, the terms of this paragraph shall control.
D. The arbitration shall be administered by JAMS and conducted in the state specified in the governing law section of this agreement. All Claims
shall be determined by one arbitrator, however, if Claims exceed $5,000,000, upon the request of any party, the Claims shall be decided by three
arbitrators. All arbitration hearings shall commence within 90 days of the demand for arbitration and close within 90 days of commencement and the
award of the arbitrator(s) shall be issued within 30 days of the close of the hearing. However, the arbitrator(s), upon a showing of good cause, may
extend the commencement of the hearing for up to an additional 60 days. The arbitrator(s) shall provide a concise written statement of reasons for the
award. The arbitration award may be submitted to any court having jurisdiction to be confirmed and enforced.
E. The arbitrator(s) will have the authority to decide whether any Claim is barred by the statute of limitations and, if so, to dismiss the arbitration
on that basis. For purposes of the application of the statute of limitations, the service on JAMS under applicable JAMS rules of a notice of Claim is the
equivalent of the filing of a lawsuit. Any dispute concerning this arbitration provision or whether a Claim is arbitrable shall be determined by the
arbitrator(s). The arbitrators) shall have the power to award legal fees pursuant to the terms of this agreement.
. F. This paragraph does not limit the right of any party to: (i) exercise self-help remedies, such as but not limited to, setoff; (ii) initiate judicial or
..,mjudicial foreclosure against any real or personal property collateral; (iii) exercise any judicial or power of sale rights, or (iv) act in a court of law to
obtain an interim remedy, such as but not limited to, injunctive relief, writ of possession or appointment of a receiver, or additional or supplementary
remedies.
G. The filing of a court action is not intended to constitute a waiver of the right of any party, including the suing party, thereafter to require
submittal of the Claim to arbitration.
25. COSTS AND ATTORNEY FEES. If either party incurs expenses related to the enforcement of, or takes collection action under, this Agreement,
the prevailing party is entitled to recover from the other party costs and reasonable attorney fees.
26. TELEPHONE MONITORING. Bank of America may listen to and/or record telephone calls between a Bank of America employee and any
person acting on Company's or a Participant's behalf for the purpose of monitoring and improving the quality and effectiveness of Bank of America's
communication.
27. SUCCESSORS AND ASSIGNS. This Agreement and all terms and conditions hereof, are not assignable or transferable by Company or any
Participant without Bank of America's prior written consent. All the terms and provisions of this Agreement will inure to the benefit of and be binding
upon each party and its successors and permitted assigns.
2S. NOTICES. Any notice required or permitted under this Agreement shall be effective only if it is in writing and (i) personally delivered, (ii) sent by
U.S. mail, postage prepaid, (iii) sent by a nationally recognized overnight delivery service, with delivery confirmed, (iv) telecopied, if confirmed with an
error -free transmission report, or (v) c -mailed to such a -mail address as shall have been furnished to the other party, with delivery confirmed, addressed
as set forth below. Such notices shall be deemed to have been duly given either five (5) business days after the date of mailing by U.S. mail as described
above or if otherwise sent, on the business day of receipt. Notices delivered after 5:00 p.m. shall be considered received on the next business day. A
party may alter the address or telecopy number to which notices are to be sent by giving notice of such change in conformity with the provisions of this
Section 28.
CO t _Carpo.Me_t'ubritCid_Apm.o+_211 N4 Fr Rev 102
Notices to Bank of America must be sent to:
Notices to Company must £ It to:
A. (for U.S. Mail)
Bank of America
P.O. Box 2463
Spokane, WA 99210-2463
(for overnight delivery service)
Bank of America
Commercial Card
Floor 2
1616 South Rustle Street
Spokane, WA 99224
OR:
B. Bank of America's Large Corporate and Commercial
Card Services representative for Company's program
at the address designated during implementation of
Company's program.
C. WITH A COPY to the following address if the notice relates to a Claim
Counsel for Commercial Card Services
Bank of America Legal Department
101 South Tryon Street
NCI -002-29-01
Charlotte, NC 28255
A. City of Fayetteville
Mayor Dan Coody
113 W Mountain
Fayetteville, AR 72701
Telephone: 479/575-8289
e-mail: dcoody@ci.fayetteville.ar.us
29. SEVERABILITY. If any provision of this Agreement is held to be invalid, void or unenforceable, all other provisions in this Agreement will
remain valid and enforceable.
LIMITATION OF LIABILITY. BANK OF AMERICA SHALL NOT BE LIABLE TO COMPANY, ANY PARTICIPANT OR CARDHOLDER,
2 ANY ACTION TAKEN OR OMITTED TO BE TAKEN IN CONNECTION WITH THIS AGREEMENT EXCEPT FOR DIRECT DAMAGES
ARISING FROM BANK OF AMERICA'S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT. IN NO EVENT SHALL BANK OF
AMERICA BE LIABLE TO COMPANY, ANY PARTICIPANT OR CARDHOLDER, FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL OR
PUNITIVE DAMAGES OR LOST PROFITS OR LOST DATA.
31. WARRANTY DISCLAIMER. ALL SERVICES, EQUIPMENT, SOFTWARE AND OTHER PRODUCTS FURNISHED BY BANK OF
AMERICA TO COMPANY OR A PARTICIPANT ARE PROVIDED ON AN "AS IS,"AS AVAILABLE" BASIS AND BANK OF AMERICA
EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A
PARTICULAR PURPOSE.
32. ONE AGREEMENT. This Agreement and any other agreements required by this Agreement, collectively. (a) represent the sum of the
understandings and agreements between Bank of America and Company concerning the subject matter of this Agreement; (b) replace any prior oral or
written agreements between Bank of America and Company concerning this Agreement, and (c) are intended by Bank of America, Company and each
Participant as the final, complete and exclusive statement of the agreement between/among them. No failure on the part of Bank of America to exercise,
and no delay in exercising any right under this Agreement, will operate as a waiver of that right. Unless other provisions in this Agreement expressly
provide otherwise, the terns of this Agreement will prevail if there is a conflict between this Agreement and any other agreements required by this
Agreement.
IN WITNESS WHEREOF, the parties hereby execute this Agreement as of the Effective Date shown below.
BANx on AMeatcA, N . (US CITY OF FAYETTE LE
Signature: Signature:
Name: / PAuKJJ. BINDER Name: Dan Coody
Title: S VP Title: Mayor
9 /9hb3 Date: 9/3/03
Telephone Number. 479/575-8289
EFFECTIVE DATE:
Cpl_Captrc_P di Ctd_Apcmm_21I1N- FmS Rcv 3,02
�0on' COV `I
SCHEDULE A
TO
BANK OF AMERICA PURCHASING CARD AGREEMENT
GENERAL PRODUCT FEE SCHEDULE
Payment Method and applicable fee:
No Fee
Annual Card Fee (Per Card):
$0
Late Fee: Assessed if full payment is not received by Payment Due Date.
Central Bill Accounts: Minimum $250.00, Maximum $3,500.00
Individual Bill Accounts:
2.5% of the balance due
Not Applicable
Periodic Finance Charge:
Prime + 5%
Cash Advance Fee: Minimum $5.00, no maximum
2.5% of Transaction Amount
Overlimit Fee:
Central Bill Accounts: Assessed when Aggregate Charge Limit is exceeded.
Individual Bill Accounts; Assessed when any Card Limit is exceeded.
$250 per occurrence
Not Applicable
Returned Payment Fee:
$29.00 per occurrence
Copy Fee:
$3.00 per copy
Logo Fee:
Waived
Unique Card Design Fee:
As quoted
9k.
SECTION OF SETTLEMENT PERIOD C
Indicate the Settlement Period or number of days after the statement closing date within d days
which payment is due.
WAIVER PROGRAM: Depending on whether the Account is a Visa account or a MasterCard account, the Account will be subject to either the Visa
Liability Waiver Program or the MasterCoverage® Liability Protection Program This coverage is designed to protect financial institutions and
companies from employee misuse of the Account resulting in unauthorized Transactions. Bank of America will waive Company's liability for waivable
charges up to the limit of coverage as provided in the liability waiver program ("Waiver Program") upon notice by the Waiver Program underwriters that
the Transaction at issue qualifies as a waivable charge. This waiver will be according to the terra and subject to the exclusions of the Waiver Program as
established from time to time by the Waiver Program Underwriters, including without limitation, the condition that Company meets all of its obligations
under the Waiver Program which may change from time to time. Current terra of the Waiver Program as set forth in the brochure, which Bank of
America will provide to Company are incorporated in this Agreement by reference. The Waiver Program may be terminated by Bank of America or the
Waiver Program underwriters, effective immediately upon notice to Company.
UP TO $500,000 TRAVEL ACCIDENT INSURANCE (NOT AVAILABLE FOR CORPORATE FLEET CARDS): This coverage will offer up to
$500,000 in automatic common carrier travel, accidental death and dismemberment insurance when employees charge the entire cost of the passenger
fare for land, sea, or air public transportation on their Cards. A disclosure, which outlines the program details will be provided to Company and
Cardholders.
soa k A Reviaa 03 3936]3
0 100,000
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I. Program Overview
A company ("Company") which has established a Visa Commercial or Business credit card account ("Account") with a Visa Commercial and Business cards issuing
Member ('Financial Institution"I may request that the Financial Institution waive the Company's liability for certain charges in accordance with the Visa Commercial
and Business Cards Liability Waiver Program ('Program'). Visa has arranged insurance coverage to provide payment to the Financial Institution for covered losses
and will administer the Program.
The Financial Institution may waive the Company's liability for waivable charges up to $100,000 per Visa Commercial or Business card cardholder and be
reimbursed by the Program Underwriter ('Program Underwriter') provided both the Financial Institution and the Company have satisfied all Program obligations.
II. Definitions (-.-.k cr^� It
1 Financi�lFlnnstituti�oln' shallmean the Viss 1MMembe{ phio(i issues Visa Commercial and Business card accounts to the Company for use by designated employees.
L
2 "Company" shall mean a dorporaatim parthershill,'sole ppproprietorship, or any other entity which has signed a Visa Commercial and/or Business card account
agreement with a Financial Institution and subsequently issues Visa Commercial and/or Business card accounts for use by persons designated by the Company.
3 "Eligible Cardholder' means a person designated by the Company who is authorized by the Company to use the Visa Commercial or Business card account for
Company business purposes only.
4 "Charges' shall mean all amounts, including cash disbursements, charged to the Company's Visa Commercial or Business card account with the Financial
Institution.
5 Affidavit of Waiver' shall mean a written request or claim form sent from the Company requesting the Financial Institution to waive the Company's charges in
accordance with the terms and conditions of this Program.
6 "Billed" or'Unbilled" with respect to any Charge shall be based upon the date of the Financial Institution's statement.
7 Notification of Termination" of the Cardholder's employment shall mean the date the Cardholder gives or receives oral or written notice of immediate or pending
termination, or the date the Cardholder leaves the Company's service, whichever is earlier.
8 Waivable Charges" shall mean Charges incurred by a Cardholder, or other authorized person which:
a) do not benefit the Company directly or indirectly, or in cases where the Financial Institution bills the Cardholder, benefit the Company directly or indirectly,
and the Company has reimbursed the Cardholder but the Cardholder has not paid the Financial Institution; and
b) Ii) are Billed within seventy five (75) days preceding Notification of Termination, or
(ii) are incurred but Unbilled as of Notification of Termination, or
(iii) are incurred up to fourteen (14) days after Notification of Termination; provided, however, that the Financial Institution has received a
request to cancel the Account within two (2) business days of Notification of Termination, There will be no coverage after Notification
of Termination, as defined, unless notice to cancel the Account is received by the Financial Institution within two (2) business days; and
c) are the responsibility of the Company and/or Cardholder for payment to the Financial Institution.
III. Program Exclusions
The following are not Waivable Charges and are not covered by the policy:
1 Charges made by partners, owners. or principle shareholders who own more than five percent (5%) of the Company's outstanding shares, elected directors, or
persons who are not employees of the Company. Note that in cases where the company is fully liable for payment for all charges to the financial institution.
It contracts of the company will be considered to be eligible cardholders.
2 Interest or fees imposed by the Financial Institution on outstanding unpaid charges.
3 In cases where the Financial Institution invoices the Cardholder, any amount on a check submitted by a Cardholder which is not paid by the Cardholder's
drawee financial institution as not sufficient funds or due to a closed account, if the Cardholder has, within the last (12) months, submitted any other check to
the Financial Institution which was not paid in full by the Cardholder's drawee financial institution as not sufficient funds or due to a closed account.
4 Charges incurred to purchase goods or services for the Company or for the persons other than the Cardholder pursuant to the instructions of the Company, in
accordance with company policy, if those goods or services are of the type which are regularly purchased by or for the Company. However, theses charges would
be Waivable in cases where the Financial Institution bills the Cardholder, and the Company has reimbursed the Cardholder, but the Cardholder has not paid the
Financial Institution.
5 Charges incurred by the Cardholder after Notification of Termination unless the Financial Institution receives a request from the Company to cancel the Account
within two (2) business days of Notification of Termination. If cancellation of the Account is received by the Financial Institution within two (2) business days,
then coverage will be afforded fourteen (14) days from Notification of Termination, but not beyond.
6 Charges incurred by the Cardholder more than fourteen (14) days after Notification of Termination or billed earlier than seventy five (75) days prior to
Notification of Termination.
7 Charges resulting from either a lost or sloLgVisa Commercial or Business card or bankruptcy/insolvency of the Company. ,
8 Cash advances, after Notification of Termination, shall be limited to $300 per day, of a maximum of $1.000, whichever is less. U 0r
9 Charges incurred by a Cardholder after discovery by the Company of any fraudulent or dishonest act on the part of the Cardholder. 1 ,
IV. Obligations of the Company
The Company may request that the Financial Institution waive the Company's liability for Waivable Charges only if the Company meets all of the following
requirements:
1 The Cardholder's employment is terminated, voluntarily or involuntarily.
2 The Company has one (1) or more Accounts in good standing.
3 The Company must attempt to retrieve the Visa Commercial or Business card from the Employee.
4 The Company must request that the Financial Institution cancel the Account within two (2) business days of Notification of Termination, as defined. Failure to
notify within two (2) business days will exclude coverage for any Charges incurred after Notification of Termination.
5 The Company must deliver to the Cardholder, or send by first-class mail or fax, a written notice stating that the Account has been canceled, that the Cardholder
should immediately discontinue all uses of the Account, that the Cardholder must immediately pay any outstanding amounts owed to the Financial Institution,
and that the Cardholder must immediately return the Visa Commercial or Business card to the Company.
6 The Company must send a completed and signed Visa Affidavit of Waiver claim form with all required documentation to the Financial Institution within ninety
(90) days of Notification of Termination. All claim documents must be filed with the Program Underwriter within one hundred eighty (180) days from Notification
of Termination.
7 The Company shall promptly give written notice to the Financial Institution in cases where the Financial Institution invoices the Cardholder, if the Company
knows or should know that a Cardholder is receiving reimbursement for Charges but is not paying the Financial Institution for those Charges.
8 The Company will remit all such amounts to the Financial Institution if the Company recovers any amounts for Waived Charges from any source after the
Company has filed a Visa Affidavit of Waiver claim form with the Financial Institution. The Company agrees to assign any rights it may have to collect such
amounts from the Cardholder to the Program Underwriter. However, the Company will not be required to pay the Financial Institution any amount that exceeds
the loss sustained by the Financial Institution.
9 Once a claim has been paid for a given person, no future claims will be considered.
V. Other Insurance
This program does not cover any loss which is insured by or would for the existence of this policy, be insured by any other existing policy or policies except in
respect of any excess (not exceeding the limits of the policy) beyond the amount which would have been payable under such other policy or policies including any
deductible applicable thereunder had the Program not been in effect.
W. Obligations of the Financial Institution
In order to receive insurance reimbursements from the Program Underwriter, the Financial Institution must:
1 Enforce all of the Company's obligations under its Visa Commercial and Business card accounts agreements, and use reasonable efforts to enforce all of the
Company's obligations set forth under Section IV, Obligations of the Company.
2 Provide the Company with a Visa Affidavit of Waiver claim form and a sample Employee Account Cancellation Notification Letter and Account
Cancellation Request.
3 Provide the Company with copies or a description of the Waivable Charges billed during the waiver period.
4 Make diligent efforts in accordance with its usual credit and collection practices to collect the Charges from the Cardholder or other responsible party and have
failed to obtain full payment for said Charges within sixty (60) days from the Notification of Termination.
5 Assign any uncollected Charges to a collection agency for collection, with the net proceeds (up to $100,000) to be paid to the Program Underwriter.
6 File a Visa Affidavit of Waiver claim form with the Program Underwriter within one hundred eighty (180) days of Notification of Termination and no earlier than
sixty (60) days after Notification of Termination and provide the Program Underwriter with the following documentation:
a) A list of Waivable Charges and written evidence that they are Waivable Charges as defined in Section II, Definitions.
b) In cases where the Cardholder was reimbursed by the Company but failed to pay the Financial Institution. proof that the Cardholder was reimbursed by the
Company (for claims over $5,000).
c) The Company's completed Visa Affidavit of Waiver claim form and proof of the Account Cancellation Request.
d) Evidence of all action taken to collect the Charges from the Cardholder.
e) A copy of the Company agreement '
f) A copy of the Cardholder agreement.
WI. Waiver of Charges
I Upon receipt of the completed Visa Affidavit of Waiver claim form and verification that the Charges are Waivable, the Financial Institution will waive the
Company's liability for those Charges.
2 The Financial Institution will then complete the appropriate sections of the Visa Affidavit of Waiver claim form and submit it with all required documentation to
the Program Underwriter.
3 If necessary. Visa and/or its Program Underwriter may request further documentation regarding proof concerning the Charges in question.
4 Upon receipt of adequate documentation from the Financial Institution, the Program Underwriter will reimburse the Financial Institution for all Waivable Charges
up to a maximum of $100,000 for each Cardholder.
5 The Program Underwriter will remit payment to the Financial Institution within thirty (30) days of the receipt of all completed documentation.
6 Any monies the Financial Institution may receive at any time from the Cardholder or any other source in respect of Waivable Charges will be used by the
Financial Institution to reduce the Waivable Charges and/or the amount of any claim the Financial Institution files with the Program Underwriter.
@2004 Visa U.SA Inc. V13135-05-04PG0
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SCHEDULE B
TO
BANK OF AMERICA PURCHASING CARD AGREEMENT
ELECTRONIC PRODUCT FEE SCHEDULE
Desktop Software:
InfoSpan
Not Selected
SmartData
Not Selected
Mailboxes
Not Selected
Desktop Upgrades:
InfoSpan
$0.00
SmartData
$0.00
Internet Software:
'Commercial EAGLS
Waived
"EAGLS EXPRES (EAGLS Dependent)
EXPRES User Fee - First Year Only:
Not Selected
Minimum $4,500, Maximum $330,000.00
EXPRES Annual User Fee — All Subsequent Years:
Not Selected
Minimum $750, Maximum $40,000.00
Mailbox (EAGLS)
I Mailbox - $25 per month
Standard Electronic File Delivery Options:
EDI 811
Not Selected
Statement Billing File
Not Selected
File Express (MasterCard Only)
Standard Reports:
All Electronic Products (Desktop & Internet)
$0
Custom Reports:
Development
S 150 per hour
Maintenance
S 150 per hour
Custom Interface:
Interface warranty period of I year
Development
$ 150 per hour
Maintenance
$ 150 per hour
Software Training:
I Phone Training Session per License
$0
Training sessions on -site
S1,500 per session
'For Company and Participants only one license fee of $5500 applies.
See Training section for fees on additional on -site
training.
•' Bank will not provide bar code scanners for Expres clients, but will
provide specifications to allow customers to purchase
their own. Specifications are on CCS intranet web -site under the hardwareJsoftware requirement section.
SdW&k_a aavbd2 Ol ]93676
ADDENDUM TO BANK OF AMERICA
CORPORATE PURCHASING CARD AGREEMENT
THIS ADDENDUM (the Addendum") is dated September 3, 2003 by and between City of
Fayetteville ("Company") and Bank of America, N.A. (USA) ("Bank of America") and amends
the Bank of America Corporate Purchasing Card Agreement between the parties dated
September 3, 2003 (the "Agreement").
WHEREAS, the parties desire to add to and modify certain terms of the Agreement;
NOW, THEREFORE, for valuable consideration, the parties hereby agree as follows:
1. DEFINITIONS
Terms capitalized herein and not otherwise defined shall be given the meaning ascribed to
them in the Agreement.
2. AMENDMENTS
GENERAL. All references to "Company" are revised to "City of Fayetteville".
Section 1. DEFINITIONS. As
paragraph E, of the Agreement is
E. "Card Administrator" means
Participant, as applicable, to
communicate with Bank of
Account.
Company does not desire Convenience Checks, Section 1,
deleted in its entirety and replaced by the following:
an individual or individuals authorized by Company or a
request Bank of America to add or delete Cards and to
America and take other action needed to maintain the
Section 1.
DEFINITIONS. As
Company
does not desire Convenience Checks, Section 1,
paragraph
G, of the Agreement is
deleted in
its entirety and replaced by the following:
G. "Cardless Account, " also called a "Control Account," means an Account for which Bank
of America assigns only an Account number, but provides no Card.
Section
1. DEFINITIONS.
As Company does not desire
Cash
Advances or Convenience
Checks,
Section 1, paragraph
H, of the Agreement is deleted
in its
entirety.
Section 1. DEFINITIONS. As Company does not desire Convenience Checks, Section 1,
paragraph I, of the Agreement is deleted in its entirety.
415791 -Addendum to BA Corporate Card Agreements Page I of 4
Section 1. DEFINITIONS. As Company does not desire Convenience Checks, Section 1,
paragraph J, of the Agreement is deleted in its entirety and replaced by the following:
J. "Device" means a device such as a Card or Account number, which Bank of America
provides under this Agreement to use to make Transactions or other charges on the
Account.
Section 1. DEFINITIONS. As Company does not desire Cash Advances, Section 1,
paragraph O, of the Agreement is deleted in its entirety and replaced by the following:
O. "Transaction" means a purchase or reservation of goods or services made or facilitated by
use of a Device or the Account.
Section 3. USE OF ACCOUNT AND DEVICES. As Company does not desire Cash
Advances, Section 3, paragraph C, clause 1, of the Agreement is deleted in its entirety and
replaced by the following:
A Cardholder using a Card for a Transaction may sign a sales draft which the merchant's
financial institution processes. However, failure to sign a sales draft or receive a sales
receipt will not relieve Company of its obligations under this Agreement. Company
should retain or should direct each Cardholder to retain each sales draft as a record of the
Transaction.
Section 3. USE OF ACCOUNT AND DEVICES. As Company does not desire
Convenience Checks, Section 3, paragraph C, clause 3, of the Agreement is deleted in its
entirety and replaced by the following:
3. Company and each Cardholder will check to see that the information embossed on a new
Card and sent to Company or Cardholder is correct. If there is an error, Company will
notify Bank of America immediately.
Section 3.
USE OF ACCOUNT AND
DEVICES. As Company
does not desire
Convenience
Checks, Section 3, paragraph
D,
of the Agreement is deleted
in
its entirety.
Section 3. USE OF ACCOUNT AND DEVICES. As Company does not desire
Convenience Checks, Section 3, paragraph F, of the Agreement is deleted in its entirety and
replaced by the following:
F. If Company
or Participant
desires to terminate the
Account or Card use by a Cardholder,
Company or
Participant, as applicable, will
notify
Bank of America and will destroy the
415791 -Addendum to BA Corporate Card Agreements Page 2 of 4
Devices issued or provided to that Cardholder. Company may exclude a Participant from
the Account by giving Bank of America written notice, and Bank of America will have a
reasonable period of time to act on any such notice. If this Agreement terminates,
Company will be responsible for promptly destroying all Devices for the Account.
Section 5. COMPANY LIABILITY; ACCEPTANCE OF AGREEMENT. Section 5,
paragraph D, of the Agreement is deleted in its entirety and replaced by the following:
To the extent permitted by law, the City shall indemnify and defend Bank of America against
any and all claims, actions, losses, suits, and demands for damages or costs and expenses
(including attorney fees) related to this Agreement. This indemnification does not waive or
reduce the City's statutory immunity as to any third party claimants nor provide any third
party beneficiary rights to any claimant or other person or entity. This indemnification shall
apply to all usage of a Cardless Account or Account established in the name of "Authorized
Representative," a department name or other such designation that is not an actual individual
regardless of any restriction on Company's liability contained in this Agreement.
Section 9. LOST OR STOLEN CARDS. Section 9, paragraph B, of the Agreement is
deleted in its entirety and replaced by the following:
B. If a Device such as a Card or Account Number is lost or stolen, or if there is possible
Unauthorized Use, Company must require each Participant and Cardholder to notify
Bank of America as soon as practically possible within the first 24 hours following
discovery of the loss or theft or possible Unauthorized Use by phoning Bank of America
at the phone number provided for such notice on the Billing Statement, with written
confirmation as requested in connection with Bank of America's investigation. If (i)
notice as provided in this Section is given within the first 24 hours; and (ii) Company
assists Bank of America in investigating facts and circumstances relating to the loss or
theft or possible Unauthorized Use of any Device, including without limitation, obtaining
an affidavit or similar written, signed statement from the Cardholder, then Company or
Participant, as applicable, will not be liable for Transactions resulting from Unauthorized
Use.
k t74it11tM(* II Xl
All of the terms of the Agreement not expressly modified herein shall continue in full force
and effect and are hereby ratified by the parties hereto.
415791 -Addendum to BA Corporate Card Agreements Page 3 of 4
IN WITNESS WHEREOF, the parties have executed this ADDENDUM as of the date shown
above.
CITY OF FAYETTEVILLE
BANK OF AMERICA,
N.A.
(USA)
By:
By:
Print name: Dan Coody
Print name:�L
�•
p
O �'Y �EQ
Title: Mayor
Title: S Vi
415791 -Addendum to BA Corporate Card Ageements Page 4 of 4
[(i11.06J Clarice Pearman - Bank of America Page 1
From: Qarice Pearman
To: Vice, Peggy
Date: 11.21.06 5:41 PM
Subject: Bank of America
Peg,
I put in interoffice mail the agreement for Bank of America. Please be sure that I get a signed agreement after bank signs.
Thanks.
Clarice
(12.11.06 Clarice Pearman - Bank of America Page 1
From: Clarice Pearman
To: Vice, Peggy
Date: 12.11.06 2:33 PM
Subject: Bank of America
Attachments: 11.21.06 Bank of America Addendum.pdf
CC: Audit
Peggy,
Attached is a copy of the Bank of America Addendum regarding the rebate and schedule. If anything else is needed please
let me know. Have a good day.
Thanks.
Clarice
Clarice Buffalohead-Pearman, CMC
City Clerk/Treasurer Division
113 West Mountain
Fayetteville, AR 72701
479-575-8309
cpearman@ci.fayettevllle.ar.us
Andrea Foren
Submitted By
Bank of America — Addendum III w/
Mid America
City of Fayetteville Staff Review Form
2019-0285
Legistar File ID
N/A
City Council Meeting Date - Agenda Item Only
N/A for Non -Agenda Item
5/17/2019 PURCHASING (160)
Submitted Date Division / Department
Action Recommendation:
Purchasing requests the Mayor's signature of Addendum III, Exhibit I to the Mid America New Standard
Transactions Rebate Multiplier Table, Commencing March 01, 2018, to the Bank of America Corporate Purchasing
Card Agreement to increase the City's basis points for rebate calculation.
Various
Account Number
N/A
Project Number
Budget Impact: '
Various
Fund
N/A
Project Title
Budgeted Item? NA Current Budget $ -
Funds Obligated $ -
Current Balance $
Does item have a cost? No Item Cost
Budget Adjustment Attached? No Budget Adjustment
Remaining Budget 1 $ -
Y20180321
Purchase Order Number: N/A Previous Ordinance or Resolution # '133-03.
Change Order Number:
Original Contract Number:
Comments:
N/A
N/A
Approval Date:
•
,441111 CITY OF
IplIP.111 FAYETTEVILLE STAFF MEMOlir
ARKANSAS
TO: Mayor Lioneld Jordan
THRU: Paul A. Becker, Chief Financial Officer
FROM: Andrea Foren, Purchasing Manager
DATE: Friday, May 17, 2019
SUBJECT: Bank of America —Addendum III w/ Mid America Exhibit 1
RECOMMENDATION:
Purchasing requests the Mayor's signature of Addendum III, Exhibit I to the Mid America New
Standard Transactions Rebate Multiplier Table, Commencing March 01, 2018, to the Bank of
America Corporate Purchasing Card Agreement to increase the City's basis points for rebate
calculation.
BACKGROUND:
Bank of America is the City's procurement card program provider. Bank of America has created
a Mid America rebate schedule, of which the City is eligible to participate in. Signing of this rebate
will increase the City's rebate on transactions processed through the Bank of America
Procurement Card.
DISCUSSION:
The purpose of the Mid America rebate schedule is to help eligible entities grow card programs
and earn higher rebates on annual transaction volume. To help all members maximize earning
potential,the program aggregates all member's annual spend volume and pays each entity based
on contribution.
Rebate will be dependent on the overall volume processed for the rebate period. The calculation
matrix is provided in the attached Addendum III, Exhibit 1 dated March 03, 2018.
The City's P-Card Volume is approximately$12,500,000 annually as an individual entity; however,
the City is pooled with the Mid America program the rebate is calculated off transaction volume
of approximately $130,000,000 historically.
Addendum III will increase the City's rebate. Standard Volume Grid levels will remain the same.
If the program is greater than $10MM in Standard Volume Spend, the City will increase, at
minimum, 3 additional basis points. Large ticket transactions increase at all levels by a minimum
of 4 basis points, for the program, with the City gaining 5 basis points.
Mailing Address:
113 W. Mountain Street www.fayetteville-ar.gov
Fayetteville,AR 72701
A comparison of the current rebate schedule, Addendum II, compared to the newly proposed
rebate schedule, Addendum Ill is attached.
The City's rebate from the Bank of America for the P-Card Program since January 2014 is as
follows:
Rebate Rebate Period Annual P-Card Number of Months Average Monthly
Period Start Total Rebate
End Date Transaction Volume in Rebate Period Rebate
Date
1/1/2014 12/31/2014 $ 10,722,321 12 $ 1.38,874 $ 11,57223
1/1/2015 12/31/2015 $ 12,073,509 12 $ 153,963 :$ 12,830.25
1/1/2016 2/28/2017 $ 13,908,741 14 $ 193,860 $ 1.3,847.14
3/1/2017 2/28/2018 $ 11,617,092 12 $ 152,744 :$ 12,728.70
BUDGET/STAFF IMPACT:
There is no additional cost to the City of Fayetteville. Addendum III will increase the rebate
received to the City.
Attachments:
Bank of America Grid Comparison between Addendum II and III
Bank of America—Addendum III
Referenced Exhibit 1, Mid America, New Standard Transactions Rebate, March 01, 2018
2
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ADDENDUM TO BANK OF AMERICA
CORPORATE CARD SERVICE Agreement
THIS ADDENDUM (the "Addendum") is dated March 26, 2018, by and between City of Fayetteville ("Company") and
Bank of America, N.A. ("Bank of America") and amends the Bank of America Corporate Card Service Agreement,
between the parties dated on or about December 2016, including any previous amendments (together, the
"Agreement").
WHEREAS,the parties desire to add to and modify certain terms of the Agreement;
NOW,THEREFORE,for valuable consideration,the parties hereby agree as follows:
1. DEFINITIONS
Terms capitalized herein and not otherwise defined shall be given the meaning ascribed to them in the Agreement.
2. AMENDMENTS
A new Standard Transactions Rebate Multiplier Table and Large Ticket/Partner Program Transactions Multiplier
Table dated March 1,2018 is added to and shall be applicable to the Corporate Card Service Agreement.
The definition of"Calculation Period" in the SCHEDULE OF REBATES dated on or about December 2016 is deleted in
its entirety and replaced by the following:
"Calculation Period" means, initially, the twelve (12) month period commencing March 1, 2018 and ending February
28, 2019 and thereafter, each subsequent twelve (12) month period thereafter. For the avoidance of doubt, rebate
for the period March 1, 2018 through February 28, 2019, and subsequent calculation periods, shall be calculated
based on the Standard Transactions Rebate Multiplier Table and Large Ticket/Partner Program Transactions
Multiplier Table, Exhibit 1,attached hereto.
3. RATIFICATION
All of the terms of the Agreement not expressly modified herein shall continue in full force and effect and are
hereby ratified by the parties hereto.
IN WITNESS WHEREOF,the parties have executed this ADDENDUM as of the date shown above.
City of Fayett: ille Bank of America, N.A. y
)
B . �Ar/./ i� -f--- By: C
Print name:l.r Oy / t Q1/1'1 Print name:
MTitle: Title: f/ v— /7` ��
Addendum to BA Corporate Card Service Agreement Page I of I
III
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