HomeMy WebLinkAboutLASALLE BANK - CONTRACT - CONTRACT - ORIGINAL PURCHASING CARD AGREEMENTLASALLE BANK NATIONAL ASSOCIATION
VISA PURCHASING CARD AGREEMENT
Agreement, made as of the 8th day of June , 1999, between
LaSalle Bank National Association (the "Bank") and The City of Fort Collins, Colorado, a home
rule city duly organized and existing under the laws of the State of Colorado (the "Customer").
WHEREAS, the Customer desires to purchase goods and services and has requested that
the Bank open Accounts and issue Cards to Employees (as such terms are hereinafter defined),
and provide or arrange for the provision of billing and other services as described herein; and
WHEREAS, the Bank is a member of Visa U.S.A. Inc. ("Visa") and is willing to issue
Cards to Employees, open Accounts for the Customer and provide or arrange for billing and
other services to the Customer;
Now, THEREFORE, in consideration of the premises and mutual agreements set forth
herein, the Customer and the Bank agree as follows:
SECTION 1. DEFINITIONS.
The following terms used in this Agreement shall have the following meanings:
a. "Account" means an account opened by the Customer pursuant to this
Agreement, and not associated with any Cards, which may be used by Employees when
making purchases that are to be billed to the Customer.
b. "Authorizer" means any authorization facility or processor to whom any
person, firm or corporation authorized to honor Visa cards is required to direct inquiries
as to whether or not a Purchase may be consummated.
C. "Card" means a Visa Purchasing Card issued by the Bank to an Employee
under the Program.
d. "Card Account" means the account associated with a specific Card.
e. "Card Agreement" means any agreement, including any personnel
policies or other guidelines adopted by the Customer, which governs the Employees' use
of the Cards, in such form as the Customer, in its sole discretion, may determine from
time to time. Notwithstanding the foregoing, the Card Agreement shall be consistent
with the terms of this Agreement.
by Visa and its underwriters. The current provisions of the Liability Program are described in a
brochure published by Visa, which brochure has been or will be furnished to the Customer by the
Bank. In the event that Visa modifies or suspends the Liability Program, the Bank may modify
or terminate this subsection at any time upon notice to the Customer. If the Bank is notified by
Visa of material changes to the Liability Program, then the Bank will promptly notify the
Customer thereof. If the changes to the Liability Program are not acceptable to the Customer,
then, within 30 days of its receipt of such notice, the Customer may terminate this Agreement
upon 30 days prior written notice to the Bank.
SECTION 11. PURCHASES MADE IN FOREIGN CURRENCIES.
In the event that any Purchase is made outside of the United States, charges incurred in a
foreign currency will be converted by Visa International into a U.S. dollar amount in accordance
with the procedures set forth in its Operating Regulations. The currency conversion rate
currently used to determine the transaction amount is either (i) a government mandated rate or
(ii) a wholesale market rate, in effect one day prior to the transaction processing date, increased
by 1% in each case. The currency conversion rate in effect on the transaction processing date
may differ from the rate in effect on the transaction date or statement posting date. With respect
to any transaction subject to this Section 11, the Customer represents and warrants that it is
authorized to enter into and perform such transaction under applicable State law.
SECTION 12. REPRESENTATIONS AND WARRANTIES OF THE CUSTOMER.
The Customer hereby represents and warrants to and agrees with the Bank that:
a. The Customer has the power and authority under applicable law to make
the Purchases, open the Accounts, obtain the Cards and enter into the other transactions
contemplated by this Agreement and has been duly authorized to execute and deliver this
Agreement and to carry out its obligations hereunder. Attached hereto as Exhibit F is a
full, true and correct copy of a resolution or other appropriate official action of the
Governing Body specifically authorizing the Customer to execute, deliver and perform
this Agreement. Attached hereto as Exhibit G is a full, true and correct copy of an
Incumbency Certificate relating to the authority of the officers who have executed and
delivered this Agreement on behalf of the Customer.
b. All requirements have been met and procedures have occurred in order to
ensure the enforceability of this Agreement, and the Customer has complied with such
public bidding requirements, if any, as may be applicable to the Purchases and the
transactions contemplated by this Agreement.
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C. The Customer is not subject to any legal or contractual limitation or
provision of any nature whatsoever that in any way limits, restricts or prevents the
Customer from entering into this Agreement or performing any of its obligations
hereunder, except to the extent that such performance may be limited by bankruptcy,
insolvency, reorganization or other laws affecting creditors' rights generally.
d. There is no action, suit, proceeding, inquiry or investigation, at law or in
equity, before or by any court, public board or body, known to be pending or threatened
against or affecting the Customer, nor to the best knowledge of the Customer is there any
basis therefor, wherein an unfavorable decision, ruling or finding would materially
adversely affect any Purchases or the transactions contemplated by this Agreement. All
authorizations, consents and approvals of governmental bodies or agencies required in
connection with the execution and delivery by the Customer of this Agreement or in
connection with the performance by the Customer of its obligations hereunder have been
obtained, except with respect to annual procurement, budgeting and appropriation
procedures as required by applicable law.
e. The entering into and performance of this Agreement will not violate any
judgment, order, law or regulation applicable to the Customer or result in any breach of,
or constitute a default under, or result in the creation of any lien, charge, security interest
or other encumbrance upon any assets of the Customer pursuant to any indenture,
mortgage, deed of trust, bank loan or credit agreement or other instrument to which the
Customer is a party or by which it or its assets may be bound.
f. The information submitted (electronically or otherwise) by a Purchasing
Card Administrator to the Bank relating to card set-ups, card maintenance issues (e.g.,
changing dollar limitations), notices of cancellation , establishment of billing accounts
and designation of the Purchasing Card Administrator(s) shall be true, complete and
accurate as of the date thereof and may be relied upon by the Bank as being authorized by
the Customer.
SECTION 13. REPRESENTATIONS AND WARRANTIES OF THE BANK.
The Bank represents, warrants and covenants that this Agreement has been authorized by
all necessary action and does not violate the Bank's charter or by-laws, any other agreement
binding upon the Bank or any provision of law. THE BANK MAKES NO OTHER REPRESENTATIONS
OR WARRANTIES EITHER EXPRESS OR IMPLIED OF ANY KIND WITH RESPECT TO THE PROGRAM OR
THE BANK'S PERFORMANCE OF SERVICES UNDER THIS AGREEMENT, INCLUDING, WITHOUT
LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
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SECTION 14. INDEMNIFICATION.
To the extent permitted by applicable State law and the Charter of the City of Fort
Collins, and subject to Section 9(b), the Customer will indemnify and hold harmless the Bank, its
officers, directors and employees, and Visa and its members from and against any and all claims,
demands, actions, proceedings, liabilities, losses, actual damages and expenses, including actual
and reasonable counsel fees arising directly or indirectly from (i) the Customer's breach of any of
its representations, warranties, covenants or agreements under this Agreement, or the Bank's
enforcement of any of its rights or remedies under or pursuant to this Agreement, (ii) the Bank's
compliance with or carrying out any instruction or request which identifies the Customer as
sender, if such instruction or request is accepted by the Bank in good faith, or (iii) the Bank's
actions or omissions in performing services in connection with the Program, unless such actions
or omissions are determined to result from the Bank's negligence or willful misconduct, (iv) any
incorrect classification of a merchant under Visa's Merchant Category Codes which has the
effect of allowing Card transactions that the Customer and the Bank intend to preclude, or (v) the
Bank's good faith refusal to approve any Card transactions. The provisions of this Section 14
shall survive the termination of this Agreement.
SECTION 15. LIABILITY.
The liability of the Bank to the Customer hereunder shall be limited to direct damages
arising from gross negligence or willful misconduct by the Bank. In no event shall the Bank be
liable for any indirect, consequential or special damages.
SECTION 16. IMPOSSIBILITY OF PERFORMANCE.
If the Bank or the Customer is rendered unable, wholly or in part, by force outside the
control of such party (including, but not limited to, an act of God, war, fire, terrorism, flood,
explosion, act of governmental authority, strike, civil disturbance, or breakdown of telephone,
computer or automated mailing equipment) to carry out its obligations under the Agreement, the
affected obligations of such party shall be suspended for so long as such party is unable to
perform. In addition, the Customer acknowledges and agrees that the functioning of some
Program services is dependent upon equipment, software, communication lines and Program
services provided by the Customer or third parties, and that the Bank shall have no responsibility
or liability for the performance thereof; provided, however, that the foregoing clause shall not
operate to relieve the Bank from liability for direct damages attributable to its own gross
negligence or willful misconduct (in accordance with Section 15 hereof).
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SECTION 17. ASSIGNMENT AND SUBCONTRACTS.
Neither party may assign this Agreement, transfer any right or delegate any duty or
performance hereunder without the prior written consent of the other, provided, however, the
Bank has the right to assign this Agreement, in whole or in part, and/or to delegate any rights and
obligations hereunder to an affiliate of the Bank, without the Customer's prior written consent
(however, upon any such assignment or delegation, the Customer shall have the right to
terminate this Agreement immediately upon notice to the Bank); and provided, further, the Bank
may, without the Customer's prior written consent, subcontract with other entities with respect to
the provision of services hereunder, but no such subcontracts shall relieve the Bank in whole or
in part of its obligations under this Agreement or alter the Customer's rights against the Bank
under this Agreement, however, all entities with whom the Bank subcontracts will be entitled to
rely on, and avail themselves of, the provisions of this Agreement as if they were the Bank,
including, without limitation, the limitations on liability and indemnities described in this
Agreement. This Agreement shall be binding upon and shall inure to the benefit of both parties
and, unless otherwise contemplated in this Agreement, their representatives and their respective
successors and assigns. Any attempted assignment of rights or delegation of obligations contrary
to the provisions of this Agreement shall be void.
SECTION 18. NOTICES.
Except as otherwise provided herein, any notice or other communication to be given
under this Agreement shall be in writing, delivered by hand, facsimile transmission (with
telephone confirmation by the sender confirming receipt by the recipient) or mailed postage
prepaid, addressed, as shown below the signatures of the parties, or at such other address as
either party may designate in writing to the other; other means of communication may be used if
agreed to by both parties hereto. All notices and other communications delivered by facsimile
transmission will also be delivered by hand or U.S. mail if requested by the recipient.
Notwithstanding the foregoing, either party may rely on facsimile transmissions as though they
are originals, and the recipient may rely on such facsimile transmission without confirmation by
the sender. Any notice or communication will be effective against the Customer when it has
actually received and has had a reasonable time to act on such notice, but in no event later than
the close of business on the second business day following receipt. Any notice or
communication will be effective against the Bank when it is actually received and the Bank has
had a reasonable time to act on such notice. Notwithstanding the foregoing, unless otherwise
instructed by the Customer, the Bank shall not accept facsimile instructions from the Customer.
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SECTION 19. EFFECTIVE DATE AND TERMINATION.
a. This Agreement shall be effective as of the date first above written and, unless
sooner terminated as set forth herein, shall remain in full force and effect for an initial term
which shall expire at midnight on the earlier of (i) one year following the date first written above
or (ii) the last day of the Customer's current fiscal period, and shall continue thereafter for a
maximum of four (4) successive renewal terms. Each such renewal term shall expire on the
earlier of (i) one year following the start of such renewal term or (ii) midnight on the last day of
the Customer's then current fiscal period. Upon termination of this Agreement, all Accounts,
Cards and Card Accounts will be canceled by the Bank and the Customer agrees to use
reasonable efforts to collect and destroy each Card. Also upon termination of this Agreement, all
computer software licenses granted by the Bank to the Customer for use in connection with the
Program shall automatically terminate, and the Customer shall immediately return to the Bank
the original and all copies of such software, and all other confidential Program materials,
documentation or materials provided to the Customer by the Bank.
b. Either the Customer or the Bank may terminate this Agreement upon breach by
the other party which remains uncured after thirty (30) days following written notice of
termination by the non -defaulting party, or with or without cause upon sixty (60) days' prior
written notice to the other at any time after the initial term of this Agreement. Notwithstanding
the foregoing, but subject to Section 9(b), the Bank may require immediate payment of all
amounts owing under this Agreement, terminate this Agreement or any Account or Card Account
or refuse to permit further access to any Account or Card Account if (i) the Customer fails to
make payments as required hereunder, (ii) the Customer has made any statement to the Bank
which is false or materially misleading in any respect, or any financial information submitted by
the Customer to the Bank is untrue or materially misleading in any respect or (iii) the Customer
is in default of any other obligation it may owe to the Bank or any affiliate of the Bank.
C. The Customer hereby agrees to immediately notify the Bank of any action or
proceeding which may result in the dissolution of its existence under applicable law or the
suspension or revocation of its authority to perform its obligations under this Agreement.
Notwithstanding anything in this Agreement to the contrary, if the Bank receives any such
notice, then it may terminate this Agreement effective immediately upon written notice to the
Customer.
d. Notwithstanding any other provision of this Agreement, either the Customer or
the Bank may terminate this Agreement effective upon notice in the event of the other party's
insolvency, moratorium, receivership or voluntary or involuntary bankruptcy or similar
proceeding, or a determination in good faith by one party that the financial condition of the other
party has become materially impaired.
-14-
e. The termination of this Agreement shall not terminate, affect or impair any rights
or obligations of either party with respect to any Purchases or event related to this Agreement
occurring prior to such termination.
SECTION 20. MISCELLANEOUS.
a. No duty or obligation of either party hereunder shall be deemed waived and no
breach excused unless such waiver or consent shall be in writing and signed by an authorized
representative of such party. Failure or delay on the part of such party to exercise any right,
power, privilege or remedy hereunder shall not operate as a waiver for any different or
subsequent breach.
b. In the event that any provision of this Agreement shall for any reason be held
invalid, illegal or unenforceable by a court of competent jurisdiction, the remaining provisions of
this Agreement shall remain unimpaired.
C. The Bank will notify the Customer of any changes in the features of the services
or products offered hereunder. Within 30 days of receipt of any such notice, the Customer may
cancel this Agreement upon 60 days prior written notice to the Bank.
d. Customer agrees that all payments under this Agreement shall represent a current
expense of the Customer for Purchases that the Customer is, or will be, authorized to make in
each of its fiscal periods during the term of this Agreement. In addition, nothing contained in
this Agreement shall constitute a pledge, obligation or expenditure of general tax revenues, funds
or monies of Customer except amounts appropriated for the purpose of making payments during
the current fiscal year.
e. The section titles in this Agreement are included as a matter of convenience, for
reference purposes only, and in no way define, limit, expand or describe the scope or intent of
any provision herein.
f. This Agreement constitutes the entire understanding between the parties and it
supersedes all prior agreements and negotiations. No change, addition or modification of any of
the terms and conditions herein shall be binding on either party unless in writing signed by an
authorized representative of each party hereto.
g. This Agreement shall be governed by and construed in accordance with the laws
of the State. The Bank and the Customer hereby waive, where permitted by applicable State law,
the right to a trial by jury in any action, proceeding, or counter -claim brought by either party
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against the other on any matter whatsoever arising out of or in any manner related to this
Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above
written.
LaSalle Bank National Association
By:
Nan
Title
Date: June 8. 1999
THE CITY OF FORT COLLINS, COLORADO
A Munigipal Corporation
John F.
Date:
B• dy'�
James B. O'Neill II, CPPO
Direc or of Purc asm and Risk Management
Date:
ATTEST:
-4WAL )Pk VL- 11
City Clerk
APPROVED AS TO FORM:
Assistant City Attorney
-17-
Address for Written Notices to
LaSalle Bank National Association:
LaSalle Bank National Association
c/o ABN AMRO Services Company, Inc.
200 West Monroe Street
Chicago, Illinois 60606
Attention: Purchasing Card Manager
Telecopy: (312) 904-6022
on
Address for Written Notices to the City
of Fort Collins, Colorado:
City of Fort Collins Purchasing
Post Office Box 580
Fort Collins, Colorado 80522
Attention
(who shall be named) then currently
acting as Purchasing Card Administrator
Telecopy: (970) 221-6707
LaSalle Bank N.A.
LASALLE BANKS
PRICING
(Section 4.0)
CARD/PROGRAM FEES
• Implementation fee: No Charge
• Annual card fee: No Charge
REPORTS/STATEMENTS
• Standard ten reports:
• Additional copies:
• Ad hoc reports:
• Statements:
• Additional or duplicate statement:
OTHER
• Custom Card Logo Digitization:
• ProCard PC -Based Reporting:
• Employee photo ID
REBATE SCHEDULE
SALES VOLUME
$ 0 - 2 Million
$ 2.1 - 4 Million
$ 4.1 + Million
No Charge
$10.00/report/month
Priced based on request
No Charge
$7.50/statement
No Charge
No Charge*
Priced based upon request
ANNUAL REBATE
15 basis points
20 basis points
25 basis points
Exhibit E
ANNUAL SAVINGS
$0-$3,000
$41200-$81 000
$10, 250
Note: LaSalle will waive the cost of the initial mapper installation. In addition,
LaSalle agrees to waive monthly maintenance fees and transaction charges.
Modifications requested by the City of Fort Collins to the mapper after its
installation will be made at the City's expense.
Member of the ABN AMRO Group
r
f. "Card Application" means an application to the Bank for issuance of a
Card in the form attached hereto as Exhibit A or in such other form or content as the
Bank and the Customer shall agree upon from time to time.
g. "Card Account Statement" has the meaning set forth in Section 7.
h. "Charge Limit" applies to the Accounts and Card Accounts and means the
maximum aggregate unpaid amount that may be outstanding on the Customer's Accounts
and Card Accounts at any time for all Card transactions.
i. "Employees" means the officials, officers, employees or agents of, or
other individuals designated by, the Customer to receive a Card or use an Account.
j. "Governing Body" means the council, commission, board of trustees,
board of education or other governing board, body or elected official of the Customer
under applicable State law.
k. "Legally Available Funds" means the Customer's funds that are duly
budgeted and appropriated in accordance with applicable State law and legally available
for the purpose of paying the Bank for Purchases and related charges as provided in this
Agreement.
1. "Merchant Category Code " means a code assigned in accordance with the
VisaNet Merchant Data Standards Handbook to any person, firm or corporation
authorized to accept Visa cards in order to identify the principal trade, profession or line
of business of such party.
m. "Operating Regulations" means the Operating Regulations of Visa and
the Operating Regulations of Visa International, as in effect from time to time.
n. "Payment Due Date " has the meaning set forth in Section 9.
o. "Program" means the LaSalle Visa Purchasing Card Program established
for the Customer by the Bank, pursuant to which the Bank shall issue Cards to
Employees and open Accounts for the Customer, and provide the other services more
fully described in Schedule 1 hereto.
p. "Purchase" means the use of a Card, a Card Account or an Account to
pay for goods or services.
-2-
Exhibit F
RESOLUTION 99-8
OF THE COUNCIL OF THE CITY OF FORT COLLINS
AUTHORIZING THE PURCHASING AGENT TO ENTER INTO A VISA
PURCHASING CARD AGREEMENT
WHEREAS, the City is authorized by law to purchase and acquire goods and services for the
benefit of the City and its inhabitants and to enter into contracts with respect thereto; and
WHEREAS, the City desires to purchase and acquire goods and services that are necessary
for the City to perform its governmental or proprietary functions; and
WHEREAS, in order to increase the City's ability to acquire such goods and services in an
administratively efficient and cost-effective manner, City staff has proposed that the City enter into
that certain Visa Purchasing Card Agreement with LaSalle National Bank (the "Bank'), for the
provision of purchasing cards for use by City staff in purchasing goods and services, a draft ofwhich
is on file in the Office of the City Clerk (the "Agreement"); and
WHEREAS, the Council has determined that the use of the purchasing card arrangement as
provided in the Agreement will be to the City's benefit, and will advance the efficient and effective
administration of the City's purchases of goods and services.
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT
COLLINS as follows:
Section 1. That the Director of Purchasing and Risk Management ( the "Purchasing
Agenel is hereby authorized to execute the Agreement in substantially the form on file in the Office
of the City Clerk for the provision of purchasing card services to the City by the Bank and any
related exhibits attached thereto, and to deliver the Agreement to the Bank The final form of the
Agreement shall include the following terms, together with such additional or different terms and
conditions determined by the Purchasing Agent, in consultation with the City Attorney, to be
appropriate and necessary to protect the interests of the City:
(A) The Bank shall issue Visa purchasing cards in accordance with the direction
of an authorized Purchasing Card Administrator designated by the Purchasing
Agent.
(B) No fee will be charged for the issuance of the purchasing cards, the receipt
of the standard ten reports, regular statements, card logo digitization, or
personal computer -based reporting.
(C) The City may direct the Bank to cancel any card or account at any time for
any reason whatsoever.
Exhibit F
(D) The Bank may cancel or suspend the right to use any care or account at any
time if fraud or misuse is suspected, and will notify the City of any such
cancellation or suspension.
(E) The Bank will prepare and provide for each billing cycle an individual
statement for each card account, and will provide a consolidated statement of
purchases and balance due.
(F) Any payment obligation of the City shall be payable solely from funds
appropriated for such purpose.
(G) The term of the Agreement shall be one (1) year, with four (4) successive
renewal terms.
Section 2. That the Purchasing Agent is hereby authorized to execute and deliver
amendments and modifications to the Agreement consistent with this Resolution from time to time,
and such amendments and modifications shall not require the Council's approval of the same.
Section I That the Purchasing Agent and each Purchasing Card Administrator
designated by the Purchasing Agent are hereby authorized to take such other actions as may be
appropriate or necessary to carry out or complete the transactions contemplated in the Agreement
and any amendments thereto.
Section 4. That nothing contained in this Resolution, the Agreement or any other
instrument shall be construed to cause the incurrence of a pecuniary liability or charge upon the
general credit of the City or against its taxing power, nor shall the breach of any provision of this -
Resolution, the Agreement or any other instrument or document executed in connection therewith
impose any pecuniary liability upon the City or any charge upon its general credit or against its
taking power.
Passed and adopted at a regular meeting of the City Council held this 19th day of January,
A.D.1999.
4ayir
ATTEST:
EXHIBIT G
INCUMBENCY CERTIFICATE
The undersigned, the duly authorized representative of the named Customer under that
certain Visa Purchasing Card Agreement dated as of .rune 8, 1999 (the
"Agreement"), with LaSalle Bank National Association, hereby certifies as follows in
accordance with the requirements of the Agreement. Capitalized terms used herein have the
same meaning as in the Agreement.
I hold the position noted under my signature, and I have all authority necessary to execute
and deliver this Certificate. The following officers of the Customer are duly elected or
appointed, and the signatures above the respective name and title are true and correct.
- "" M-"/- (a, �� c)
Signature Si nature
Name: John F. Fischbach
Title: City Manager
Title: Director, Purchasing and
Risk Managemer}t
IN WITNESS WHEREOF, I have executed and delivered this Certificate as of this
day of 3 v N JL- , 19—?�- _
FROVE,I C _. ..QS
Signature IV
Name: Wanda Krajicek
Title: City Clerk
90154-5
03/1'.;/2006 09:49 FAX
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ASN AMRO Servici:s Company, Inc.
14002
NO.3509 P, 1
Commercial Card Mail itent nce Form
Fax completed rorm to the C: mmer rlal Card Group, 312. 904,6626
Customer Name: �"MAT
Date: Jww —y 00
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Card Account Number. Sit:
`L/ r r a lino 0�
Cardholder Name; i TOSS GiAM�v�' Or!
OF REQUEST (ple,7se C.11cck appropriate hDX or
boxes)
❑ Purchariirg Pro gram ❑ Commercial program
❑ Address Change ❑ Account Closure
❑ Credit LJno C t• � I ❑ Change Single Transaction Limit ❑ Cardholder Namr Change
� ❑Replacement Card -Reason;
ht1 T,;_ $
Add Cardholders) - Please attag;I aprea Wheat
Name to A ear on Card 19 chareee Psb�r ma�axii� mm :
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'1�A�MST iQs .. Lc ML W-3
Department Name
s 3/A 7$g-/35211
Business Telepho444% /�q
(2-i � - 73s-as93
Business Fax
Statement Mailing Address: 09-MV ; 41�wx Z/ C,
,900 S. MHjA-Au,.N?�Y1 �
Street, Sulte4t, Floor, etc. City state ZIP + p d2 07/
Card Mailing Address (if dlf ewt than statem+:nt address);
Street, Sulted, Floor, etc, City State ZIP +4
Program Administrator Name:
Signature
Business Telephone
RANK I ISF ONLY
Busin :ss Fax
Department Name;
Farrall Adde•e•
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IF ARM-AMBO
• O/Z5/2006
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09:49 FAX
TEAMSTERS LOCAL 703
300 S. ASHLAND AVENUE
ROOM 502
CHICAGO, ILLINOIS 60607
FACSIMILE COVER PAGE
.3'4?S -0 &
DATE
NUMBER OF .PAG.S (Including Cover Page) 12
TO:
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A.TTN: - l l2� cloy- [406Z
FROM:
COMMENTS
,****t ****.********CONFIAENT1AL1TY NOTE************'***
1001
28 AM10;Q6
This messag4 is.; n end;nl�r fort a use of the individual oie�ntitto which it is Aridressed ana may
contain info= .1 Lon tIL t isn»vjlcg;d, c nfidcntial and. excmZ from di,_ _ _ys los_ure UUder Mplicable law. If the
reader of this m !. ssage s not the intended recipient, or the employee or agent responsible for delivery of the
messagc to the itende l recipient, you are hereby notified that any dissemination, distribution or copying of
this comtnunica ion is ;trictly prohibited. If you have received this communication in error, please notify
us immediately )y tele )hone at (312) 738-1350, and destroy the original message and any copies_
03/28/2006 09:49 FAX
V V L. L I. cuv7 / . 17nlrl : DIY hIYIKU
ABN AMRO Servicls Company, Inc.
009
NO, 3509 P. 1
Commercial Card Mailtttent nce Form
Fax completed Form to the G:.mmer 881 Card Group, 312. 904.6s26
Customer Name; 'I:iST Ellis L. rL 7D3
Card Account Number: i% � o9zo
Cardholder Name:1-1
a� �Z7
Date: ��'"',�
❑ Purchauing Pro rem ❑ Commercial Program
❑ Address Change ❑ Account Closure ❑ Cardholder Name Change
�KCredh Line f 0"eWt: -Tv 6 ❑ Change Single Transaction Limit 0 Replacement Card - Reason:
$ 4fjw. 00 _ $
❑ Add Cardholders) - Please attat> i spree Whet
I'ACCOUNTICARDHOLDFR INFORMATION
NametoAppquron Card t 9 oharacl er max11 num :
1PAVIR u r
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U&MST S Lor! W3
Department Name
Statement Melling Address;
(31,R-)738-135a j3t739-c9sy
Business TelephonkJ4 , J jR7 Business Fax
300 5 . /}SFft. i b, ue�2
Street, sultm Floor, etc.
Card Mailing Address (if different (hall StateML !nt address):
City
state ZlP + 4
Sheet, suite#, Floor, etc, City state ZIP-4
Program Administrator Name: Department Name: HAR 28 AM10:06
Signature
Business Telephone
RANK USE ONLY
Busin ms Fax
Emall Address
01 AHM-AMRO
/oil".
03/29/2006 14:53 FAX
m 002/002
Corporate Card Application
TO Pr COMPLETED OY CO"'PANY (Please print or type)
New Account Application
Emgoyee Name
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�- d Form Fall 36.2e0
�� ■� 28/2006 14:58 FAX
1A 0011002
To ABN-Amro
Feru 1-312-904-6626
RM
Frem: Barb Spitz
PMM 2
Dees: 03/28/06
PO Box 177
600 Dart Road D A R T
Mason, MI 48854 �N-RQY
Tel.517.676.2900 —
Fax. 517.678.3446 CORPORATION
Please put Kimberley Harris on the Dart Oil & Gas central billing.
Thank you,
Barb spitz
517-2444,604
(InCMIM covert
IMPORTANT:
The infomtadon contained in this facsimile message is inunded only for the personal and coeftdmU use ofthe designated recipient listed
above. if you we not the intended rocipiwn , or an agent responsible for delivering it to ute intended recipient please return a to us as soon
SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release ("Agreement") is entered into by and between
THE CITY OF FORT COLLINS, a Colorado municipal corporation, whose address is 300
Laporte Ave., P.O. Box 580, Fort Collins, CO 80522 ("City") and CLARK CONSTRUCTION
COMPANY, INC., a Colorado Corporation, whose address is 2956 Ginnala Dr., Loveland, CO
80538 ("Clark"), thisIS day of March, 2006.
Recitals
1. Clark, its subcontractors and suppliers performed construction work for the City in
connection with the construction of Fossil Creek Community Park (the "Work"), pursuant to
City of Fort Collins Bid # 5681, Fossil Creek Community Park (the "Contract").
2. The City has asserted that portions of the Work were or are defective, including the
acrylic surfacing on the basketball and tennis courts; concrete in the basins and runnels of a
water feature; a leak in the roof of a restroom building, and a defective backflush filter controller
for the water feature.
3. The City has previously spent $46,521 to strip the old acrylic surfacing from the
basketball and tennis courts and replace it with new surfacing, and is seeking reimbursement
from Clark for that amount. Clark denies that it is responsible for any defects in the original
basketball and tennis court surfacing.
4. Clark has made repairs to the roof leak and replaced the filter controller, and is
intending to repair or replace the water feature concrete.
5. In view of the burden, expense and uncertainties of litigation, and deeming it to be in
their respective best interests to resolve the claims and disputes between them, without any
admission as to the merits of any claims or defenses made by either party, the City and Clark
have agreed to settle amicably and resolve finally all claims between them related to the acrylic
surfacing on the tennis and basketball courts at Fossil Creek Community Park.
Terms
FOR AND IN CONSIDERATION of the compromise, full settlement and release of all
claims and disputes between the parties related to the surfacing of the tennis and basketball
courts at Fossil Creek Community Park, the parties agree as follows:
1. Payment. Clark shall pay to the City the amount of Twenty Three Thousand Two
Hundred Sixty and 50/100 Dollars ($23,260.50), representing one-half of the City's cost to
resurface the tennis and basketball courts. Payment shall be made by check payable to the order
of the City of Fort Collins. Clark shall tender payment to the City within ten (10) business days
of the execution of this Agreement.
2. Release.
(a) As consideration for the terms set out herein, the City and Clark, for
themselves and for their officers, agents, representatives, employees, successors and
assigns, to the fullest extent allowed by law, each expressly release and forever discharge
the other and the other's officers, employees, insurers, successors, agents and assigns
from any and all liability, claims, demands, actions or causes of action which the City or
Clark may have against one another as of the date of this Agreement, known or unknown,
arising out of or in any way related only to the claims asserted or that could be asserted
with regards to the acrylic surfacing applied to the tennis courts and basketball courts at
Fossil Creek Community Park.
(b) This release shall in no way waive the rights or discharge the obligations of
either party pursuant to the Contract except as relating to the acrylic surfacing of the
tennis court and basketball court and, to the extent required by its terms, the Contract
shall remain in full force and effect.
(c) Clark expressly acknowledges that the restroom roof, water feature concrete
and water feature backflush filter controller are, as of the date of this Agreement, still
covered by the warranty language of the Contract and, to the extent required by the
Contract, Clark remains responsible for any defects in such items.
3. Authority and Non -Assignment. Each of the parties expressly warrants that they have
authority to enter into this Agreement and that they have not sold, assigned, granted or
transferred to any other person or entity any claim encompassed by this Agreement or relating to
the Dispute.
4. Advice of Counsel. The parties represent that they have had the option to be
represented by legal counsel of their own choice with respect to this Agreement, and to the
extent either party has exercised that option, represent that their attorneys have fully advised
them concerning their rights and obligations with respect to any and all claims, known or
unknown, that either party may have against the other on the effective date of this Agreement.
5. Invalid Provisions. If any provision of this Agreement shall be held, declared or
pronounced void, invalid, unenforceable or inoperative for any reason by any court of competent
jurisdiction, government authority or otherwise, such holding, declaration or pronouncement
shall not affect adversely any other provisions of this Agreement, which shall otherwise remain
in full force and effect.
6. Performance and Disputes. If either party fails to perform under the terms of this
Agreement and a dispute arises related to this Agreement, the non -prevailing party in any
resulting litigation or arbitration shall pay the prevailing party's reasonable legal fees and
expenses, including attorney's fees.
7. Entire Agreement. This Agreement constitutes the complete and exclusive statement
of agreement of the parties relative to the subject matter hereof, and supersedes all previous oral
q. "Purchasing Card Administrator" means any of the individuals whom the
Customer has designated on a Purchasing Card Administrator Designation Form (a
sample of which is annexed hereto as Exhibit B) as being authorized to approve Card
Applications, set credit limits, and perform certain administrative duties as described in
this Agreement. Each Purchasing Card Administrator Designation Form shall identify
the office held by each Purchasing Card Administrator named therein, if any, and include
a specimen of the signature of each such person.
r. "State " means the State of Colorado.
S. "Transaction Limits" means the parameters established for each Account
and Card Account by the Purchasing Card Administrator and the Bank and may include
(but shall not be limited to) (i) limits on number of Purchases for the related Account,
Card or Card Account on a daily, weekly and/or monthly basis, or any combination
thereof as requested by the Customer; (ii) a dollar limit for each Purchase or Card
transaction using the related Account, Card or Card Account and/or an aggregate dollar
limit for daily, weekly and/or monthly Purchases; (iii) the types of merchants or merchant
codes at which the Account, Card or Card Account may be used; and (iv) such other
parameters as may be agreed upon by the Bank and the Purchasing Card Administrator.
t. "Unauthorized Purchase" means any Purchase not for the purpose of
performing a governmental or proprietary function of the Customer and from which the
Customer obtains no direct or indirect benefit.
U. "Visa International " means Visa International Service Association.
SECTION 2. DESIGNATION OF PURCHASING CARD ADMINISTRATOR.
Except as otherwise provided herein, the Bank will direct all documents and
correspondence relating to this Agreement to a Purchasing Card Administrator. The Bank shall
not act upon any instructions, orders, agreements or other documents submitted by a person
purporting to be a Purchasing Card Administrator unless and until the Bank has received a
Purchasing Card Administrator Designation Form appointing such person as a Purchasing Card
Administrator. The Customer agrees to notify the Bank of any change in any Purchasing Card
Administrator by submitting a new Purchasing Card Administrator Designation Form setting
forth the changes to be made (including the name, office (if any) and specimen signature of any
new Purchasing Card Administrator). Each Purchasing Card Administrator Designation Form
shall be effective upon receipt of such form by the Bank. The submission by the Customer of a
Purchasing Card Administrator Designation Form shall constitute a representation by the
Customer that the individuals named therein have been duly authorized by the Governing Body
-3-
and written proposals, negotiations, representations or understanding concerning the subject
matter of this Agreement. This Agreement may not be modified except by a writing signed by
both parties.
8. Counterpart and Facsimile Signatures. This agreement may be executed in any
number of counterparts, each of which shall be deemed an original but all of which taken
together constitute one and the same instrument. This Agreement may be executed by exchange
of facsimile copies showing the signatures of the parties hereto. Such facsimile copies shall
constitute originally signed copies of the same Agreement requiring no further execution. If this
Agreement is executed by facsimile, the parties shall also execute an original hard copy within
seven (7) days.
9. Jurisdiction. The terms of this Agreement shall be construed in accordance with and
governed by the laws of the State of Colorado, and the venue for all disputed matters and
performances hereunder shall be in Larimer County district Court.
CLARK CONSTRUCTION COMPANY, INC.
By:
1;U&6644--
David J. Clafk, General Manager
THE CITY OF FORT
M.
APPRO AS TO FORM
40 �
Assistant City Attorney
Atteberry, City Manager
(or have been designated by an official or officer who has been duly authorized by the Governing
Body) over the transaction of the Customer's Program -related business with the Bank.
SECTION 3. ISSUANCE OF CARDS.
a. The Customer agrees to obtain not less than ten (10) Cards within the first three
months of the term of this Agreement and to maintain at least ten (10) Card Accounts at all times
during the remaining term of this Agreement.
b. Promptly following the execution of this Agreement, (i) the Bank and the
Customer shall agree upon the date when the Bank shall begin issuance of the Cards; (ii) the
Customer shall advise the Bank where and to whom to send the Cards and scheduled periodic
statements, invoices and reports with respect to the Program and Cards, and (iii) the Customer
shall inform the Bank of any Merchant Category Codes to be precluded from Card usage
pursuant to Section 5(a) hereof, and such other information as the Bank may reasonably request.
C. The Customer shall deliver to the Bank a completed Card Application, signed by
the Purchasing Card Administrator, for each Employee who shall be issued a Card. The
Purchasing Card Administrator shall keep copies of such applications in a secure area under the
Customer's control.
d. The Bank shall promptly issue a Card to each Employee for whom the Purchasing
Card Administrator submits to the Bank a completed Card Application, provided that the
aggregate dollar Transaction Limits do not exceed the Customer's Charge Limit. Where
emergency issuance is reasonably requested by the Customer, the Bank will endeavor to issue
Cards within two (2) business days or less. The Bank shall issue a new Card in replacement of
each outstanding Card prior to the expiration date of such Card unless, at least thirty (30) days
prior to the expiration date of an outstanding Card, the Bank receives notice from the Customer
not to issue a renewal Card.
e. The Bank shall send the Cards to the Purchasing Card Administrator by first class
mail to the address designated by the Purchasing Card Administrator. Each Card shall be
accompanied by any disclosures or other materials deemed necessary by the Bank. The Bank
may institute any security procedures regarding the issuance and activation of Cards that the
Bank may deem necessary or desirable.
f. The Customer may, in its discretion, require Employees to sign a Card Agreement
which shall govern the Employees' use of the Cards, and the Bank shall have no liability in
connection therewith. In the event of any conflicts between this Agreement and the Card
Agreement, this Agreement shall govern.
g. Except for the cancellation or closure of any Card or Account (which is covered in
Sections 5 and 10 of this Agreement), the Customer shall promptly advise the Bank in writing of
any changes to be made with respect to any Card or Account by submitting to the Bank an
Account Maintenance Form substantially in the form of Exhibit C hereto.
SECTION 4. TRANSACTION LIMITS.
a. The Bank will assign maximum Transaction Limits to each Account and Card
Account, as designated by the Purchasing Card Administrator.
b. From time to time, the Bank shall establish and advise the Customer of the
Charge Limit for all Accounts and Card Accounts.
C. Promptly upon the request of the Purchasing Card Administrator, but no later than
two (2) business days following receipt of an Account Maintenance Form signed by the
Purchasing Card Administrator, the Bank shall increase or decrease any Transaction Limits in
accordance with such request, so long as the Customer's aggregate Charge Limit is not exceeded.
if-
d. The Bank, or any Authorizer, may refuse to authorize any Purchase referred to it
(i) permitting the Purchase would cause any of the Transaction Limits
applicable to the Account or Card Account to which such Purchase will be charged to be
exceeded;or
(ii) The Bank believes that it is an Unauthorized Purchase; or
(iii) The Customer fails to make any payment required by this Agreement by
the Payment Due Date; or
(iv) the sum of the amount of any Card transaction and the then outstanding
principal balance (including Purchases authorized but not yet posted) in the respective
Account or Card Account would exceed any applicable Transaction Limits for such
account; or
(v) the sum of the amount of such Purchase and the then aggregate amount of
outstanding principal balances (including Purchases authorized but not yet posted) in all
Accounts and Card Accounts would exceed the Customer's aggregate Charge Limit; or
-5-
(vi) the Purchase otherwise varies from parameters agreed upon by the
Customer and the Bank, including if an Employee attempts to make a Purchase at an
establishment having a Merchant Category Code specified by the Customer pursuant to
Section 5(a) as being ineligible for selling goods and services to Employees.
The Customer acknowledges that the Operating Regulations do not require prior
authorization from the Bank for some Purchase transactions and, accordingly, the Transaction
Limits for any Account, Card or Card Account and the Charge Limit for the Customer may be
exceeded. If the Customer's Charge Limit is exceeded at any time, the Customer shall
immediately remit payment to the Bank for such excess.
SECTION 5. USE OF CARDS AND ACCOUNTS.
a. The Customer agrees that the Accounts and Cards are to be used by Employees
only for the Customer's Purchases relating to the performance of its governmental or proprietary
functions under applicable law, subject to this Agreement, the Operating Regulations and the
terms and conditions of any Card Agreement, and the Customer shall so instruct Employees.
Accordingly, from time to time, the Customer may notify the Bank of certain Merchant Category
Codes of trades, professions or lines of business to be precluded from selling goods or services to
Employees hereunder.
b. The Customer may direct the Bank to cancel any Card or Account at any time for
any reason whatsoever. In order to cancel an Account or a Card of an Employee who will
continue to be employed by the Customer after such cancellation, the Customer must complete
and deliver to the Bank an Account Maintenance Form substantially in the form of Exhibit C
hereto. The Bank will promptly (and in any event within one (1) business day of the Bank's
receipt of the necessary Account Maintenance Form, provided the Customer telephonically
confirms receipt thereof by the Bank) process the Customer's request for cancellation of a Card
or Account. In the event that any Card is canceled by the Customer due to the termination of the
employment of any Employee, the Customer must promptly complete and deliver to the Bank a
notice of cancellation substantially in the form of Exhibit D hereto. Customer shall be solely
responsible for having policies in place to prevent misuse of Cards by Employees whose
termination of employment is pending or has occured, and for any losses resulting from any such
misuse.
C. The Bank may cancel or suspend the right to use any Card or Account in its sole
and absolute discretion at any time if the Bank suspects fraud or misuse, and the Bank agrees to
promptly notify the Purchasing Card Administrator of any such cancellation or suspension. The
Bank shall have no obligation or responsibility to the Customer, any Employee or any user of a
Card or an Account in the event that any person, firm, corporation or Authorizer refuses to honor
in
a Card, Card Account or Account, or if the Bank refuses or fails to authorize the use of any Card,
Card Account or Account.
SECTION 6. CARD REQUIREMENTS, USE OF VISA MARKS.
a. Each Card issued under the Program shall be a Visa card complying with the
applicable requirements and specifications for purchasing cards in the Operating Regulations.
Subject to such requirements and specifications, each Card may bear such other language or
symbols as the Bank may deem appropriate.
b. At the request of the Bank, the Customer shall provide the Bank with copies of
any materials accompanying or relating to the use of the Card which shall be provided by the
Customer to Employees from time to time. All such materials shall identify the Bank as the
Issuer of the Card and shall prominently indicate that the Card is a Visa card. The Customer
acknowledges ownership of the "Visa" mark by Visa International and will do nothing
inconsistent with such ownership.
SECTION 7. STATEMENTS AND REPORTS.
a. Unless the Customer requests otherwise, the Bank shall prepare for each billing
cycle an individual statement for each Card Account containing a new balance ( "Card Account
Statement"). The Bank shall mail each Card. Account Statement to the Employee holding such
Card Account at the address designated on the Card Application for such Employee, together
with disclosures or other materials deemed necessary or appropriate by the Bank.
b. For each billing cycle, the Bank shall send to the Purchasing Card Administrator
and/or any representatives designated by the Purchasing Card Administrator (e.g., department
managers) a consolidated statement setting forth the balances and Purchase activity of the
Accounts and Card Accounts. All statements received by the Customer from the Bank will be
promptly examined by the Customer and, absent written notice from the Customer to the Bank
within 60 days of receipt thereof, all statements shall be conclusively deemed to be correct.
C. At the request of the Customer, the Bank may compile certain information about
the sellers of goods and services accepting the Cards which may be provided by such sellers,
such as Merchant Category Codes and information identifying such sellers as unincorporated
business enterprises or business enterprises owned by certain minorities or women. The Bank
cannot guaranty the accuracy of any such information and by conveying such information to the
Customer does not undertake to perform any reporting or compliance obligations of the
Customer pursuant to law, regulation or government contract or grant.
-7-
d. The Customer shall famish to the Bank such information about the Customer's
operations, fund balances, cash flow statements and financial condition as the Bank may
reasonably request from time to time, including, without limitation, its financial statements. The
Bank is authorized to investigate and obtain information about the Customer as the Bank deems
appropriate, subject to any applicable law regarding confidentiality of the Customer's meetings
and records.
SECTION 8. DISPUTES WITH MERCHANTS.
If the Customer has any questions, problems or disputes concerning the quality of goods
or services purchased by means of any Card or an Account, the Customer agrees to contact the
seller directly to resolve such question, problem or dispute. The Customer acknowledges that the
Bank is not liable for the quality of any such goods or services.
SECTION 9. LIABILITY FOR PURCHASES, FEES AND OTHER CHARGES.
a. The Customer shall pay the Bank compensation for services hereunder at the
applicable rates and times indicated on the pricing schedules furnished by the Bank to the
Customer and attached hereto as Exhibit E. The Bank may amend such pricing schedules from
time to time upon sixty (60) days' prior written notice to the Customer, and any Purchase by the
Customer after such sixty (60) day period shall constitute its acceptance of such amendment. If
the Customer does not agree with such amended pricing schedules, the Customer may, within
such 60 day period, terminate the Agreement upon 60 days prior written notice to the Bank. The
Customer shall also be liable for all Purchases charged to the Card Accounts and Accounts,
except for Unauthorized Purchases made after the Customer or any Employee has notified the
Bank in accordance with Section 5 or 10(a) that a Card Account or Account should be cancelled.
Such amounts shall be due and payable from Legally Available Funds in full for each periodic
billing cycle on or before the applicable Payment Due Date. The Bank and the Customer shall
mutually agree upon (i) the length of the periodic billing cycle, which may be weekly, bi-weekly
or monthly, (ii) the number of days (not to exceed twenty-five (25)) used to determine the
Payment Due Date following the end of each billing cycle and (iii) the method of payment which
may be by check, pre -authorized debit to the Customer's deposit account at the Bank or an
affiliate of the Bank. The billing date applied to each periodic billing cycle shall be assigned by
the Bank. The Customer may not deduct or withhold, without the prior written approval of the
Bank, any credit, chargeback, disputed or questioned amount from the aggregate amount due
when making payment. If the Customer reasonably believes that any Purchase shown on its
periodic statement is in error, the Customer shall notify the Bank and the Bank will make any
appropriate adjustment on the Customer's next periodic statement. All payments by the
Customer shall be remitted in U.S. dollars. Any amount due and owing by the Customer and not
received by the Bank on or before the Payment Due Date shall be charged interest at the lesser of
5671
the maximum rate permitted by applicable law for obligations of the nature created by this
Agreement or the Bank's then current rate of interest as shown on the pricing schedules furnished
by the Bank to the Customer and attached hereto as Exhibit E. The Customer shall be obligated
to pay any such interest solely from Legally Available Funds.
b. Notwithstanding anything in this Agreement to the contrary, any payment
obligation of the Customer pursuant to this Agreement shall be payable solely from Legally
Available Funds and shall not constitute, nor give rise to, a debt, indebtedness or multiple fiscal
year direct or indirect debt or other financial obligation within the meaning of any constitutional,
home rule charter or statutory debt limitation. This Agreement does not pledge the general credit
or taxing power of the Customer, the State, or any of the State's political subdivisions.
SECTION 10. REPORTING UNAUTHORIZED USE; VISA WAIVER PROGRAM.
a. If the Customer or any Employee knows of or suspects the loss, theft or possible
unauthorized use of a Card, Card Account or an Account, the Customer or the Employee, as the
case may be, shall notify the Bank thereof as promptly as practicable by telephone call to the
toll -free customer service telephone number appearing on the reverse of the Cards and periodic
account statements, or such other telephone number as may be hereafter designated by the Bank.
The caller shall report the respective Employee's name, Card Account number and the last -
known address of such Employee or, if applicable, the Account number and request that such
Card Account or Account be canceled. The Bank shall thereupon place a hold on the respective
Card Account or Account to prohibit its further use, and the Customer shall have no liability for
further use of such Card Account or Account after such telephone call. The Purchasing Card
Administrator shall promptly confirm such notice in writing by submitting Exhibit C or D to the
Bank, as applicable.
b. In cases of unauthorized use of a Card, the Customer shall, contemporaneously
with the Customer's issuance of the notice of cancellation described in the previous subsection,
use its best efforts to (i) hand deliver or send to the respective Employee at the Employee's
current address, a copy of such written notice of cancellation, and (ii) retrieve and destroy such
Card. The Customer shall also cooperate with the Bank in its efforts to resolve any fraudulent
transactions made by means of a Card or an Account.
C. The Customer's liability for Unauthorized Purchases by Employees may be
reduced to the extent of insurance coverage provided by the Visa Purchasing Liability Waiver
Program ( "Liability Program"). The Customer's coverage shall be according to the terms,
subject to the exclusions, and on the conditions of the Liability Program as established from time
to time by the Liability Program's underwriters, including but not limited to the condition that
the Customer meet all of its then -current obligations under the Liability Program and as set forth
ME