HomeMy WebLinkAboutCC RES 2010-83RESOLUTION NO. 2010-83
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM DESERT,
CALIFORNIA, RESCINDING RESOLUTION NOS. 86-8 AND 90-143, AND
AUTHORIZING THE APPLICATION FOR A CITY COMMERCIAL CARD, AND THE
SIGNATURES THEREOF
WHEREAS, it is expeditious for the City of Palm Desert, California, to have a
credit card for emergency (disaster) planning, travel, computer equipment, and local
meeting purchases.
NOW THEREFORE, BE IT RESOLVED, by the City Council of the City of Palm
Desert, California, that:
Section 1: The City Clerk shall be authorized and directed to execute Exhibits
"A" and "C", which are attached hereto, and made a part hereof.
Section 2: The Mayor shall be authorized and directed to execute Exhibit "B",
which is attached hereto, and made a part hereof.
Section 3: Said credit card shall be issued to, and for the exclusive use of, the
City Manager, with a credit limit not to exceed $25,000.00.
Section 4: The City Finance Director shall be authorized and directed to serve
as the Program Administrator for the City credit card.
PASSED, APPROVED, AND ADOPTED, by the City Council of the City of Palm
Desert, California, on this l8th day of November , 2010, by the following vote, to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
BENSON, FERGUSON, RROONEN, SPIEGEL, and FINERTY
NONE.
NONE
NONE
444-1 1
INDY FINERTY AYOR
ATTEST:
R CHELLE D. KLASSE 1, CITY CL IRK
CITY OF PALM DESERT, CALIFORNIA
Resolution No. 2010-83
EXHIBIT "A"
CORPORATE RESOLUTION
I, the undersigned, hereby certify to First National Bank of Omaha ("Bank") that I am Secretary of
City of Palm Deser(CCorporation"), located in California , and that I have been duly elected
and am presently serving in that capacity. I further certify that the following resolutions have been duly adopted by
the Board of Directors, or other goveming body, of the Corporation and such resolutions are in full force and effect
as of the date hereof and have not been revoked or rescinded as of this date:
RESOLVED that:
1. The First National Bank of Omaha Commercial Card Agreement ("Agreement") is approved.
2. The official(s) designated below ("Authorized Officials)") is/are duly elected and holding the
office shown, authorized to borrow money on behalf and in the name of the Corporation, execute
any notes, drafts, agreements and other documents and instruments, pledge and encumber property
of the Corporation (including, without limitation, bank accounts), and name the individuals at the
Corporation who shall be authorized to instruct First National Bank of Omaha to issue credit cards
to one or more employees of the Corporation, and the signatures below are the genuine signatures
of such persons.
Authorized Official(s):
CINDY FINERTY MAYOR
Printed Name Title Signature
JOHN M. WOHLMUTH CITY MANAGER
Printed Name Title Signature
RACHELLE D. KLASSEN CITY CLERK
Printed Name Title Signature
PAUL S. GIBSON FINANCE DIRECTOR
Printed Name Title Signature
3. The resolutions shall continue to be in full force and effect until express written notice of its/their
rescission, modification or termination has been received by the Bank. Any and all prior
resolutions received and certified by the Bank shall continue to have full force and effect until the
Bank receives such written notice. Any rescission, modification or termination of a resolution
must be accompanied by written notification to the Bank.
IN WITNESS WHEREOF, I have subscribed my name to this document and affixed the seal of the Corporation on
the day of , 20_
(SEAL)
Signature of Secretary
RACHELLE D. KLASSEN
Printed Name
4852-80I 5-0276.2
Resolution No. 2010-83
EXHIBIT "B"
FIRST NATIONAL BANK OF OMAHA COMMERCIAL CARD AGREEMENT
This Commercial Card Agreement (the "Agreement") is made as of December 1, 2010 (the "Effective Date")
between First National Bank of Omaha (the "Bank") and the undersigned business or governmental entity (the
"Company") (each, a "Party" individually, and the "Parties" collectively). References to an article, section or sub-
section below refer to the designated segments of this Agreement, unless otherwise indicated.
RECITALS
A. The Bank is a member of network organizations that process transactions for credit cards and
charge cards (each, a "Card Association"), including those cards the Bank issues for commercial use by its
customers.
B. The Company has requested a commercial card account from the Bank and has directed the Bank
to issue ten (10) or more cards and provide related account services for the Company and its employees and agents.
C. The Bank is willing to issue commercial cards and provide accounts and related services on the
terms and conditions set forth in this Agreement and its attached Schedules, Exhibits and Addendums, which are
incorporated in the Agreement by this reference.
In consideration of the premises and mutual agreements set forth in this Agreement, the Company and the Bank
agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.1 For purposes of this Agreement, the following terms shall have the meanings
indicated below:
(a) "Account" means the master account the Bank establishes in the Company's name,
associated with Cards the Bank issues to the Company, Employees and Cardholders, and reflecting all
Transactions made with Card Accounts of Employees and Cardholders.
(b) "Application" means an application, submitted in the form and manner specified by the
Bank, requesting that the Bank open the Account or requesting that the Bank issue a Card and open a
related Card Account for an Employee or Cardholder.
(c) "Bank Affiliate" means all entities that are Controlling, Controlled by or under common
Control with the Bank, its parent First National of Nebraska, Inc., the Lauritzen Corporation or any
financial services entities controlled by the Lauritzen family.
(d) "Browser" means an Internet browser that complies with specifications set forth in the
User Guide, used by the Company in connection with the Online Services and the Online Services System.
(e) "Card" means any plastic card branded with a Card Association brand that the Bank
issues to the Company, an Employee or a Cardholder under the Program. Any reference to use of a Card in
the Agreement shall also mean use of its related Card Account.
(f) "Card Account" means each sub -account the Bank establishes for Employees and
Cardholders under the Account, including those associated with use of a particular Card, those for which
the Bank has not issued a Card, and Guaranteed Accounts.
(g) "Card Account Statement" means an individual periodic statement the Bank prepares to
disclose the applicable balances, Transactions, and Program Fees and Charges for a Card Account at the
end of each killing cycle.
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(h) "Card Association Liability Program" means liability protection insurance coverage a
third -party insurer or Card Association may separately agree to provide the Company, to limit the
Company's liability for Unauthorized Transactions.
(i) "Cardholder" means an Employee designated by the Company or its Program
Administrator to receive a Card and who is authorized to use a Card and Card Account, including any
person using an Unassigned Card for any reason from time to time.
(j) "Cardholder Agreement" means any agreement between the Bank and a Cardholder that
governs a Cardholder's use of a Card and Card Account, as amended from time to time, consistent with this
Agreement.
(k) "Cash Advance" means the use of a Card or any check, instrument, certificate, device or
method the Bank permits for access to the Card Account, when used to obtain a cash advance or a Cash
Equivalent Transaction or to initiate any Transaction other than one designated as a Purchase by the Bank.
Any such Cash Advance can result from transactions made through the Bank, participating financial
institutions, ATMs, point of sale terminals, or otherwise, regardless of whether a Card was presented, the
Cardholder's signature was obtained, or a personal identification number was assigned to or used by a
Cardholder.
(1) "Cash Equivalent Transaction" means a Cash Advance obtained through a merchant or
service provider that the Card Association has identified as a seller of travelers checks, foreign currency,
money orders, wire transfers, lottery tickets, funds used for wagers or gambling, or similar products or
services.
(m) "Charge Limit" applies to both the Account and each related Card Account, and means
the maximum aggregate unpaid balance of all Transactions and Program Fees and Charges that may be
outstanding on the Account or the Card Account at any time, as determined by the Bank.
(n) "Claim" means: (a) any pre-existing, present or future claim, dispute or controversy that
arises from or in any way relates to this Agreement, any Cardholder Agreement, the Account, any Card
Account, any Card, the credit the Bank offers or denies to Company, Cardholders and Employees in
accordance with this Agreement, any Application, or the benefits, rewards or other products or services that
are offered in connection with this Agreement, the Account, any Card Account or any Card; or (b) the acts
or omissions of any Party, Bank Affiliate, Company Affiliate, Cardholder and Employee if those acts or
omissions affect or relate to this Agreement, the Account, any Card Account, any Card or any benefits,
rewards or other products or services related thereto. Claims include, but are not limited to, claims based
on contract and tort (including intentional torts), claims made in law or in equity, claims based on
constitutional, statutory, regulatory and common law rights, and claims for damages, penalties and
injunctive, declaratory or equitable relief.
(o) "Class Proceeding" means any Claim or Claims brought by or on behalf of a class,
brought in a representative capacity or otherwise on a class basis, or brought in the form of a private
attorney general action, regardless of whether they are commenced in court or in arbitration.
(p) "Company Affiliate" means all entities that are Controlling, Controlled by or under
common Control with the Company.
(q)
"Company Marks" shall have the meaning assigned in Section 8.4.
(r) "Confidential Information" of the Bank shall have the meaning assigned in Section 16.1
and "Confidential Information" of the Company shall have the meaning assigned in Section 16.2.
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(s) "Consolidated Billing Statement" means a periodic statement the Bank prepares to
disclose the applicable balances, Transactions, and Program Fees and Charges due from the Company for
the Account and all applicable Card Accounts at the end of each billing cycle.
(t) "Control" means possessing, directly or indirectly, the power to direct or cause the
direction of the management policies or operations of any entity, whether through ownership of voting
securities, by contract, or otherwise.
(u) "Devices" mean the security codes, passwords, and other security materials required for
access to the Online Services System, as further described in the User Guide.
(v) "Employee" means an employee, agent, contractor, director, or officer of the Company or
a Company Affiliate.
(w) "Guarantee" shall have the meaning assigned in Section 2.2.
(x) "Guaranteed Account" shall have the meaning assigned in Section 2.2.
(y) "Initial Term" shall have the meaning assigned in Section 19.1.
(z) "Merchant Category Code" means a code that a Card Association has assigned to identify
the principal business of a vendor, merchant or other third party that accepts payments from customers
made with Cards and Card Accounts.
(aa) "Online Account Information" means information about the Program, Account, Card
Accounts, Cardholders, Employees, and pending and posted Transactions, which the Bank provides and
makes available to the Company in connection with its use of the Online Services System.
(bb) "Online Services" shall have the meaning assigned in Section 22.1.
(cc) "Online Services Materials" means the User Guide and all other documents and materials
the Bank provides or makes available to the Company in connection with its use of the Online Services, the
Online Services Software, and the Online Services System.
(dd) "Online Services Software" means the software accessible to the Company through the
Online Services System, in connection with its use of Online Services.
(ee) "Online Services Software License" means the personal, nonexclusive and
nontransferable license the Bank grants to the Company, and the Company accepts from the Bank, to use
software accessible to the Company through the Online Services System.
(ff) "Online Services System" means one or more operating systems, applications, and
platforms through which the Bank provides or makes available Online Services to the Company, as
described more specifically through the User Guide.
(gg) "Operating Rules" mean the operating rules and regulations of a Card Association, the
Bank, or both, as amended from time to time.
(hh) "Payment Due Date" means the date after each Statement Date for the Account and each
Card Account by which payment to the Bank is due from the Company and/or its Cardholders.
(ii) "Pricing Schedule" means terms, conditions, and limitations set forth in Schedule A to
this Agreement, as amended by the Bank from time to time in accordance with Section 17.2, including all
Program Fees and Charges the Company, Employees and Cardholders must pay the Bank and any
compensation or incentive payments the Bank must pay the Company.
uc9
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Resolution No. 2010-83
(jj) "Program" means the commercial card program the Bank establishes for the Company on
terms and conditions set forth in this Agreement, through which the Bank opens the Account and permits
use of Cards and Card Accounts.
(kk) "Program Administrator" means each individual the Company designates as a
representative using the Bank's Program Administrator designation form, each of whom is individually
authorized to: (i) submit requests for Cards and/or Applications by or on behalf of Employees and
Cardholders; (ii) request Charge Limits for individual Cards and Card Accounts (but not an overall Charge
Limit for the Account); (iii) request Transaction Limits for individual Cards and Card Accounts; (iv)
request cancellation or suspension of individual Cards and Card Accounts; and (v) perform certain
administrative duties as described in the Agreement. The Company must designate each Program
Administrator in the form and manner required by and acceptable to the Bank, in its sole discretion.
(11) "Program Fees and Charges" means the fees, charges, and interest rates established by
the Pricing Schedule in Schedule A that are payable to the Bank by the Company, Employees and
Cardholders.
(mm) "Program Instructions" means the features the Company and its Program Administrator
have requested or selected in connection with the Program, the Account, the Card Accounts, and the Online
Services, as detailed through Set-up Forms and other forms that the Company and the Program
Administrator provide to the Bank, in the time and manner established by the Agreement.
(nn) "Purchase" means use of a Card or any check, instrument, certificate, device or method
the Bank permits for access to the Card Account, when used to pay for goods or services sold, leased, or
otherwise provided by any person, entity, or financial institution or initiate any transaction other than one
designated as an Cash Advance by the Bank, regardless of whether a Card was presented or a Cardholder's
signature was obtained by any such person, entity, or financial institution.
(oo) "Renewal Term" shall have the meaning assigned in Section 19.1.
(pp) "Security Procedures" means the security procedures for using the Devices required for
access to the Online Services System, as described in the User Guide.
(qq) "Set-up Forms" means the forms the Company provides to the Bank to request Online
Services through the Online Services System.
(rr) "Statement Date" shall mean the closing date of the periodic billing cycle for the Account
and for each Card Account, assigned by the Bank and disclosed on Consolidated Billing Statements and
Card Account Statements.
(ss) "Term" shall have the meaning assigned in Section 19.1.
(tt) "Transactions" means any Purchase or Cash Advance.
(uu) "Transaction Limit" means parameters the Program Administrator and Bank establish for
a Card Account, including but not limited to limits on: (i) the number of Transactions permitted during a
specified time period for a Card Account; (ii) the dollar amount of Transactions permitted during a
specified time period for a Card Account; (iii) the Merchant Category Codes for which a Card Account
may be used; and (iv) such other parameters as may be agreed by the Bank and Program Administrator.
(vv) "Unassigned Cards" are Cards the Bank issues in the name of the Company at its request,
without designating a specific Cardholder authorized to use the Card.
(ww) "Unauthorized Transaction" means any Transaction not for the purpose of carrying on the
Company's business and from which the Company obtains no direct or indirect benefit.
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(xx) "User Guide" means the user manuals and other user materials, individually and
collectively, that the Bank furnishes to the Company in connection with its Program, the Online Services
System, and any related Online Services.
ARTICLE 2
PROGRAM EXCLUSIVITY; COMPANY GUARANTY AND FINANCIAL REPORTS
Section 2. 1 During the Term, the Company shall not, by itself or in conjunction with any
Company Affiliate: (a) enter into an agreement with any financial institution other than the Bank related to the
issuance or use of commercial credit cards or commercial charge cards by Employees and Cardholders; (b) enter
into an agreement authorizing use of any Company Marks in connection with any commercial credit cards or
commercial charge cards to be used by Employees and Cardholders; or (c) directly or indirectly endorse, support,
participate in, or benefit from any commercial card program other than the Program, related to the issuance or use of
commercial credit cards or commercial charge cards by Employees and Cardholders.
Section 2.2 If the Company or a Program Administrator requests and the Bank agrees to
issue a Card and establish a Card Account for a Cardholder or Employee of a Company Affiliate identified in
Exhibit 1 (each, a "Guaranteed Account"), the Company shall be liable to the Bank for any and all Transactions and
Program Fees and Charges related to or arising from use of any such Guaranteed Account, as well as any losses and
reasonable costs of collection the Bank incurs related to such Guaranteed Account (the "Guarantee"). The Company
shall execute any additional instruments in the time and manner the Bank might request in connection with any such
Guarantee. The Guarantee of each Guaranteed Account shall remain in full force and effect after termination of this
Agreement and any such Guaranteed Account, until any such Guaranteed Account has been paid in full and closed
to further activity.
Section 2.3 The Company shall provide or cause its accountants and auditors to provide the
Bank with reasonably detailed financial statements and reports about the Company, in the time and manner the Bank
requests during the Term and while the Company remains obligated to the Bank under the Agreement. The financial
statements and reports the Company must provide on an annual or more frequent basis upon the Bank's request
include periodic statements of income, statements of cash flow, and balance sheets of the Company, as well as
statements regarding changes in shareholder's equity of the Company and any Company Affiliate. Any such
statements and reports must, as determined by the Bank, be audited by an independent public accountant selected by
the Company or contain a certification by the Company's chief financial officer that such reports are accurate and
complete in all material respects.
Section 2.4 The Bank is authorized to investigate and obtain information about the
Company as the Bank deems appropriate. The Bank may provide information about the Company and Cardholders
to the Card Association, its member institutions and contractors, and credit reporting agencies.
ARTICLE 3
USE OF ACCOUNT, CARDS AND CARD ACCOUNTS
Section 3.1 The Bank, from time to time and in its sole discretion, will establish and advise
the Company of its Charge Limit for the Account and the respective Charge Limits for the Card Accounts. The Bank
will otherwise provide services to the Company, Employees and Cardholders in the manner described in this
Agreement and the Cardholder Agreement. The Bank shall have sole discretion over the management, operation,
content and features of the Program. The Bank may modify any aspect of the Program as provided in this
Agreement and the Cardholder Agreement.
Section 3.2 The Company understands and agrees that the Account, the Cards and the Card
Accounts are for use by Employees and Cardholders for their business -related Transactions, as provided under the
terms and conditions of this Agreement, the Operating Rules and the Cardholder Agreement, each as amended from
time to time. The Company agrees to notify Employees and Cardholders about the business purposes for which the
Account, the Cards and the Card Accounts may be used. The Bank agrees that it will use commercially reasonable
efforts to notify the Company about particular requirements of the Operating Rules that may impact or affect the
Account, the Cards, and the Card Accounts.
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Section 3.3 The Company, consistent with its internal policies, may instruct Employees and
Cardholders to use a Card and Card Account only for specific kinds of business -related Transactions. The Bank
shall not have any duty or obligation to question or investigate the underlying purpose or nature of any Transaction,
except to the extent the Bank might be specifically required to do so in connection with Transaction Limits or other
limits specifically established by this Agreement. The Company may, in its sole discretion, require that Employees
sign a separate agreement related to their permitted use of a Card and Card Account. The Bank shall not be liable to
the Company or any Employee or Cardholder in connection with any such agreement that might exist between those
parties. The Bank's duties and obligations to the Company, Employees and Cardholders are established by this
Agreement, the Operating Rules and the Cardholder Agreement, each as amended from time to time.
ARTICLE 4
CANCELLATION OF CARDS; CARD REFUSAL BY THIRD PARTIES
Section 4.1 The Program Administrator or the Company may direct the Bank to cancel any
Card or Card Account at any time and for any reason whatsoever, after giving the Bank a cancellation notice in the
time and manner it requires and a reasonable opportunity to act on any such instructions. If Company cancels any
Card and Card Account due to termination of any Employee's employment, the Company must notify the Bank
within two (2) business days after the earlier of the date the Employee's employment is terminated or the date the
Employee gives or receives oral or written notice of immediate or pending termination of employment. The Bank
may cancel or suspend the right to use any Card or Card Account in its sole and absolute discretion at any time.
Section 4.2 The Bank shall have no obligation, responsibility or liability to the Company or
an Employee, Cardholder or any user of a Card or a Card Account (including the user of an Unassigned Card) if any
person, entity or financial institution refuses to honor a Card, Card Account or the Account, or if the Bank refuses or
fails to authorize the use of any Card, Card Account or Account.
ARTICLE 5
DESIGNATION AND RESPONSIBILITIES OF PROGRAM ADMINISTRATOR
Section 5.1 The Company shall provide the Bank with a written designation of one or more
representative(s) as a Program Administrator, each of whom shall be individually authorized to: (i) designate the
Employees authorized to receive Cards and use Card Accounts; (ii) establish or change the Charge Limit and
Transaction Limits requested by the Company for any Cardholder, Card and Card Account (but not the overall
Charge Limit of the Account); (iii) direct the Bank to cancel or suspend any Card or Card Account; and
(iv) otherwise act as the Company's authorized representative in administering the Program on behalf of the
Company and resolving any disputed Transactions. A Program Administrator must promptly advise the Bank in
writing of any changes to be made with respect to the Account and any Card or Card Account, using a request form
acceptable to the Bank and purportedly signed or submitted by a Program Administrator. The Bank, without further
inquiry, may rely on, deal with, and accept Program instructions from any person who identifies himself or herself
as a Program Administrator in all matters related to the operation and administration of the Program. The Bank shall
not be liable or responsible to the Company for any Program Administrator that exceeds the limits of his or her
authority.
Section 5.2 The Bank will, except as otherwise provided in this Agreement, direct all
documents and correspondence relating to this Agreement to a Program Administrator. The Bank shall not act upon
any instructions, orders, agreements or other documents submitted by a person purporting to be a Program
Administrator, unless and until the Bank has received a Program Administrator designation form acceptable to the
Bank appointing such person as a Program Administrator.
Section 5.3 The Company must notify the Bank of any change in any Program
Administrator by submitting a new Program Administrator designation form acceptable to the Bank setting forth the
changes to be made (including the name of any new Program Administrator). Each Program Administrator
designation form acceptable to the Bank shall be effective upon receipt of such form by the Bank.
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Section 5.4 The Bank may, in its sole discretion, request separate documents, certificates,
and resolutions from the Company to establish the authority of a Program Administrator, Employee or Cardholder in
connection with the Program and this Agreement. The submission by the Company of a Program Administrator
designation form shall constitute a Company's representation that the individuals named on the form have been
granted general authority from the Company's Board of Directors or other governing body (or have been designated
by an officer who has been duly authorized by the Company's Board of Directors or other governing body) over the
transaction of the Company's Program -related business with the Bank.
ARTICLE 6
ISSUANCE OF CARDS; IDENTIFICATION OF CARDHOLDERS
Section 6.1 Promptly after execution and the Effective Date of this Agreement:
(a) The Bank and the Company shall agree on the date when the Bank shall begin issuance of
Cards;
(b) The Company shall advise the Bank where and to whom it should send the Cards and
Consolidated Billing Statements, Card Account Statements, invoices and reports with respect to the
Program, Account, Card Accounts and Cards; and
(c) The Company shall provide the Bank with written notice of any Transaction Limits and
Merchant Category Codes it should use to prevent particular Transactions pursuant to the provisions of
Article 6 and such other information as the Bank may reasonably request.
Section 6.2 A Program Administrator or the Company shall provide the Bank with a
completed Application or consent for each Employee who shall be issued a Card for use under this Agreement. In all
circumstances where an Employee or Cardholder will be jointly and severally liable with the Company for use of a
Card or Card Account, the Program Administrator or the Company must provide the Bank with an Application for
that Card or Card Account. An Application or authorization requesting issuance of a Card must be signed by a
Program Administrator and, if requested by the Bank, also signed by the Employee and prospective Cardholder. The
Program Administrator must keep copies of such Applications in a secure area under the Company's control. The
Company must provide the Bank with any identification information it might request for each Cardholder in an
Application, including his or her address (business and home), telephone numbers (business and home), social
security number, and date of birth, and update such information as requested by the Bank from time to time during
the term of this Agreement.
Section 6.3 The Bank will issue a Card to each Employee identified in an Application that
has been completed and signed by a Program Administrator. Where emergency issuance is reasonably requested by
the Company, the Bank will use commercially reasonable efforts to issue Cards within seventy-two (72) hours. The
Bank shall issue a new Card to replace each outstanding Card before its scheduled expiration date, unless the Bank
receives written notice from the Company not to issue a renewal Card at least thirty (30) calendar days before its
scheduled expiration date.
Section 6.4 The Bank shall send the Cards to Employees by first class mail to the address
designated on an Application or, at the election of the Program Administrator, to the Program Administrator. Each
Card shall be accompanied by any disclosures or other materials the Bank deems necessary or appropriate. The
Bank may also institute any security procedures regarding the issuance and activation of Cards that the Bank may
deem necessary or desirable.
Section 6.5 Upon the Company's request, the Bank may, in its sole discretion, agree to issue
one or more Unassigned Cards. The Bank will not issue a personal identification number in connection with
Unassigned Cards and the Company understands that Cardholders may be unable to obtain Cash Advances using an
Unassigned Card. Section 9.2 describes where and how the Bank will provide the Company with Card Account
Statements for an Unassigned Card, and Section 11.3 describes the increased liability and indemnity obligations the
Company will incur in connection with any such Unassigned Cards.
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ARTICLE 7
TRANSACTION LIMITS AND CHARGE LIMITS; COMPANY LIABILITY FOR TRANSACTIONS
ABOVE ESTABLISHED LIMITS
Section 7.1 The Bank will establish and advise the Company of its Charge Limit for the
Account. The Bank will assign Transaction Limits and Charge Limits designated by the Company or a Program
Administrator to each Card and Card Account. Promptly upon the request of a Program Administrator, but no later
than five (5) business days following receipt of written notice from the Program Administrator, the Bank shall
increase or decrease the Transaction Limits or Charge Limits of a Card and Card Account in accordance with such
request. If the Company or a Program Administrator does not establish a Charge Limit for any Card Account for
which the Company is solely liable, the Company acknowledges and agrees that the Bank may: (i) establish a
Charge Limit for each such Card Account up to the aggregate Charge Limit of the Company's Account; and (ii)
disclose an amount on Card Account Statements, up to the aggregate Charge Limit of the Company's Account, as
the applicable Charge Limit of each such Card Account (which may not accurately reflect the actual Charge Limit
available for the Company's Account). The Bank reserves the right, in its sole discretion, to modify the Charge
Limit of the Account or any individual Card Account at any time.
Section 7.2 The Company acknowledges that the Account and Card Accounts may exceed
Transaction Limits and Charge Limits established under the Agreement and agrees that the Bank may, in its sole
discretion, allow or reject Transactions that would cause the Account or a Card Account to exceed a Charge Limit or
a Transaction Limit. The Company and its Cardholders shall remain liable and must promptly remit payment to the
Bank for any and all Transactions that would cause the Account or a Card Account to exceed a Charge Limit or
Transaction Limit, as well as any related Program Fees and Charges, as provided by this Agreement and any related
Cardholder Agreement.
Section 7.3 The Bank or any person, entity or financial institution presented with a Card
may refuse to authorize any Transaction referred to it if:
(a) The Transaction is not permitted under the Transaction Limits established for Card
Accounts by this Agreement;
(b) Permitting the Transaction would cause the Charge Limit for the Account to be exceeded,
when the Transaction is included with other Transactions authorized for the Account (including those
Transactions that are authorized but not yet posted);
(c) Permitting the Transaction would cause the Transaction Limits or Charge Limit for a
Card Account to be exceeded, when the Transaction is included with other Transactions authorized for that
Card Account (including those Transactions that are authorized but not yet posted);
(d) The Bank believes that it is an Unauthorized Transaction; or
(e) The Bank has not received any payment required by this Agreement or a Cardholder
Agreement by its Payment Due Date.
ARTICLE 8
CARD REQUIREMENTS AND MARK USE
Section 8.1 Each Card the Bank issues under the Program shall be branded as a Card
Association card, in compliance with the applicable requirements and specifications for such commercial cards
established in the Operating Rules. Each Card may bear other language and symbols the Bank deems necessary or
appropriate, subject to the applicable requirements and specifications of the Operating Rules.
Section 8.2 The Company, upon the Bank's request, must provide the Bank with copies of
any materials accompanying or relating to the use of the Card and Card Accounts that the Company may provide its
Employees from time to time. All such materials shall identify the Bank as the Card issuer and prominently indicate
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that the Card is a Card Association card. The Company acknowledges that the Card Association mark(s) are owned
by the Card Association and the Company agrees not to do anything inconsistent with such ownership. The
Company shall not provide materials to its Employees or Cardholders that contradict or are inconsistent in any way
with this Agreement or the Cardholder Agreement. This Agreement and the Cardholder Agreement shall prevail
over any inconsistent or contradictory statements made by the Company to its Employees or Cardholders about the
Program.
Section 8.3 The Company shall not use any trademark, service mark, logo, or other
intellectual property right of the Bank or a Bank Affiliate without the express prior written consent of the Bank.
Section 8.4 If the Parties have agreed to use certain trademarks, service marks and logos of
the Company or a Company Affiliate ("Company Marks") in connection with the Program, those Company Marks
are set forth in Exhibit 2 to this Agreement. The Company grants the Bank a non-exclusive, non -transferable, non-
sublicenseable, royalty -free, paid -up limited license to use those Company Marks set forth in Exhibit 2, as they now
exist and as they may be modified during the Term, solely in connection with the Program (including, without
limitation, use of any such Company Marks on Cards, periodic statements, Applications, and marketing materials
intended for distribution to Employees and Cardholders). Notwithstanding the preceding sentence, the Bank shall
not be required, in connection with the Program, to use the Company Marks on marketing materials generally used
across the Bank's portfolio of cards for account activation and retention activities, Cardholder agreement, and
related disclosures.
Section 8.5 Exhibit 2 may be amended from time -to -time by the Company providing the
Bank with reasonable notice thereof. If the Company wishes to change any of the Company Marks then in use by the
Bank, the Company shall promptly reimburse the Bank for any reasonable incremental expenses incurred because
the Cards or Program materials used to maintain the Accounts can no longer be used as a result of any such change.
Section 8.6 The Bank acknowledges that the Company is the sole and exclusive owner of
the Company Marks and all rights, title and interest therein and any copyright relating thereto. The Bank
acknowledges that the value of the goodwill associated with the Company Marks, and all rights therein and
pertaining thereto, belong exclusively to the Company. The Bank shall not authorize any third party to use the
Company Marks, except for subcontractors and affiliates of the Bank, engaged by the Bank solely in connection
with the Program.
Section 8.7 The Bank shall comply with the standards reasonably established by the
Company with respect to the form of the Company Marks, and the Bank shall submit to the Company sample
materials evidencing the proposed use of the form of Company Marks. Within five (5) business days after receiving
any such materials by the Company, the Company must provide its written approval of or reasonable objections to
such materials. If the Company does not respond within that five (5) business day period, the Company shall be
deemed to have approved use of those materials by the Bank. The Company agrees that once the Bank has obtained
approval for a given use of the Company Marks, the Bank is not obligated to obtain approval from the Company
again for the same general use.
Section 8.8 On termination of this Agreement for any reason whatsoever, all Cards in the
possession of Cardholders that have not expired may continue to bear the Company Marks until the expiration of
such Cards. The Bank, however, shall have no further right to market the Program or any products or services using
the Company Marks or further use or distribute promotional materials containing the Company Marks.
ARTICLE 9
PROGRAM STATEMENTS AND REPORTS
Section 9.1 The Bank shall send or make available to a Program Administrator, or any
Company representative designated by a Program Administrator, a Consolidated Billing Statement for each billing
cycle. Each such Consolidated Billing Statement will disclose the applicable balances, Transaction activity, Program
Fees and Charges, and other disclosures and information the Bank considers necessary or appropriate for the
Account and all related Card Accounts during the billing cycle. The Bank may send or make available any such
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Consolidated Billing Statement using the physical address, electronic mail address, and/or website designated for
this purpose in Schedule B to this Agreement.
Section 9.2 Unless the Company requests and the Bank otherwise agrees, the Bank shall
also send or make available an individual Card Account Statement for each Card Account at the end of each billing
cycle, in an electronic or paper form acceptable to both Parties. Any such Card Account Statement will disclose the
applicable balances, Transaction activity, Program Fees and Charges, and other disclosures and information the
Bank considers necessary or appropriate for that Card Account. For Unassigned Cards, the Bank will send or make
available a Card Account Statement to a Program Administrator, using the physical address, electronic mail address
and/or website the Parties have established for this purpose in Schedule B to this Agreement. For all other Cards, the
Bank will send or make available a Card Account Statement to a Program Administrator, a Company representative
designated by a Program Administrator, or the Cardholder, using the physical address, electronic mail address
and/or website the Parties have established for this purpose in Schedule B to this Agreement or as designated on the
Application for the Cardholder holding any such Card Account. If the Cardholder is not responsible for payment of
his or her own Transactions and Program Fees and Charges, the Bank will only provide a Card Account Statement
for purposes of informing the Cardholder about his or her use of the Card and Card Account.
Section 9.3 Each Program Administrator, designated Company representative, and/or
Cardholder must promptly examine each Consolidated Billing Statement or Card Account Statement as soon as it is
received from or made available by the Bank. The provisions of Articles 11 and 12 describe the time and manner in
which the Company must provide notice to the Bank of any suspected errors or Unauthorized Transactions shown
on a Consolidated Billing Statement and Card Account Statement, and the liability of the Company, Employees and
Cardholders for any such suspected errors or Unauthorized Transactions.
Section 9.4 At the Company's request, the Bank may compile certain information provided
by the sellers of goods and services that accept the Cards (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
Company, the Bank does not agree to perform or satisfy any reporting or compliance obligations required of the
Company by any applicable law or contract.
ARTICLE 10
MERCHANT DISPUTES; TRANSACTIONS MADE IN FOREIGN CURRENCIES
Section 10.1 If the Company has any questions, problems or disputes concerning the quality
of goods or services purchased from any seller by means of any Card, Card Account or an Account, the Company
agrees to pay the Bank the amount of the related Purchase and contact the seller directly to resolve such question,
problem or dispute. If the Company cannot directly settle its dispute with a seller, then the Company can request the
Bank to process a chargeback subject to the limits of the Operating Rules. The Bank agrees that it will use
commercially reasonable efforts to notify the Company about particular chargeback procedures and requirements of
the Operating Rules that may impact or affect the Account, the Cards, and the Card Accounts. The Company
acknowledges that the Bank is not liable for the quality of any such goods or services and that any dispute between
the Company and any seller shall not affect the Company's obligation to pay the Bank in full for all Transactions
and related Program Fees and Charges in accordance with the terms of this Agreement.
Section 10.2 In the event that any Transaction is made in a currency other than U.S. dollars
outside of the United States, the charges incurred in a foreign currency will be converted by the Card Association
into a U.S. dollar amount in accordance with the procedures set forth in its Operating Rules. The Bank agrees that it
will use commercially reasonable efforts to notify the Company about particular currency conversion procedures
established by the Operating Rules that may impact or affect the Account, the Cards, and the Card Accounts. 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. The Company and Cardholders shall remain liable to the Bank as
provided in this Agreement and any related Cardholder Agreement for all transaction and conversion fees and
charges associated with any such Transactions, as detailed in Schedule A.
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ARTICLE 11
LIABILITY FOR TRANSACTIONS, FEES AND OTHER CHARGES; BANK LIABILITY FOR
INCENTIVES PAYMENTS
Section 11.1 The Company authorizes and directs the Bank to extend credit to the Company
or for its Account from time to time by paying the amount of Transactions arising from use of each Card and Card
Account.
Section 11.2 The Company shall be liable and pay the Bank for all Transactions and all
applicable Program Fees and Charges as established by the Agreement and its attached Pricing Schedule in Schedule
A, even those that might exceed a Charge Limit or Transaction Limit established for the Account or a Card Account.
Each Cardholder may also be jointly and severally liable with the Company for the Cardholder's Transactions and
for his or her Program Fees and Charges under the Program and any applicable Cardholder Agreement, if such
Cardholder liability has been established through an Application, Cardholder Agreement, Schedule B, and/or other
schedules and addendums to this Agreement. The Company shall immediately pay the Bank for any Transactions
and Program Fees and Charges incurred by a Cardholder, even one jointly and severally liable with the Company,
after the Bank notifies the Company about any Cardholder's failure to pay all amounts due and owing under a
Cardholder Agreement. The Company's payment and other obligations to the Bank shall be enforceable against the
Company in accordance with the terms of this Agreement, regardless of the validity and enforceability of the
Cardholder's obligations to the Bank under any Cardholder Agreement.
Section 11.3 The Company understands the increased risks associated with issuance and use
of Unassigned Cards. Despite anything stated to the contrary in the Agreement, the Company agrees that it is fully
liable to the Bank for any and all Program Fees and Charges and all Transactions resulting from use of any
Unassigned Card and its related Card Account, regardless of whether any such Transactions were Unauthorized
Transactions. In addition to its other indemnification obligations under the Agreement, the Company agrees to
indemnify the Bank from and against any and all liability, judgments, claims, demands, judgments, or other
disputes, regardless of merit, together with all costs, charges and expenses imposed in any manner upon or accruing
against the Bank, arising out of or associated in any way with the issuance of Unassigned Cards by the Bank and the
use of those Unassigned Cards by any individual.
Section 11.4 The Bank will establish a monthly periodic billing cycle for the Account and
each Card Account. The exact number of days within each periodic billing cycle may vary slightly from month to
month and the first billing cycle may be more or less than one month. The Bank shall, in its sole discretion, assign
the Statement Date disclosed on Consolidated Billing Statements and Card Account Statements. Where the
Company and its Cardholders have joint and several liability for Card Accounts, the Bank may assign different dates
as the Statement Dates for each Card Account and the Account. As established by Schedule B to this Agreement or
other schedules and addendums to this Agreement, the Bank and the Company shall mutually agree upon: (i) the
number of days used to determine the Payment Due Date that will follow each Statement Date; and (ii) the method
of payment, which may be by check or pre -authorized debit to a deposit account the Company maintains at the
Bank, any Bank Affiliate, or any other depository institution used by the Company and acceptable to the Bank. Any
and all amounts (including the amount of all Transactions) shall be due to the Bank and payable in full on or before
the applicable Payment Due Date that follows each Statement Date for the Account or Card Account. All payments
by the Company must be remitted to the Bank in U.S. dollars. The Company agrees that payments on the Account
and Card Accounts may be applied in the order the Bank selects from time to time. The Bank may apply payments
first to any Program Fees and Charges, then finally to principal balances. Payments to principal balances may be
applied starting with the lowest interest rate, before principal balances with higher interest rates. Until the Bank
deterrnines a payment is unlikely to be returned for insufficient funds or some other reason, the credit available in
the Account and Card Accounts may not reflect a payment.
Section 11.5 The Company 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 Company reasonably believes any Transaction shown on a Consolidated Billing Statement is in
error, the Company must notify the Bank and the Bank will make any appropriate adjustment on the Company's
next Consolidated Billing Statement.
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Section 11.6 The Bank shall charge interest on Transactions at the rates and in the time and
inanner shown on the Pricing Schedule attached as Schedule A to this Agreement. Cash Advances and their related
Transaction fees shall be charged interest beginning with the date of each such Cash Advance until paid in full.
Interest will not be charged on Purchases and other Program Fees and Charges that are paid in full on or before their
applicable Payment Due Date, as shown by Consolidated Billing Statements and/or Card Account Statements.
Interest will accrue on Purchases, and Program Fees and Charges added to a Card Account as Purchases, beginning
with the first day that follows the applicable Payment Due Date. If the Company fails to pay to the Bank any amount
due under this Agreement, then the Bank is authorized to, without prior notice to the Company, apply any account
balances of the Company held by the Bank or any Bank Affiliate toward any balance owed under this Agreement.
Payments received at the Bank's designated payment processing center after 5:00 p.m. Central Time on a Bank
business day (or on any day that is not a Bank business day) will be credited to the Company's Account (and the
underlying Card Accounts) on the next Bank business day. The Bank is permitted to accept late payments,
partial payments or payments marked with restrictive endorsements without losing any of its rights under
this Agreement. The Company shall not send any payment marked "paid in full," "without recourse," or
other similar language unless those payments are marked for special handling and sent to the Bank at First
National Bank of Omaha, Attn: Commercial Card Department, 1620 Dodge Street, Mailstop: 3188, Omaha,
NE 68197, or such other address as the Bank may give in the future.
Section 11.7 The Company shall be liable to the Bank for all uses of, and Transactions made
using, the Account, Cards and Card Accounts, including, without limitation, any Unauthorized Transactions
(including any Transactions made using lost or stolen Cards), that occur before the Company notifies the Bank in
accordance with Section 4.1 or Section 12.1 that the Card or Card Account should be cancelled. Any Card that an
individual receives from the Company, or whose use is authorized by the Company, shall not be considered lost or
stolen or in the hands of an unauthorized person, and the Company shall be liable to the Bank for the use of any such
Card until it is returned to the Bank or the Company has provided the Bank with notice under Section 4.1 or Section
12.1 that such person is no longer authorized by the Company to use any such Card. The Company will make
reasonable efforts to recover any Card from any person no longer employed or designated by the Company to use
the Card, and prevent its use and cooperate in any proceedings or legal actions against such person.
Section 11.8 Notwithstanding the provisions of Section 11.4, if requested by the Bank, the
Company agrees to maintain a deposit account at the Bank or a Bank Affiliate with a balance of available funds
sufficient to accommodate the Company's obligations under this Agreement. The Company authorizes the Bank,
without prior notice, to debit any such account electronically on the Payment Due Date for amounts due under this
Agreement. If there are not sufficient funds in such account, then the Company agrees to pay promptly any amounts
due to the Bank. The Company agrees that the Bank (and any Bank Affiliate, if applicable) will not be responsible
for any dishonor of any check or other item as a result of these actions.
Section 11.9 The Bank may agree to pay to the Company certain compensation or incentive
payments, subject to the terms, conditions and limitations as provided in the Pricing Schedule attached as Schedule
A to this Agreement. The Company acknowledges and agrees that under certain circumstances as provided in the
Pricing Schedule attached as Schedule A to this Agreement, the Company will be obligated to repay compensation
or incentive payments previously received from the Bank and to forfeit accrued but unpaid compensation or
incentive payments.
ARTICLE 12
REPORTING UNAUTHORIZED USE; CARD ASSOCIATION LIABILITY PROGRAM
Section 12.1 If the Company or an Employee knows of or suspects the loss, theft or possible
unauthorized use of the Account or a Card and Card Account, the Company or Employee must promptly notify the
Bank by calling the toll -free telephone number appearing on Card Account Statements and the reverse side of the
Cards, or such other telephone number as the Bank may otherwise designate for use by the Company. The caller
must report the respective Employee's name, Card Account number and the last -known address of such Employee
or, if applicable, the Card Account number, and must request that such Card and Card Account be canceled. The
Bank will then place a hold to cancel and prevent further use of the Card and Card Account, and the Company shall
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not be liable for further use of such Card or Card Account after the Bank has received any such telephone call. The
Program Administrator must promptly send the Bank written confirmation of any such notice.
Section 12.2 The Company, Employees and Cardholders must promptly examine all
Consolidated Billing Statements and Card Account Statements as soon as they are received or made available by the
Bank. The Company or an Employee must provide written notice to the Bank related to any suspected errors in one
or more Transactions, the Account and any Card Account, within sixty (60) calendar days after the date of the
Consolidated Billing Statement or Card Account Statement on which any such error first appeared. Each such notice
must disclose the dollar amount of the suspected error, a Transaction reference number, and a description of the
suspected error. Suspected errors include any failure to receive goods or services arising from a Transaction,
unauthorized use of the Account, a Card or a Card Account by a person other than the Cardholder or authorized
Employee, altered charges, incorrect amounts and charges incurred by telephone order where the authenticity of the
charge is in question. The Bank will investigate any such report of a suspected error and make a determination. All
Consolidated Billing Statements and Card Account Statements will conclusively be deemed correct, unless the
Company or an Employee has provided the Bank with written notice of a suspected error as required by this
Agreement and any applicable Cardholder Agreement.
Section 12.3 In cases of unauthorized use of a Card or a Card Account, the Company shall,
contemporaneously with the Company's issuance of the notice of cancellation described in Section 12.1, use its best
efforts to: (i) hand deliver or send to the respective Employee by certified mail, return receipt requested, to the
Employee's current address, a copy of such written notice of cancellation; and (ii) retrieve and destroy such Card.
The Company shall also cooperate with the Bank in its efforts to resolve any fraudulent transactions made by means
of a Card, Card Account or the Account.
Section 12.4 The Company's liability for Unauthorized Transactions by Employees may be
reduced to the extent of liability protection insurance coverage separately provided by a Card Association under its
Liability Program. The Company's coverage shall be subject to the terms, exclusions, and 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 Company meet all of its then -current obligations under the Liability Program and as set forth by
the Card Association and its underwriters. The current provisions of any such Liability Program are described in a
brochure published by the Card Association, which the Bank has furnished or will furnish to the Company. If the
Card Association modifies or suspends its Liability Program, the Bank may modify or terminate this subsection at
any time upon notice to the Company. The Bank shall not have any liability to the Company under any
circumstances arising from or associated with any such Liability Program.
ARTICLE 13
REPRESENTATIONS, WARRANTIES, AND COVENANTS
Section 13.1 The Company represents, warrants and covenants that:
(a) The Company will cause the Bank to issue and maintain ten (10) or more Cards at all
times under this Agreement;
(b) The Company is duly organized, existing and in good standing under the laws of the state
of its incorporation or formation;
(c) The Company has full right, power and authority to make and perform this Agreement
and to observe all of the provisions hereof;
(d) The making and the performance by the Company of this Agreement and securing
extensions of credit from time to time through the issuance or establishment of the Company's Account,
Cards, and Card Accounts has been validly authorized by all necessary action of the Company and does not
violate the Company's articles of incorporation, charter, partnership agreement, by-laws or any other
document or agreement pursuant to which the Company is organized, or any provision of applicable law,
regulation, order or rule of any governmental agency, or court decision;
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(e) All information (including without limitation business and financial data) now or
hereafter fumished to the Bank and the information contained in each Application, notice of cancellation or
other documentation submitted by a Program Administrator to the Bank hereunder shall be true, complete
and accurate as of the date thereof and may be relied upon by the Bank as being authorized by the
Company;
(1) The Account and all Cards and Card Accounts established or issued under or pursuant to
the Agreement shall be used only for business or commercial purposes; and
(g) The Company has and shall maintain the full right, power and authority to grant the
license of Company Marks in Section 8.4 and doing so does not infringe upon or violate any rights or
interest held in those marks by any third party or Company Affiliate.
Section 13.2 Nothing herein contained shall impair the obligation of the Company, which
shall be unconditional and absolute, to repay all extensions of credit arising out of the use of the Account, Cards, or
Cards Accounts for any purpose and to pay all of its other obligations and liabilities as provided in this Agreement.
The representations and warranties in this Article 13 are made to induce the Bank to issue Cards for the Company's
Account and to extend credit to it and the Employees and Cardholders from time to time. The representations and
warranties made by the Company in this Article 13 shall constitute continuing representations and warranties, until
such time as this Agreement is terminated as herein provided, all Cards have been returned to the Bank or canceled,
all Card Accounts and Accounts have been cancelled and all amounts owing the Bank under this Agreement have
been paid in full.
Section 13.3 The Bank represents, warrants and covenants that this Agreement has been
authorized by all necessary action, does not violate the Bank's charter or by-laws or any other agreement binding
upon the Bank of any provision of law. THE BANK MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF
ANY KIND, EITHER EXPRESS OR IMPLIED, 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.
ARTICLE 14
INDEMNIFICATION
Section 14.1 The Company will indemnify and hold harmless the Bank and its Bank
Affiliates, and their respective officers, directors, agents, subcontractors and employees, and the Card Association
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:
(a) The Company's breach of any of its representations, warranties, or covenants under this
Agreement, or the Bank's enforcement of any of its rights or remedies under or pursuant to this Agreement;
(b) The Bank's compliance with or carrying out any instruction or request which identifies
the Company as sender, if such instruction or request is accepted by the Bank in good faith;
(c) 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 gross negligence or willful
misconduct;
(d) Any incorrect classification of a merchant under the Card Association's Merchant
Category Codes that has the effect of allowing Transactions that the Company and the Bank intended to
preclude under certain Transaction Limits; or
(e) The Bank's good faith refusal to approve any Transactions.
Section 14.2 The provisions of Article 14 shall survive the termination of this Agreement.
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ARTICLE 15
IMPOSSIBILITY OF PERFORMANCE; LIMITATION OF LIABILITY
Section 15.1 The Bank shall not incur any liability for any failure or delay in carrying out any
of its obligations under this Agreement if such failure or delay results from the Bank acting in accordance with
applicable laws or applicable Operating Rules, or from acts of God, strike or stoppage of labor, power failure,
system, network, or equipment failure, adverse weather conditions or any other cause beyond the Bank's control.
The Bank agrees that it will use commercially reasonable efforts to notify the Company about particular
requirements of the Operating Rules that may impact or affect the Account, the Cards, and the Card Accounts.
Section 15.2 The Bank shall have no responsibility and shall incur no liability for any act or
failure to act by any other financial institution, Card Association, or any other third party, including, without
limitation, the refusal of any vendor or merchant to honor any Card or Card Account. The Company acknowledges
and agrees that the functioning of some Program services depends on equipment, software, communication lines and
Program services provided by the Company or parties other than the Bank. The Bank shall not be responsible or
liable in any way for the performance of equipment, software, communication lines and Program services provided
by the Company or any party other than the Bank.
Section 15.3 The liability of the Bank to the Company for any loss or damage arising from or
relating to this Agreement or any of the Bank's services in connection with the Program, regardless of the form of
action, shall be limited to direct damages attributable to the gross negligence or willful misconduct by the Bank, and
in no event shall the Bank be liable for any other damages, including, without limitation, indirect, exemplary,
consequential, punitive or special damages. The Bank's liability to the Company for damages under this Agreement
will in no event exceed the Program Fees and Charges the Company paid the Bank during the six (6) months
preceding the date on which the Company's claim accrued against the Bank. In no event will the Bank be liable for
any claim asserted against the Company by any third party, except as set forth in this Agreement.
Section 15.4 The provisions of this Article 15 shall survive termination of this Agreement.
ARTICLE 16
CONFIDENTIALITY
Section 16.1 The term "Confidential Information," with respect to the Bank and regardless of
whether the Agreement is then in effect, shall mean: (i) the terms and conditions of the Agreement; (ii) any payment
and pricing terms or fees for the Program, the Account, and Cards; (iii) the Program user guide(s); (iv) security
procedures for the Program, the Account and Cards; and (v) any other documentation with respect to the Agreement
or the Program that the Bank has designated as confidential or proprietary. The Company agrees that it, its Company
Affiliates, and each Employee or Cardholder shall safeguard and not disclose any Confidential Information of the
Bank to any party other than the Bank, Bank Affiliates, or the agents or Employees of the Company or its Company
Affiliates, except to the extent any such disclosure is required by applicable law, expressly authorized by this
Agreement or a Cardholder Agreement; or expressly permitted by a written instrument signed by an authorized
representative of the Bank. The Company agrees to limit the internal access, disclosure and distribution of any and
all such Confidential Information of the Bank to those Company Affiliates, Employees, Cardholders, or agents of
the Company who have a need to know such information. The Company shall, at all times, have appropriate written
policies and procedures in effect to ensure that such Confidential Information of the Bank remains confidential,
secure, and protected from disclosure or use by any third party not affiliated with or retained by the Company or the
Bank. The Company will be responsible for the acts and omissions of the Company, its Company Affiliates,
Employees, Cardholders, and any other agents or representatives of the Company with respect to any and all
Confidential Information of the Bank.
Section 16.2 The term "Confidential Information," with respect to the Company and
regardless of whether the Agreement is then in effect, shall mean: (i) nonpublic personal information or financial
information about any Employee or Cardholder that the Bank receives from the Company, an Employee, or a
Cardholder, not including Card Account Statements, Consolidated Billing Statements, or any other Card Account
information resulting from or directly related to transactions or experiences between the Bank and the Company or
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its Employees or Cardholders; (ii) nonpublic financial information about the Company that the Bank receives from
the Company, not including Card Account Statements, Consolidated Billing Statements, or any other Account or
Card Account information resulting from or directly related to transactions or experiences between the Bank and the
Company; and (iii) any other documentation with respect to the Agreement or the Program that the Company has
designated as confidential or proprietary. The Bank agrees that it shall safeguard and not disclose any Confidential
Information of the Company or its Employees and Cardholders to any party other than the Company, Company
Affiliates, Employees, Cardholders, Bank Affiliates, or the employees, agents, or subcontractors of the Bank or its
Bank Affiliates, except to the extent the Bank is required or permitted to do so by applicable law, required or
permitted to do so by this Agreement or a Cardholder Agreement, or authorized to do so by the Company or its
applicable Employee or Cardholder. The Bank agrees to limit the internal access, disclosure and distribution of any
and all such Confidential Information to those employees, agents, or subcontractors of the Bank or a Bank Affiliate
who have a need to know such information. The Bank shall, at all times, have appropriate written policies and
procedures in effect to ensure that such Confidential Information of the Company, its Employees and Cardholders
remains confidential, secure, and protected from disclosure or use by any third party not affiliated with or retained
by the Bank or the Company. The Bank will be responsible for the acts and omissions of the employees, agents, or
subcontractors of the Bank or Bank Affiliates with respect to any and all Confidential Information of the Company,
its Employees and Cardholders.
Agreement.
Section 16.3 The provisions of this Article 16 shall survive the termination of this
ARTICLE 17
ASSIGNMENT AND SUBCONTRACTS; AMENDMENTS
Section 17.1 A Party may not assign this Agreement, transfer any right or delegate any duty
or performance under the Agreement without the other Parry's prior written consent, except as expressly provided in
the Agreement. The Bank may, without the Company's prior written consent, assign this Agreement or delegate its
rights and obligations under the Agreement to a Bank Affiliate. In addition, the Bank may, without the Company's
prior written consent, subcontract with other entities for the provisions of services under the Agreement. Any such
subcontracts shall not relieve the Bank of its obligations under this Agreement or alter the Company's rights against
the Bank under this Agreement, although all entities entering into a subcontract with the Bank shall be entitled to
rely on and benefit from the provisions of this Agreement as if they were the Bank (including, without limitation, the
limitations on liability and indemnities in the Agreement). This Agreement shall be binding upon and 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 17.2 This Agreement, including its applicable Schedules, Exhibits and Addenda,
constitutes the entire understanding between the Parties and it supersedes all prior agreements and negotiations.
(a) The Parties may agree to amend the Agreement through a written instrument referencing
this Agreement that has been signed by both Parties.
(b) The Bank may, at any time, in its sole discretion, and without advance notice or consent
of the Company, modify the Charge Limit of the Account or any Card Account as provided in Section 3.1
of the Agreement.
(c) The Bank will notify the Company as provided in Schedule A of any decrease in Program
compensation that might be received and paid by the Bank. The Company's consent for any such decrease
shall not be required when it results from a change made or required by a Card Association.
(d) The Bank will notify the Company of any other amendments to the Agreement that the
Bank might require, including those related to: (i) any law or regulatory requirement that applies to the
Bank; (ii) any change to the material features of the services or products offered under the Program; or (iii)
any change in the Program Fees and Charges received or imposed by the Bank in connection with the
Program. The Bank may amend this Agreement by sending a written notice to the Company at least thirty
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(30) calendar days before the effective date of an amendment. If the Company does not wish to accept any
such amendment, the Bank must receive a written letter of rejection from the Company no later than the
effective date for the amendment specified in the Bank's notice. The Company must send any such
rejection letter to the Bank using the address specified in its written notice to the Company or, if no address
is specified for this purpose in the Bank's written notice, using the address specified by this Agreement for
Bank notices. The Company's timely rejection of an amendment described in a written notice from the
Bank shall not terminate the Agreement or either Party's rights and obligations under the Agreement,
except as otherwise provided by this Agreement.
ARTICLE 18
NOTICES
Section 18.1 Except as otherwise provided herein, any notice or other communication to be
given under this Agreement shall be in writing, delivered by hand, overnight courier service, facsimile transmission
(with telephone confirmation by the sender of 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 subsequently designate in
writing to the other Party. All notices and other communications delivered by facsimile transmission must also be
delivered by hand, overnight courier service or U.S. mail. Notwithstanding the foregoing, the Bank may rely on
facsimile transmissions as though they are originals, and regardless of whether it has received telephone
confirmation from the sender.
Section 18.2 Electronic transmissions from the Company to an electronic mail address
designated by the Bank shall constitute written notices under this Agreement, shall be binding on the Company and
may be relied upon by the Bank if accepted in good faith. The Company understands that unencrypted electronic
mail messages are inherently insecure and that all such data communications and transfers can be monitored,
intercepted, rerouted, copied and read by others. The Company assumes all risk for any unencrypted electronic
communications the Company chooses to send the Bank.
Section 18.3 Any notice or communication will be effective against the Company 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.
ARTICLE 19
EFFECTIVE DATE AND TERMINATION
Section 19.1 This Agreement shall be effective as of the Effective Date first above written
and shall remain in full force and effect for an initial term of one (1) year from the Effective Date (the "Initial
Term"). This Agreement shall be renewed automatically for successive renewal terms of one (1) year each (each, a
"Renewal Term"). Either Party may terminate the Agreement by providing written notice of non -renewal to the
other Party at least one hundred twenty (120) calendar days prior to the end of the Initial Term or any Renewal
Term. The Initial Term and all Renewal Terms are collectively referred to as the "Term."
Section 19.2 Upon the expiration or any cancellation or termination of this Agreement, the
Account and all Cards and Card Accounts will be canceled by the Bank, the Bank's obligation to pay the Company
any incentive payments under the Pricing Schedule shall terminate, and the Company shall use reasonable efforts to
collect and destroy each Card. Upon the expiration any cancellation or termination of this Agreement, any Online
Services Software License or other licenses the Bank has granted to the Company for use in connection with the
Program shall automatically terminate and the Company shall immediately return to the Bank the original and all
copies of such licensed materials and all other confidential Program materials or documentation the Bank provided
to the Company.
Section 19.3 Either Party may terminate this Agreement following a breach by the other Party
that remains uncured thirty (30) calendar days after the non -defaulting Party sends the other Party written notice in
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the manner described in this Agreement. Notwithstanding the foregoing, the Bank may require immediate payment
of the entire balance owed on the Company's Account and all other amounts owing under this Agreement,
immediately terminate this Agreement or any Account or Card Account, refuse to permit further access to any
Account or Card Account, and/or without prior notice to the Company, apply any deposit account balances of the
Company held by the Bank or any Bank Affiliate toward any balance owed on the Company's Account or any other
amount owing hereunder, if:
(a) The Company fails to make payments as required by the Agreement or the Company
breaches any of its representations, warranties, covenants, or terms or conditions contained in this
Agreement;
(b) The Company has made any statement to the Bank or provided the Bank with any credit
information that is false in any respect;
(c) The Company (or any guarantor of the Company's obligations under this Agreement) is
in default of any other obligation it may owe to the Bank or any Bank Affiliate; or
(d) The Company becomes insolvent, subject to a receivership, or subject to a voluntary or
involuntary bankruptcy or similar proceeding, or the Bank, in good faith, determines that the financial
condition of the Company has become impaired.
Section 19.4 The Company agrees to advise the Bank promptly of any consolidation, merger,
sale or conveyance of the Company or any principal part of its assets, or the sale or conveyance of any controlling
interest in the Company, and upon any such happening the Bank shall have the right to terminate this Agreement
upon written notice to the Company.
Section 19.5 The expiration or termination of this Agreement shall not terminate, affect or
impair any rights or obligations of either Party with respect to any Transactions or event related to this Agreement
occurring prior to such expiration or termination, including, without limitation, obligations pursuant to Articles 14,
15, 16, 17, 18, 20, 21, 22, and 23, and obligations pursuant to the following Sections: 2.2; 2.3; 4.2; 8.3; 8.8; 10.1;
11.2; 11.3; 11.5; 11.6; 11.7; 11.8; 11.9; 12.1; 12.2; 12.4; 13.2; 19.2; and 19.5. Upon expiration or termination of this
Agreement, the Bank shall have the right to demand immediate payment of the entire balance owed by the Company
and any Cardholder and any default by a Cardholder shall be a default by the Company. The Bank shall have the
right to setoff any accounts the Company maintains with the Bank or its Bank Affiliates to recover payment of sums
due under this Agreement, and the Company waives any demands and notices that might otherwise be required to
the extent permitted by law.
ARTICLE 20
LIMITATION OF CLAIMS
Section 20.1 When the term "Company" is used in Article 20 and Article 21 on
"Claims" or in the provisions on "Limitations on Claims" or "Arbitration", that term means the Company and any of
the following who will be considered "Company Related Parties": any Cardholder, Company Affiliate, Employee,
or guarantor or authorized user of the Account, any Card, or any Card Account, and the heirs, successors, permitted
assigns and trustee in bankruptcy of the Company and any Company Related Parties. References to "Bank Related
Parties" in Article 20 and Article 21 includes Bank Affiliates and the officers, directors, agents, employees,
representatives, successors and assigns of the Bank and Bank Affiliates. "Bank Related Parties" also include
unaffiliated third parties that provide products, services or benefits to the Company or to the Bank in connection
with the Account, any Card Account and any Card or that have otherwise participated in the marketing or servicing
of the Account, any Card Account and any Card.
Section 20.2 Before the Bank brings a Claim against the Company, Bank must notify the
Company in writing of the Bank's Claim, including the amount of the Claim. Before the Company brings a Claim
against the Bank, the Company must notify the Bank in writing of the Company's Claim, including the amount of
the Claim. If the Bank has a Claim based on a payment obligation that the Company may have to the Bank: (1) the
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Bank's notification requirement will be considered satisfied by sending the Company a billing statement within the
time required by applicable law and regulation; and (2) the Company will be afforded the period of time allowed by
this Agreement and applicable law to make the payment before Bank commences court proceedings or arbitration.
If the Company has a Claim based on something the Bank or Bank Related Parties may have done or failed to do:
(1) the Company agrees to provide the Company's notification to the Bank within 90 days after the time the
Company could have first learned what the Bank or Bank Related Parties did or failed to do; and (2) the Bank will
be afforded a reasonable period of time to take corrective action before Company commences court proceedings or
arbitration.
Section 20.3 The Company and the Bank both agree, to the fullest extent allowed by law,
that: (i) Claims will not under any circumstances be pursued in Class Proceedings; (ii) the Bank waives the right to
bring or to participate in Class Proceedings against Company; and (iii) the Company waives the right to bring or to
participate in Class Proceedings against the Bank. If some other person initiates a Class Proceeding against the
Company, the Bank may not join that proceeding or participate as a member of that class. If some other person
initiates a Class Proceeding against the Bank, the Company may not join that proceeding or participate as a member
of that class. This paragraph is referred to below as the "Class Action Waiver."
Section 20.4 The sections of this Article 20 shall survive the termination of this Agreement.
ARTICLE 21
ARBITRATION
THIS CONTRACT CONTAINS AN ARBITRATION PROVISION WHICH MAY BE ENFORCED BY
THE PARTIES. PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY:
WITH LIMITED EXCEPTIONS, THIS ARBITRATION PROVISION ALLOWS EITHER PARTY TO
REQUIRE THAT ANY "CLAIM" (AS DEFINED ABOVE) BE RESOLVED BY BINDING
ARBITRATION.
ARBITRATION REPLACES THE RIGHT TO GO TO COURT AND TO HAVE A CLAIM
DETERMINED BY A JURY. OTHER RIGHTS YOU MAY HAVE IN COURT, SUCH AS DISCOVERY
OR APPEAL RIGHTS, MAY NOT BE AVAILABLE OR MAY BE MORE LIMITED IN ARBITRATION.
EXCEPT AS PROVIDED BELOW, THOSE OTHER RIGHTS ARE WAIVED.
YOU WILL NOT BE ABLE TO DO THESE TWO THINGS (IN COURT OR IN ARBITRATION): (1)
BRING A CLAIM AS A CLASS ACTION OR IN A REPRESENTATIVE CAPACITY; OR (2)
PARTICIPATE IN A CLAIM AS A CLASS MEMBER.
Section 21.1 Except as provided below: (I) the Company may unilaterally choose to have any
Claim that the Bank brings against the Company resolved through binding arbitration; and (2) the Bank may
unilaterally choose to have any Claim that the Company brings against the Bank (or the Bank and any of the Bank
Related Parties) resolved through binding arbitration. If the Company asserts a Claim against any Bank Related
Parties, but the Company does not also assert that Claim against the Bank, the Bank Related Party (or anyone
defending the Bank Related Party) may unilaterally choose to have that Claim resolved through binding arbitration.
If a court proceeding is commenced, the Party that commenced that court proceeding may unilaterally choose to
have any counterclaim, cross -claim, or third party claim brought in that proceeding resolved through binding
arbitration. If a Party chooses to have a Claim resolved by arbitration pursuant to this arbitration provision,
neither the Company nor the Bank will have the right to litigate that Claim in court, have a jury trial on that
Claim, or engage in pre -arbitration discovery, except as provided for in the applicable Arbitration Rules of
the selected Arbitrator(s) and as otherwise set forth in this arbitration provision.
Section 21.2 "Ordinary Claims" are not subject to this arbitration provision and may be
resolved through litigation. A Claim will be considered an "Ordinary Claim" if all three of the following are true:
(1) the only remedy being sought for the Claim is monetary damages; (2) the recovery being sought for the Claim is
less than $50,000, excluding interest and costs; and (3) the only parties to litigation to resolve the Claim will be the
Company, Company Related Parties, Bank and/or Bank Related Parties.
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Section 21.3 The arbitration administrator (an "Administrator") shall be either the American
Arbitration Association ("AAA") or National Arbitration Forum ("NAF"). Arbitrations shall be conducted in
accordance with the arbitration rules and procedures of the AAA or NAF which are applicable and in effect when
the Claim is initiated (the "Arbitration Rules"). However, if the Arbitration Rules are inconsistent with this
arbitration provision, this provision will prevail. If neither the AAA nor the NAF are available, Claims shall be
submitted to one or more comparable organizations. The parties shall agree in writing on which comparable
organization they wish to use. No other organization may be used.
Section 21.4 Arbitrations may be initiated pursuant to the Arbitration Rules of the selected
Administrator. One or more impartial arbitrators (the "Arbitrator(s)") will be selected pursuant to the Arbitration
Rules, but any arbitrator must be either a lawyer with at least ten years experience or a former judge. The Company
or the Bank may choose to have an arbitration hearing. The Company and the Bank may be represented by counsel
throughout any arbitration. Arbitration hearings will take place in the federal judicial district where the Company
resides at the time the Claim is initiated or some other place to which the Company and the Bank agree in writing.
The decision of the Arbitrator(s) will be final and binding. Any final decision of the Arbitrator(s) is subject to
judicial review only as set forth in the Federal Arbitration Act. Judgment upon an award rendered by the
Arbitrator(s) may be entered in any court of competent jurisdiction.
Section 21.5 If there is a dispute as to whether any claim, dispute or controversy is a "Claim"
subject to this provision, that dispute shall be resolved solely by the Arbitrator(s) (except as noted below with
reference to Class Proceedings and except that a court may decide whether a Claim is an Ordinary Claim).
Section 21.6 An arbitration pursuant to this provision may decide only the Company's
Claims, the Bank's Claims or the Claims of the Company Related Parties or Bank Related Parties. The Arbitrator(s)
shall have no authority to entertain or determine Class Proceedings. If the Arbitrator(s) decide they have authority
to entertain or determine any Claim brought in a Class Proceeding, that decision may be appealed to a court of
competent jurisdiction. If, despite this Agreement, Class Proceedings are allowed, those proceedings shall be
conducted only in a court of competent jurisdiction. The claims of other persons who may (or may not) have similar
claims may not be consolidated with any Claim. No arbitration will be consolidated with any other arbitration
proceeding without the consent of all parties. The only Claims that may be joined under this arbitration provision
are (1) those brought by the Bank and Bank Related Parties against the Company and Company Related Parties; or
(2) those brought by the Company and the Company Related Parties against the Bank and the Bank Related Parties.
Section 21.7 The Arbitrator(s) shall have no authority to award punitive damages.
Section 21.8 If any portion of this arbitration provision shall be found to be unenforceable,
that portion will be severed, and the rest of this arbitration provision will remain in effect. However, if the Class
Action Waiver is held to be invalid with respect to any Class Proceeding, the entire arbitration provision shall be
null and void.
Section 21.9 The Bank will reimburse the Company for the initial arbitration filing fee up to
$350 upon receipt of proof of payment, provided that the Company has initiated an individualized proceeding in
good faith and in accordance with this Agreement and provided that the Company has not initiated the Company's
proceeding in concert with any other persons or entities. All other fees will be allocated in keeping with the
applicable Arbitration Rules and applicable law. The Bank will also advance or reimburse other fees if the
Administrator or Arbitrator(s) determine there is good reason for requiring the Bank to do so or if the Company asks
the Bank and the Bank determines there is good cause for doing so. Each Party will bear the expense of the fees and
costs of that Party's own attorneys, experts, witnesses, documents and other expenses, regardless of which party
prevails.
Section 21.10 This arbitration provision shall survive repayment of the Company's extension
of credit, changes to the Account, any Card Account, any Card and this Agreement (although this provision itself
may be changed in accordance with the provisions set forth in Section 17.2 of this Agreement), the Bank's
assignment of the Account, any Card Account, any Card, the issuance of a Card or Card Account, the Company's or
the Bank's termination of the Account, any Card Account, any Card and the bankruptcy (or similar proceeding) of
any party.
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Section 21.11 This arbitration provision is made in connection with a transaction involving
interstate commerce, and shall be governed by and enforceable under the Federal Arbitration Act, 9 U.S.C. §§ 1
through 16, as amended. The Arbitrator(s) shall apply applicable substantive law consistent with the Federal
Arbitration Act, the National Bank Act and OCC regulations and applicable statutes of limitations, and shall honor
claims of privilege recognized at law.
Section 21.12 The Company may obtain AAA rules and forms by contacting the AAA at 335
Madison Avenue, Floor 10, New York, NY 10017-4605, by visiting their web site at www.adr.org, or, if you cannot
access the AAA web site, by calling the AAA at 800-778-7879. Company may obtain NAF rules and forms by
contacting the NAF at P.O. Box 50191, Minneapolis, MN 55405, by visiting their web site at www.arb-forum.com,
or, if Company cannot access the NAF web site, by calling the NAF at 800-474-2371.
Section 21.13 The sections of this Article 21 shall survive the termination of this Agreement.
ARTICLE 22
ONLINE SERVICES
Section 22.1 As specified in the Set -Up Forms the Company provides to the Bank, the Bank
will provide and make available the following services to the Company through one or more Online Services
Systems, all as more specifically described in the User Guide (the "Online Services").
(a) The Bank will provide and make available Online Account Information to the Company;
and
(b) The Bank will access the Online Services System and provide Online Services System
access to the Company in connection with the maintenance of:
(i) Card Accounts (including adding new Card Accounts based on existing ones
and canceling or modifying the applicable limitations or information related to any existing Card
Account); and
(ii) the Program Instructions.
Section 22.2 The communication of Program Instructions through the Online Services
System will constitute written notice of such Program Instructions in accordance with the applicable provisions of
the Agreement. The communication of Program Instructions through the Online Services System will also comply
with and satisfy any requirement in the Agreement for written documentation, including any requirement that the
Company provide a completed Application for a Card Account (except for an Application for the Account or the
first Card Account requested by the Company, which must be physically completed, signed and received by the
Bank).
Section 22.3 The Bank grants to the Company, and the Company accepts from the Bank, an
Online Services Software License, subject to and in accordance with the terms of this Article 22. This Online
Services Software License shall be effective while such Online Services Software is in use by the Company on the
Online Services System. The Company acknowledges and agrees that:
(a) The Company will not have any ownership or other proprietary rights in the Online
Services Software, the User Guide, and any other Online Services Materials;
(b) The Online Services Software and Online Services Materials are protected by the
copyright laws of the United States and the Bank's products and security relating the Online Services
Software and Online Services Materials are confidential and proprietary trade secrets and of substantial
value to the owner of the Online Services Software and the Online Services Materials, and their use and
disclosure must be carefully and continuously controlled by the Company and its Employees and
Cardholders;
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(c) The protected Online Services Materials must include all copyright, trade secret and any
other proprietary notices and legends on the initial copy of the Online Services Materials and on each copy
of the Online Services Materials that the Company is permitted to make;
(d) The Company will not:
(i) Remove, alter or obscure any trademark, trade names, logos, copyright or other
notice contained or included in any of the Online Services Software or Online Services Materials;
(ii) Transfer or license the Online Services Software or any portion of the Online
Services Software;
(iii) Change or modify the Online Services Software or the source code for the
Online Services Software;
(iv) Create derivative works from the Online Services Software or Online Services
Materials;
(v) Reverse engineer or attempt to reverse engineer the Online Services Software;
or
(vi) Attempt to discern the source code residing on the server on which the Online
Services Software is run;
(e) The Online Services Software will only be used by the Company and not used for or on
behalf of others;
(f) The Company will not disclose, publish, release, transfer or otherwise make the Online
Services Software or Online Services Materials available in any form to, or for the use or benefit of, any
other person or entity, other than its Employees and agents having need for such disclosure and only as
authorized in this Article 22;
(g) The Company will be fully responsible for compliance with all of the terms and
conditions of this Agreement by its Employees and agents; and
(h) The Company will not directly or indirectly copy, duplicate, or furnish to others any
physical or magnetic version of the Online Services Software or Online Services Materials or permit others
to do so.
Section 22.4 The Bank will generate and provide the Company with the Devices required for
access to the Online Services System, as further described in the User Guide and the Security Procedures for the
Devices. The Company agrees that the Security Procedures provide it with a commercially reasonable level of
security for use of the Online Services and access to the Online Services System. The Company and each user must
safeguard the Devices and keep them confidential and secure from unauthorized use. The Company must promptly
report any breach of security to the Bank. The Company acknowledges and agrees that the Bank may rely on, and
the Company will be bound by, any and all requests for Online Account Information and any and all Program
Instructions when accompanied by the applicable Devices and received in good faith by the Bank. The Bank has no
duty or responsibility to discover, audit, or report to the Company any breach of security, but the Bank will use
reasonable efforts to notify a Program Administrator if it learns about any such breach. The Bank will not incur any
liability to the Company for any failure or delay by the Bank in providing the Company with any such notice.
Section 22.5 The Company must use a Browser that complies with specifications set forth in
the User Guide. The Online Services may be accessed by Company through the public Internet. The Company
agrees to use the Online Services, as described in the User Guide, in compliance with all applicable laws and
regulations. The Company understands that Online Account Information is updated periodically and therefore, at
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Resolution No. 2010-83
any point in time, may not reflect information on the Bank's records at such time, as more fully described in the User
Guide. The Company acknowledges and agrees that the Online Services do not include any recommendation,
guaranty, representation or warranty whatsoever. The Bank shall not be responsible for errors in Online Account
Information provided to the Bank by non -Bank sources.
Section 22.6 The Bank recommends that the Company have appropriate security measures for
Internet use, including, a proxy server and/or firewalls to control and protect Internet access. The Bank shall not be
responsible for (i) inability to contact the Online Services through the Internet resulting from a problem with an
Internet service provider or online service provider or (ii) unknown hazards of Internet use. If the Company fails or
is unable to access the Online Services, the Bank's sole responsibility shall be to use its commercially reasonable
efforts to correct the problem and the Bank shall not suffer or incur any other liability in connection therewith.
Section 22.7 The Bank will not be responsible for any data that is lost or destroyed in
connection with the use of the Online Services. In addition, the Bank will not be responsible for the Company's
inability to use the Online Services due to a mechanical hard drive failure or other system failure (including, but not
limited to, a "lock -up" resulting from the Company's use of software). The Bank recommends that the Program
Administrator take the necessary measures to ensure that the Company performs daily back-ups of data used in
connection with the Online Services and the hard drives of the personal computers and/or the servers used in
connection therewith.
Section 22.8 In no event will the Bank have any liability whatsoever in connection with:
(a) Any application errors in or security breaches of any Browser;
(b) The Company's inability to use the Online Services or access the Online Services System
due to any Internet or Browser problem or any other cause beyond the Bank's control; or
(c) Any interception of any Online Account Information as a result of the use of the Internet.
Section 22.9 The Bank hereby reserves the right to suspend the Online Services without
notice to the Company. The Bank may terminate the Online Services upon notice to the Company.
Section 22.10 Any separate Online Business Banking Services Agreement between the
Company and the Bank shall supplement this Agreement, including the provisions of this Article 22, with respect to
the Online Services. If a provision of this Agreement conflicts or is inconsistent with any provision of the Online
Business Banking Services Agreement, then whichever provision is more protective of or beneficial to the Bank
shall control.
Section 22.11 The sections of this Article 22 shall survive the termination of this Agreement.
ARTICLE 23
MISCELLANEOUS
Section 23.1 This Agreement has been made, executed, and delivered in the State of
Nebraska. The Company hereby consents to the exclusive jurisdiction and venue of any local, state, or federal court
located within the County of Douglas, State of Nebraska, for any action or proceeding arising out of this Agreement.
The Company hereby waives personal service of any summons, complaint, or other process in connection with any
such action or proceeding and agrees that the service of any such summons, complaint or other process may be made
by first class mail to the Company address for written notices indicated below.
Section 23.2 This Agreement is binding upon the assigns and successors of the Company.
Except to the extent federal law is applicable, the interpretation, effect and validity of this Agreement shall be
governed by the laws of the State of Nebraska. If any provision of the Agreement is held invalid, illegal, or
unenforceable for any reason by a court of competent jurisdiction, the Parties agree that all other provisions of the
Agreement shall remain unimpaired and enforceable.
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Resolution No. 2010-83
Section 23.3 No duty, obligation, or breach of the Company under the Agreement shall be
waived or excused by the Bank, unless an authorized Bank representative has signed a written waiver or consent
specifically related to any such duty, obligation or breach. Any failure or delay by the Bank to exercise any right,
power, privilege, or remedy under the Agreement shall not operate as a waiver or consent in connection with any
different or subsequent breach.
Section 23.4 The article and 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 of the Agreement.
Section 23.5 The sections of this Article 23 shall survive the termination of this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first above written.
FIRST NATIONAL BANK OF OMAHA COMPANY: CITY OF PALM DESERT
By:
Print Name: Eldon Passey
Title: Vice President
Date:
a
197a-uzlicoLAA
BY
Print Name: 19 &111,t LtLt[C.
Title: Vice President of Finance
Date:
I O.'z2 10
Address for Written Notices:
First National Bank of Omaha
1620 Dodge Street Stop 3199
Omaha, NE 68197
Attention: FNCCC Legal Department
Facsimile: 402-602-6720
With telephone confirmation to:
# 402-602-6750
By:
Print Name:
Title:
Date:
Address for Written Notices:
City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, CA 92260
Attention: City Financial Manager
Facsimile: 760-341-4564
With telephone confirmation to:
# 760-346-0611
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Resolution No. 2010-83
SCHEDULE A
PRICING SCHEDULE
Bank Compensation to Company
Cards shall be eligible for the benefits and rewards available under the General Terms and Conditions established
from time to time in connection with the Maximum Rewards® for Business Program. Company has designated itself
to receive any such benefits and rewards.
Program Fees & Charg_es
Account and Card Account Fees
Minimum Finance A minimum finance charge of $1.75 will be added to the applicable Purchase and/or
Charge Cash Advance balance of the Account or a Card Account if the finance charge earned in
any billing cycle is less than that amount.
Cash Advance The greater of $15.00 or 3% of each Cash Advance will be added to the Cash Advance
Transaction Fee balance of the Account or Card Account for each Cash Advance transaction.
Cash Advance
Transaction Fee for Cash
Equivalent advances
Annual Fee
Late Fee
Overlimit Fee
Payment Dishonored Fee
Stop Payment Fees
Document/Statement
Copy Fees
Foreign Transaction Fee
Expedited Payment Fee
Expedited Delivery Fee
Lost/Stolen Card
Replacement Fee
The greater of $15.00 or 5% of each Cash Equivalent advance will be added to the Cash
Advance balance of the Account or Card Account for each Cash Advance transaction.
None
A $250.00 late fee will be added to the Purchase balance of the Account if the Bank
does not receive the required full payment of an amount due from the Company by its
applicable Payment Due Date, as detailed on a Consolidated Billing Statement or Card
Account Statement provided to the Company.
A $35.00 late fee will be added to the Purchase balance of a Card Account if the Bank
does not receive the required full payment of an amount due for that Card Account by
its applicable Payment Due Date, as detailed on a Card Account Statement.
An overlimit fee of $39.00 will be added to the Purchase balance if the outstanding
balance of an Account or Card Account, including finance charges and fees, exceeds the
Charge Limit or Transaction Limit at any time during a billing cycle.
A fee of $35.00 will be added to the Purchase balance if any payment in any form on
the Account or a Card Account is dishonored or returned unpaid to the Bank for any
reason.
A fee of $35.00 will be added to the Purchase balance for any stop payment request
made by the Company or any Cardholder.
A fee of $5.00 will be added to the Purchase balance for each sales draft copy requested
by the Company or a Cardholder (unless related to an actual billing error), and for each
duplicate copy of a Consolidated Billing Statement or Card Account Statement
requested by the Company or a Cardholder.
A fee equal to 3% of each foreign transaction, after conversion to U.S. Dollars, will be
assessed on all transactions made in currencies other than U.S. Dollars. Fees for foreign
Cash Advances will be added to the Cash Advance balance of the Account or Card
Account. Fees for foreign Purchases will be added to the Purchase balance of the
Account or Card Account.
A fee of $15.00 will be added to the Purchase balance of the Account or a Card Account
each time the Company or a Cardholder has the Bank initiate an expedited payment by
telephone.
A fee of $15.00 will be added to the Purchase balance of the Account or a Card Account
each time the Company or Cardholder requires expedited delivery by the Bank of
additional or replacement Cards.
A fee of $10.00 will be added to the Purchase balance of the Account or a Card Account
each time the Company or Cardholder requires that the Bank replace a lost or stolen
Card.
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Product Training Fees
No charge for one train -the -trainer product training session per product, by
teleconference and/or webinar. Additional training sessions by teleconference and/or
webinar, $150 per hour. Any on -site training, $1,000 plus expenses, per person, per day
of training.
Data Feed Fees
"Data Feeds" include detailed Account and Card Account information that the Bank provides to the Company
through a standard file transfer protocol, for use by the Company in its internal systems (to provide detail about
transactions, debit and credit adjustments, and additional transaction -level data available through addenda records
and hierarchy records).
For purposes of the Agreement, the Account and Card Account information based on the Bank's system of record
shall be shown through Consolidated Billing Statements and Card Account Statements, not the information or data
that the Company may obtain through Data Feeds. The Company agrees that the Account and Card Account
Information that the Bank provides through Consolidated Billing Statements and Card Account Statements shall
control over any inconsistent information the Company might receive through Data Feeds.
Data Feeds
Card Association Data Feeds: One-time set up fee of $300.00, plus an Annual Data
Feed Fee of $360.00, plus a fee based on $0.016 per transaction (including each
transaction, adjustment, addenda record, and hierarchy record).
Periodic Rates
ACCRUAL OF FINANCE CHARGES: There is no grace period before periodic rate finance charges begin to
accrue on Cash Advances or Transaction fees related to a Cash Advance. Periodic rate finance charges accrue on
Cash Advances and their related Transaction fees from the date of the Cash Advance or the first day of the billing
cycle in which the Cash Advance is added to the Account and/or Card Account, whichever is more recent. No
periodic rate finance charges will apply to Purchases and other Program Fees and Charges that are paid in full on or
before their applicable Payment Due Date, as shown by the Consolidated Billing Statements and/or Card Account
Statements. Periodic rate finance charges will accrue on Purchases, and on Program Fees and Charges added to the
Account and/or Card Account as Purchases, beginning with the first day that follows the applicable Payment Due
Date for each such Purchase or Program Fee and Charge.
PERIODIC RATE FINANCE CHARGES; VARIABLE RATE INFORMATION: Periodic rate finance charges
will be calculated using daily periodic rates, which correspond to certain Annual Percentage Rates. These rates may
also be different for Purchases and Cash Advances. These rates may be variable. A variable Annual Percentage Rate
is determined by adding the applicable Margin to the applicable Index. The daily periodic rate is 1/365th (1/366th
during leap years) of the Annual Percentage Rate.
The Index is the highest U.S. Prime Rate as published in The Wall Street Journal during the 90 days immediately
preceding the last day of each calendar month (the determination date). The Index will be effective for the entire
billing cycle that ends in the second month after the determination date. For example, if the applicable Statement
Date ends in July, the Bank will use the Index determined on May 3151. An increase in the Index will increase the
applicable Annual Percentage Rate and daily periodic rate, which may increase the payment due on the Account
and/or Card Account.
The rate for Purchases on the Account and Card Accounts is a fixed Annual Percentage Rate of 19.99% (a daily
periodic rate of 0.0548%).
The rate for Cash Advances on the Account and Card Accounts is a fixed Annual Percentage Rate of 19.99% (a
daily periodic rate of 0.0548%).
FINANCE CHARGES AND BALANCE CALCULATIONS: The Account and/or Card Account will generally
have monthly billing cycles, but the first billing cycles may be more or less than one month. The Bank uses the
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City of Palm Desert Commercial Card Agreement v3 DOC
Resolution No. 2010-83
Average Daily Balance method to compute a portion of the Finance Charges on the Account and/or Card Account.
The Bank calculates periodic rate finance charges separately for each Transaction Category.
(A) To compute Billed Periodic Rate Finance Charges:
(1) For each Transaction Category, the Bank multiplies the Daily Balance (see below) by the applicable
daily periodic rate for each day of the billing cycle; then
(2) The Bank adds together all of the products calculated in (1) above.
(B) To compute the Daily Balance for each Transaction Category:
(1) The Bank takes the Beginning Balance of each day;
(2) Adds any applicable new Transactions (such as Cash Advances and related Transaction fees,
delinquent Purchases and other Program Fees and Charges, and debit adjustments)***;
Subtracts any applicable payments, credits, or credit adjustments; and
(3)
(4) The Bank treats a credit balance as a balance of zero.
*** For Card Accounts where Cardholders are jointly and severally liable with the Company or where
Cardholders are not jointly and severally liable but are required by their Company to make payments, the annual
fee, credit life fee, SecureCredit°° program fee and, in certain circumstances, the overlimit fee, are not included
in the Daily Balance calculation until the first day of the next billing cycle. For Card Accounts where
Cardholders are not jointly and severally liable with the Company and are not required by their Company to
make payments, the annual fee, credit life fee, SecureCrede program fee and, in certain circumstances, the
overlimit fee are included in the Daily Balance calculation on the first day of the billing cycle in which they
post to the applicable Account and/or Card Account.
The Bank adds the amount calculated in accordance with (A)(1) above to the Daily Balance and this amount
becomes the Beginning Balance for the next day.
On the Consolidated Billing Statement and/or Card Account Statement, the Bank will calculate an Average Daily
Balance for each Transaction Category by adding all the Daily Balances for that Transaction Category and dividing
that amount by the number of days in the billing cycle. If you multiply the Average Daily Balance for a Transaction
Category by its daily periodic rate and multiply the result by the number of days in the billing cycle, the total will
equal the Billed Periodic Rate Finance Charges for that Transaction Category, except for minor variations due to
rounding.
Cash Advance and foreign Transaction fee finance charges, if any, are added to the Billed Periodic Rate Finance
Charges for all Transaction Categories and are shown on the Consolidated Billing Statement and/or Card Account
Statement as Total Billed Finance Charges. The Annual Percentage Rate shown on the front of the Consolidated
Billing Statement and/or Card Account Statement is based on the Total Billed Finance Charges. This Agreement
provides for daily compounding of finance charges and fees.
MINIMUM FINANCE CHARGE: If periodic rate finance charges are billed in any billing cycle, the minimum
Billed Periodic Rate Finance Charge will be as shown above in the Account and Card Account Fees portion of this
Schedule. The Bank may allocate the minimum Billed Periodic Rate Finance Charge among the various Transaction
Categories in the manner that the Bank selects from time to time.
PAYMENTS: Payment in full of all Transactions and Program Fees and Charges for each billing cycle shall be
made on or before the applicable Payment Due Date for each respective billing cycle. Each Payment Due Date for
each respective billing cycle will be detailed on the Consolidated Billing Statement and/or Card Account
Statements.
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Resolution No. 2010-83
SCHEDULE B
Company Address for Delivery of Consolidated Billing Statements. Card Account Statements for Unassigned
Cards, and Informational Card Account Statements (see && 9.1 and 9.2):
Company Name: City of Palm Desert
Attn: City Financial Manager
Company Mailing Address: 73-510 Fred Waring Drive, Palm Desert, CA 92260
Liability of Company and/or Cardholders:
Company is the only liable party for the Account and all Card Accounts and the only party that will make
Account and Card Account payments: The Company shall be solely liable to the Bank for payment of all
amounts due for the Account and all Card Accounts, including any Unassigned Cards requested by the Company.
The Bank, using the delivery method the Company requested above, will provide the Company with a Consolidated
Billing Statement and/or Card Account Statements for payment of the Account and all Card Accounts. The Bank
will also provide Cardholders with informational Card Account Statements about the use of their Card Accounts.
Payment Due Date (see &11.4):
For Card Accounts for which the Company is solely liable, the Payment Due Date shall be 25 days after the
Statement Date disclosed on the applicable Consolidated Billing Statement or applicable Card Account
Statement(s).
Payment Method (see 611.4):
By completing the deposit account information below and signing the Agreement, the Company authorizes the
Bank, on each Payment Due Date, to initiate a recurring electronic debit (charge) against the designated deposit
account in payment of the full amount required from the Company in its Consolidated Billing Statement and/or Card
Account Statements for the prior billing cycle. To cancel the Company's enrollment in this automatic payment plan,
the Company must send a written cancellation notice to the Bank at 1620 Dodge Street, Omaha, NE 68197 Attn:
Accounting Research and then allow the Bank a reasonable opportunity to act on the Company's cancellation
instructions. Even if the Company cancels its enrollment in the automatic payment plan, the Company understands
that it must still make payments to the Bank in the time, manner and amount otherwise required by the Agreement.
Name of Depository Institution for Company:
ABA/Routing Number of Company Account:
number on lower left corner of check)
Company's Deposit Account Number:
(9-digit
If the deposit account information above is not completed, the Company agrees to make payment to the Bank in the
time, manner and amount required by the Agreement and the Company's Consolidated Billing Statements and/or
Card Account Statements, either by mailing a check to the Bank at the address provided on the Company's
Consolidated Billing Statements and/or Card Account Statements or by initiating individual electronic payments or
wire transfers to the Bank, with the Bank's assistance or using instructions and account information separately
provided by the Bank.
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Resolution No. 2010-83
EXHIBIT 1
Comaanv Affiliates/Guaranteed Account(s)
Company authorizes and directs Bank to issue Cards and Card Accounts to Employees of the following Company
Affiliates:
2.
3.
4.
5.
6.
7.
8.
9.
10.
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1F
Resolution No. 2010-83
EXHIBIT 2
Company Marks
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Resolution No. 2010-83
EXHIBIT "C"
PROGRAM ADMINISTRATOR DESIGNATION FORM
Capitalized terms not otherwise defined in this form have the meanings set forth in the Commercial Card
Agreement between First National Bank of Omaha (the "Bank") and the undersigned business or governmental
entity (the "Company"), dated as of , The Company hereby appoints and designates
each person named below as a Program Administrator in connection with the Program established for the
Company:
Print/Type Name: PAUL S. GIBSON, FINANCE DIRECTOR
Mailing Address:
Telephone:
Facsimile:
E-Mail:
Print/Type Name:
Mailing Address:
Telephone:
Facsimile:
E-Mail:
Print/Type Name:
Mailing Address:
Telephone:
Facsimile:
E-Mail:
The Company warrants and certifies that each person named above is individually authorized by all
necessary action of the Company to: (i) submit Applications and related requests for Cards and Card Accounts;
(ii) request Credit Limits and Transaction Limits for Cards and Card Accounts; (iii) request cancellation or
suspension of Cards and Card Accounts; and (iv) perform other administrative duties related to the Program.
The Company also warrants and certifies that the appointment of each person named above as a Program
Administrator does not violate the Company's articles of incorporation, articles of formation, articles of
organization, charter, partnership agreement, by-laws or any other document or agreement pursuant to which
the Company is organized, any provision of applicable law, regulation, order, or rule of any governmental
agency, or any court decision.
Company Name: CITY OF PALM DESERT, CALIFORNIA
[Print or Type Company Name]
By:
Title:
Date:
CITY CLERK