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03-100 , • . Resolution No. 03-100 RESOLUTION AUTHORIZING EXECUTION OF AN ATEEMENT WITH LASALLE BANK NATIONAL ASS CIATION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that David M. Dorgan, City Manager, and Dolonna Mecum, City Clerk, be and are hereby authorized and directed to execute an agreement on behalf of the City of Elgin with LaSalle Bank National Association for a procurement card program, a copy of which is attached hereto and made a part hereof by reference . s/ Ed Schock Ed Schock, Mayor Presented: April 9, 2003 Adopted: April 9, 2003 Omnibus Vote : Yeas : 6 Nays : 0 Attest : s/ Dolonna Mecum Dolonna Mecum, City Clerk . , , . . , LASALLE BANK NATIONAL ASSO9ATION COMMERCIAL CARD AGREEMENT FOR STATE AND LOCAL GOVERNMENT UNITS This Agreement is made as of April 9, 2003 , between LaSalle Bank National Association (the "Bank") and City of Elgin , a state or local government unit duly created and existing under the laws of the State of Illinois (the "Customer"). WHEREAS, the Customer desires to purchase goods nd services and has requested that the Bank open Card Accounts and/or Accounts and issue Cirds (as such terms are hereinafter defined), and provide or arrange for the provision of billiiig and other services as described herein; and WHEREAS, the Bank is a member of one or more cred t card corporations or organizations (such corporations and organizations, including their affiliat s and subsidiaries, are collectively referred to herein as the "Card Association"); and WHEREAS, the Bank is willing to issue Cards to Employees, open Card Accounts and/or Accounts for the Customer and provide or arrange for billing and other services to the Customer; Now, THEREFORE, in consideration of the premises and mutual agreements set forth herein, the Customer and the Bank agree as follows: SECTION 1. DEFINITIONS. The following terms used in this Agreement shall have the following meanings: a. "Account" means an account opened by the Customer pursuant to this Agreement, and not associated with any Cards, whiCh may be used by Employees when making Purchases that are to be billed to the CustomOr. b. "Advance" means the use of a Card to obtain a cash advance from participating financial institutions, ATMs and point asale terminals. c. "Application" means an application tip the Bank for issuance of a Card or the opening of an Account in the form and with such content as the Bank shall specify from time to time. d. "Authorizer" means any authorizatioi facility or processor to whom any person, firm or corporation authorized to honor Crd Association cards is required to direct inquiries as to whether or not a Transaction my be consummated. e. "Authorizing Law" means State law r charter provision under which the Customer is authorized to enter into, and perform its obligations under, this Agreement. f. "Card" means a Card issued by the Bank to an Employee (or as otherwise specified by Customer) under the Program and branded with a Card Association brand. Any reference to a Card shall include the related Card Account, and any use of a Card shall also mean use of the related Card Account. g. "Card Account" means the account associated with a specific Card, and which shall reflect all Transactions charged to that Card Account and all Transactions made using such Card or Card Account. h. "Card Account Statement" has the meaning set forth in Section 8. i. "Card Agreement" means any agreentent, including any written policy adopted by the governing body of the Customer by resolution to the extent required by the applicable Authorizing Law, which governs the Employees' use of the Cards, Card Accounts and Accounts, in such form as the Customer, in its sole discretion, may determine from time to time. Notwithstanding the fnregoing, the Card Agreement shall be consistent with the terms of this Agreement and the requirements of applicable State law. j. "Cardholders" means the Employees Who have received or use Cards. k. "Charge Limit" applies to the Accounts and Card Accounts and means the maximum aggregate unpaid amount that may be outstanding on the Customer's Account, Accounts and Card Accounts at any time for all Trat+ctions. 1. "Credit Line" is established for ea1.1 Account and Card Account and means the maximum aggregate unpaid amount that may be outstanding on such Account or Card Account at any time for all Transactions. m. "Customer's Account" means the account opened by the Bank in the Customer's name, pursuant to which the Bank shall issue Cards to Employees and open Accounts, and which shall reflect all Transactions. n. "Employees" means the officials, officers, employees or agents of, or other individuals designated or authorized by, the ustomer to receive a Card or use an Account or Card. o. "Governing Body" means, if the Customer is a local unit of government, the Customer's council, commission, board of trnstees, board of education or other governing board, body or elected official under appliable State law. p. "Legally Available Funds" means the Customer's funds that are duly budgeted and appropriated in accordance with applicable State law and legally available for the purpose of paying the Bank for Transactions and related charges as provided in this Agreement. - 2 - . ' q. "Maximum Combined Limit" means such maximum amount for all commercial or purchasing card agreements, including this Agreement, that the Customer has entered into under Authorizing Law. r. "Merchant Category Code" means a 4ode assigned, in accordance with the Card Association's merchant code materials, to any person, firm or corporation authorized to accept Cards, Card Accounts or Accounts in order to identify the principal trade, profession or line of business of such party. s. "Operating Regulations" means the Operating regulations of the Card Association and the Bank, if any, as in effect from time to time. t. "Payment Due Date" has the meaning et forth in Section 10. u. "Program" means the LaSalle Commercial Card Program established for the Customer by the Bank, pursuant to which the Bank shall issue Cards to Employees and open Accounts for the Customer. v. "Program Administrator" means ary of the individuals whom the Customer has designated on a Program Administrator Designation Form (substantially in the form supplied by the Bank) as being authorized o approve Applications, set Credit Lines, specify the types of Transactions Employees a e authorized to make, and perform certain administrative duties as described in t is Agreement. Each Program Administrator Designation Form shall identify t e office held by each Program Administrator named therein, if any, and include a sp cimen of the signature of each such person. w. "Purchase" means the use of a Card, a Card Account or an Account to pay for goods or services. x. "State" means the State of Illinoil . y. "Transaction" means any Purchase or Advance. z. "Transaction Limits" means the parameters established for each Account and Card Account by the Program Administrator and the Bank and may include (but shall not be limited to) (i) limits on number of Transactions for the related Account, Card or Card Account on a daily, weekly and/or monthly basis, or any combination thereof as requested by the Customer; (ii) a dollar limit for each Transaction using the related Account, Card or Card Account and/or an aggregate dollar limit for daily, weekly and/or monthly Transactions; (iii) the types of merchants or Merchant Category Codes at which the Account, Card or Card Account may be used; and (iv) such other parameters as may be agreed upon by the Bank and the Program Administrator. aa. "Unauthorized Transaction" means any Transaction not for goods or services for the official business of the Customer. - 3 - I _ SECTION 2. USE OF THE CUSTOMER'S ACCOUNT,ACCOUNTS AND CARD ACCOUNTS The Customer's Account, Accounts, Cards and Card Accounts are intended only for the Customer's official business, and the Customer shall instruct Employees and Cardholders that Accounts, Card Accounts, and Cards shall be used only for selected types of Transactions specified by the Program Administrator and related to the Customer's official business as defined by Customer policy. The front of each Card issued shall indicate that it is a commercial card, shall show the name of the Cardholder (unless otherwise specified by the Customer) and, at the Customer's option, the name of the Customer. The Bank shall have no duty to question the purpose or nature of any Transaction or the use of any Account, Card Account or Card. SECTION 3. DESIGNATION OF PROGRAM ADMINISTRATOR. The Customer shall designate one or more representative(s) as Program Administrator(s) who shall each be authorized to administer the Program on behalf of the Customer. Each Program Administrator may act individually to (i) designatle Employees who are authorized to receive Cards, (ii) establish or change the Credit Line requested by the Customer for any Employees or Cardholders, (iii) direct the Bank to revoke or suspend any Card or Account, and (iv) otherwise act as the Customer's authorized representative in administering the Program and resolving any disputed Transactions. Except as otherwise provided herein, the Bank will 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 appointing such person as a Program Administrator. The Customer agrees to notify the Bank of any change in any Program Administrator by submitting a new Program Administrator Designation Form setting forth the changes to be made (including the name, office (if any) and specimen signature of any new Program Administrator). Each Program Administrator Designation Form shall be effective upon receipt of such form by the Bank. The submission by the Customer of a Program Administrator Designation Form shall constitute a representation by the Customer that the individual(s) named therein have been duly authorized by the Governing Body (or have been designated by an official or officer who has been duly authorized by the Governing Body) for he transaction of the Customer's Program-related business with the Bank. SECTION 4. ISSUANCE OF CARDS AND ACCOUNTS. a. Promptly following the execution of this Agreement, (i) the Bank and the Customer shall agree upon the date when the Bank shall begin issuance of the Cards and, if applicable, any Accounts; (ii) the Customer shall advise the Bank where and to whom to send the Cards and scheduled periodic statements, invoices and reports with r spect to the Program and Cards, and (iii) the Customer shall inform the Bank of any Merchant ategory Codes to be precluded from Card usage pursuant to Section 6.a. hereof, and such ether infoiniation as the Bank may reasonably request. - 4 - b. The Customer shall deliver to the Bank a co pleted Application, signed by the Program Administrator, for each Employee who shall be issu:d a Card and, if applicable, for any Account to be established. The Program Administrator shall eep copies of such Applications in a secure area under the Customer's control. c. The Bank shall promptly issue a Card to each Employee for whom the Program Administrator submits to the Bank a completed Application. The Bank will promptly notify the Program Administrator in writing of the issuance of an Acco nt number (and its expiration date) upon the Bank's receipt of a completed Application therefor. Where emergency issuance is reasonably requested by the Customer, the Bank will endeav• to issue Cards within seventy-two (72) hours. The Bank shall issue a new Card in replacemen of each outstanding Card prior to the expiration date of such Card unless, at least thirty (30) dal s prior to the expiration date of an outstanding Card, the Bank receives notice from the Custom;r not to issue a renewal Card. The Bank will issue a renewal notice for each outstanding Account number prior to the expiration date thereof unless, at least thirty (30) days prior to the expiration date of such Account number, the Bank receives notice from the Customer not to renew suc Account number. d. The Bank shall send the Cards to Employees by first class mail to the address designated on the respective Application or, at the election •f the Program Administrator, to the Program Administrator. Each Card and notice of the issuance (or renewal) of an Account number shall be accompanied by any disclosures or other materials •eemed necessary by the Bank. The Bank may institute any security procedures regarding the is.uance and activation of Cards and Account numbers that the Bank may deem necessary or desirable. e. The Customer may, in its discretion, require E ployees to sign a Card Agreement, and the Bank shall have no liability in connection there ith. In the event of any conflicts between this Agreement and the Card Agreement, this Agree ent shall govern. f. Except for the cancellation or closure of any C., d or Account (which is covered in Sections 6 and 11 of this Agreement), the Customer shall promptly advise the Bank in writing of any changes to be made with respect to any Card, Card Acco t or Account. SECTION 5. TRANSACTION LIMITS AND CREDIT LINES. a. The Bank will assign maximum Transaction Limits and a Credit Line to each Account and Card Account, as designated by the Program A d ministrator. b. From time to time, the Bank shall establish ans advise the Customer of the Charge Limit. c. Promptly upon the request of the Program Ad inistrator, but no later than five (5) business days following receipt of written notice from the Program Administrator, the Bank shall increase or decrease any Transaction Limits or Cr:dit Lines in accordance with such request. - 5 - d. The Bank, or any Authorizer, may refuse to authorize any Transaction referred to it if: (i) permitting the Transaction would cause any of the Transaction Limits or Credit Lines applicable to the Account or Card Accoinn to which such Transaction will be charged to be exceeded; or (ii) the Bank believes that it is an Unauthorized Transaction; or (iii) the Customer fails to make any payment required by this Agreement by the Payment Due Date; or (iv) the sum of the amount of any Transaction and the then outstanding principal balance (including Transactions authorized but not yet posted) in the respective Account or Card Account would exceed any applicable Transaction Limits or Credit Line therefor; or (v) the sum of the amount of such Transa tion and the then aggregate amount of outstanding principal balances (including Transac ions authorized but not yet posted) in all Accounts and Card Accounts would exceed the harge Limit; or (vi) the Transaction otherwise varies from parameters agreed upon by the Customer and the Bank, including if an Employee attempts to make a Purchase at an establishment having a Merchant Category Code specified by the Customer pursuant to Section 6.a. as being ineligible for selling goods and services to Employees. The Customer acknowledges that the Operating Regulations do not require prior authorization from the Bank for some Transactions and, accordingly, the Transaction Limits for any Account, Card or Card Account, the Credit Lines relating thereto, and the Charge Limit for the Customer may be exceeded. If the Charge Limit is exceeded at any time, the Customer shall immediately remit payment to the Bank for such excess. SECTION 6. USE OF CARDS AND ACCOUNTS. a. The Customer agrees that the Accounts, Card Accounts and Cards are to be used by Employees only for Transactions relating to the perforMance of its official business under applicable State or local law, subject to this Agreement, the Operating Regulations and the terms and conditions of any Card Agreement, and the Custbmer shall so instruct Employees. Accordingly, from time to time, the Customer may notify the Bank of certain Merchant Category Codes of trades, professions or lines of business to be precluded from selling goods or services to Employees hereunder. , b. The Customer may direct the Bank to cancel n y Card or Account at any time for (1 any reason whatsoever. In order to cancel an Account r a Card of an Employee who will continue to be employed by the Customer after such cance lation, the Customer must notify the - 6 - I . Bank accordingly in writing. In the event that any Card is canceled by the Customer due to the termination of the employment of any Employee, the Customer must notify the Bank in writing of such cancellation within two (2) business days of the earlieF of(i) the Employee's termination of employment, or (ii) the date the Employee gives or receives oral or written notice of immediate or pending termination of employment. c. The Bank may cancel or suspend the right to use any Card or Account in its sole and absolute discretion at any time if the Bank suspects fraud oi misuse. The Bank shall have no obligation or responsibility to the Customer, any Employee Or any user of a Card or an Account in the event that any person, firm, corporation or Authoriier refuses to honor a Card, Card Account or Account, or if the Bank refuses or fails to authorize the use of any Card, Card Account or Account. SECTION 7. CARD REQUIREMENTS, USE OF CARD ASSOCIATIN MARKS. a. Each Card issued under the Program shall be Card Association card complying with the applicable requirements and specifications for c mmercial cards in the Operating Regulations. Subject to such requirements and specificatiohs, each Card may bear such other language or symbols as the Bank may deem appropriate. b. At the request of the Bank, the Customer shall provide the Bank with copies of any materials accompanying or relating to the use of the Card which shall be provided by the Customer to Employees from time to time. All such materials shall identify the Bank as the Issuer of the Card and shall prominently indicate that the Card is a Card Association card. The Customer acknowledges ownership of the Card Association marks by the Card Association and will do nothing inconsistent with such ownership. SECTION 8. STATEMENTS AND REPORTS. a. Unless the Customer requests otherwise, the Bank shall prepare for each billing cycle an individual statement for each Card Account containing a new balance ("Card Account Statement"). The Bank shall mail each Card Account Statement to the Employee holding such Card Account at the address designated on the Application for such Employee (or as otherwise specified in the Application for such Card), together with disclosures or other materials deemed necessary or appropriate by the Bank. b. For each billing cycle, the Bank shall send to the Program Administrator and/or any representatives designated by the Program Administrator (e.g., department managers) a consolidated statement setting forth the balances and Tranaction activity of the Accounts and Card Accounts. All statements received by the Customfr from the Bank will be promptly examined by the Customer and, absent written notice from the Customer to the Bank within 60 days of receipt thereof, all statements shall be conclusi ely deemed to be correct, and the Customer shall be precluded from asserting against th Bank any errors or discrepancies regarding such statements (including any erroneous billings as described in Section 10.e). - 7 - . . c. At the request of the Customer, the Bank may compile certain information about the sellers of goods and services accepting the Cards and Accounts which may be provided by such sellers, such as Merchant Category Codes and information identifying such sellers as unincorporated business enterprises or business enterprises owned by certain minorities or women. The Bank cannot guaranty the accuracy of any such information and by conveying such information to the Customer does not undertake to perfOrm any reporting or compliance obligations of the Customer pursuant to law, regulation or government contract or grant. d. The Customer shall furnish to the Bank such information about the Customer's operations, fund balances, cash flow statements and financial condition as the Bank may reasonably request from time to time, including, without limitation, its financial statements and total budget for each of its fiscal years during the term 6f this Agreement. The Bank is authorized to investigate and obtain information about the Customer as the Bank deems appropriate, subject to any applicable State or local law regarding confidentiality of the Customer's meetings and records. Information with respect t6 the Customer or Cardholders may be provided by the Bank to the Card Association, its members institutions and contractors, and credit reporting agencies. SECTION 9. DISPUTES WITH MERCHANTS. If the Customer has any questions, problems or dispu es concerning the quality of goods or services purchased by means of any Card, Card Account cr an Account, the Customer agrees to pay the Bank the amount of the related Purchase and contact the seller directly to resolve such question, problem or dispute. The Customer acknowledges that the Bank is not liable for the quality of any such goods or services. If the dispute cannot be settled directly with the merchant, then the Customer can request the Bank to process a chargeback subject to the limits of the Operating Regulations. SECTION 10. LIABILITY FOR TRANSACTIONS, FEES AND OTHER CHARGES. a. The Customer authorizes and directs the Bank to extend credit to it or for its account from time to time by paying the amount of Transactions through the use of any Card, Card Account or Account, and the Customer agrees to be primarily liable for and pay the Bank for all such Transactions and all applicable Program fees, charges and applicable interest rates related thereto as determined according to the pricing schedules furnished by the Bank to the Customer. The Bank may amend such pricing schedules from time tO time upon thirty (30) days' prior written notice to the Customer. Such amounts shall be due and payable from Legally Available Funds in full for each periodic billing cycle on or before the applicable Payment Due Date. The Bank and the Customer shall mutually agree upon (i) the length of the periodic billing cycle, which may be weekly, bi-weekly or monthly, (ii) the nuMber of days used to determine the Payment Due Date following the end of each billing cycle, bit in no instance shall such Payment Due Date exceed any limit prescribed by State law from the date on which the payment invoice l. is sent to the Customer, and (iii) the method of pay ent which may be by check or pre-authorized debit to the Customer's deposit account at t e Bank or an affiliate of the Bank. The billing date applied to each periodic billing cycle sh 11 be assigned by the Bank. The - 8 - Customer may not deduct or withhold, without the prior written approval of the Bank, any credit, chargeback, disputed or questioned amount from the aggregate amount due when making payment. If the Customer reasonably believes that any Transaction shown on its periodic statement is in error, the Customer shall notify the Bank, and the Bank will make any appropriate adjustment on the Customer's next periodic statement. All payments by the Customer shall be remitted in U.S. dollars. Any amount due and owing by the Customer and not received by the Bank on or before the Payment Due Date shall be charged interest at the lesser of the maximum rate permitted by applicable State law for obligations of the nature created by this Agreement or the Bank's then current rate of interest, as shown on the pricing schedules furnished by the Bank to the Customer, until paid. The Customer shall be obligated 1lo pay any such interest solely from Legally Available Funds. If the Customer fails to pay to the Bank any amount due under this Agreement, then the Bank is authorized to the extent permitted by applicable State or local law, without prior notice to the Customer, to apply account balances of the Customer held by the Bank or an affiliate of the Bank toward any balance owed hereunder. Payments received at the Bank's designated payment processing center after 12:00 Noen Central Time on a Bank business day (or on any day which is not a Bank business day) will be credited to the Customer's Account (and the underlying Card Accounts) on the next Bank business day. The Bank can accept late payments, partial payments or payments marked with restr:ctive endorsements without losing any of its rights under this Agreement. b. The Customer shall be liable for all uses of, and Transactions made using the Accounts, Cards and Card Accounts, including, with ut limitation, any Unauthorized Transactions (which include any Transactions made using lot or stolen Cards), that occur before the Customer notifies the Bank in accordance with Section 61b. or 11.a. that the Card Account or Account should be cancelled. It is expressly agreed and understood that a Card in the possession of an individual to whom the Card was issued or authorized by the Customer to use such Card, shall not be considered to be lost or stolen or in the hands of an unauthorized person, and the Customer shall continue to be liable to the Bank for the use off such Card until it is returned to the Bank, or until the Customer has provided notice in accordance with Section 6.b. or 11.a. that such person is no longer authorized by the Customer to use such Card. The Customer will make reasonable efforts to recover any Card from any person no ]anger employed or designated by the Customer to use the Card and prevent its use and cooperate in any proceedings or legal actions against such person. c. Notwithstanding anything in this Agreement to he contrary, any payment obligation of the Customer pursuant to this Agreement shall be payable solely from Legally Available Funds and shall not constitute, nor give rise to, a debt, indebtedness or multiple fiscal year direct or indirect debt or other financial obligation within the meaning of any constitutional, home rule charter or statutory debt limitation. This Agreement does net pledge the general credit or taxing power of the State, the Customer or any of the State's political subdivisions. d. Notwithstanding the provisions of Section 1O.a, if requested by the Bank, the Customer agrees to maintain a deposit account at the Bank (or one of its banking affiliates) with a balance of available funds sufficient to accommodate the Customer's obligation under this Agreement. The Customer authorizes the Bank to debit such account electronically on the Payment Due Date for amounts due under this Agreement, without prior notice. If there are not - 9 - sufficient funds in such account, the Customer agrees to pa promptly any amounts due. The Customer agrees that the Bank (and its banking affiliate, if ap.licable) will not be responsible for any dishonor of any check or other item as a result of these ac ions. e. The Customer shall notify the Bank of any sus.ected errors regarding Transactions by giving written notice of the Account or Card Account nvolved, the dollar amount of the suspected error, Transaction reference number, and a description of the suspected error. This notice must be received within sixty (60) days of the date o I the statement on which the charge first appeared. Erroneous billings include failure to re eive goods or services charged, unauthorized use of an Account, Card Account or Card by a l.erson 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 Ba I will investigate the situation and make a determination. SECTION 11. REPORTING UNAUTHORIZED USE; CARD ASSOCI TION WAIVER PROGRAM. a. If the Customer or any Employee knows of o suspects the loss, theft or possible unauthorized use of a Card, Card Account or an Account, t e Customer or the Employee, as the case may be, shall notify the Bank thereof as promptly as practicable by telephone call to the toll-free telephone number appearing on the reverse of the lards or periodic account statements, or such other telephone number as may be hereafter desig ated by the Bank. The caller shall report the respective Employee's name, Card Account nu ber and the last-known address of such Employee or, if applicable, the Account number and r.quest that such Card or Account be canceled. The Bank shall thereupon place a hold on the res.ective Card Account or Account to prohibit its further use, and the Customer shall have no liability for further use of such Card Account or Account after such telephone call. The Pro.ram Administrator shall promptly confirm such notice in writing to the Bank. b. In cases of unauthorized use of a Card or a Card Account, the Customer shall, contemporaneously with the Customer's issuance of the notice of cancellation described in the previous subsection, use its best efforts to (i) hand deliver o send to the respective Employee by certified mail, return receipt requested, to the Employee's c rrent address, a copy of such written notice of cancellation, and (ii) retrieve and destroy such Card. The Customer shall also cooperate with the Bank in its efforts to resolve any fraudulent transac ions made by means of a Card, Card Account or an Account. c. The Customer's liability for Unauthorized ransactions by Employees may be reduced to the extent of liability protection insurance cover.ge provided by the Card Association ("Liability Program"). The Customer's coverage shall be :ccording to the terms, subject to the exclusions, and on the conditions of the Liability Program as established from time to time by the Liability Program's underwriters, including but not limi ped to the condition that the Customer meet all of its then-current obligations under the Liability 'rogram and as set forth by the Card Association and its underwriters. The current provisions ol the Liability Program are described in a brochure published by the Card Association, which bro hure has been or will be furnished to the Customer by the Bank. In the event that the Card • ssociation modifies or suspends the - 10 - Liability Program, the Bank may modify or terminate this subsection at any time upon notice to the Customer. SECTION 12. TRANSACTIONS MADE IN FOREIGN CURRENCIES. In the event that any Transaction is made in a currenc other than U.S. dollars outside of the United States, the charges incurred in a foreign curren y will be converted by the Card Association into a U.S. dollar amount in accordance with the procedures set forth in its Operating Regulations. The currency conversion rate in effect on tl-1e transaction processing date may i differ from the rate in effect on the transaction date or state .)ent posting date. With respect to any transaction subject to this Section 12, the Customer frepresents and warrants that it is authorized to enter into and perform such transaction under a plicable State or local law. SECTION 13. REPRESENTATIONS AND WARRANTIES OF THE USTOMER. The Customer hereby represents and warrants to and agrees with the Bank that: a. The Customer has the power and authprity under applicable State or local law to make the Transactions, establish the Customer's Account, open the Accounts and Card Accounts, obtain the Cards and enter into the other transactirs contemplated by this Agreement and has been duly authorized to execute and deliver this Agreement and to carry out its obligations hereunder. If the Customer is a local unit of gpvernment under Authorizing Law, attached hereto as Exhibit A is a full, true and correct copy of a resolution or other appropriate official action of the Governing Body specifically authorizing the Customer to execute, deliver and perform this Agreement. Attached hereto as Exhibit B 1s a full, true and correct copy of an Incumbency Certificate relating to the authority of the officers or officials who have executed and delivered this Agreement on behalf of the Customer. Arttached hereto as Exhibit C is a full, true and correct copy of an opinion of the Customer's legal counsel regarding the legal, valid and binding nature of this Agreement on the Customer and certain other related matters. b. All requirements have been met and procedures have occurred in compliance with State law, including the Authorizing Law, in order to ensure the enforceability of this Agreement, and the Customer has complied with such public bidding requirements, if any, as may be applicable to the Transactions and the transaction§ contemplated by this Agreement to the extent required by State law. c. The Customer is not subject to an ' legal or contractual limitation or provision of any nature whatsoever that in any way limit , restricts or prevents the Customer from entering into this Agreement or performing any of its obligations hereunder, except to the extent that such performance may be limited by bankruptcy, insolvency, reorganization or other laws affecting creditors' rights generally. d. There is no action, suit, proceeding, nquiry or investigation, at law or in equity, before or by any court, public board or body, known to be pending or threatened against or affecting the Customer, nor to the best knowledge of the Customer is there any basis therefor, - 11 - wherein an unfavorable decision, ruling or finding would materially adversely affect any Transactions or the transactions contemplated by this Agreerhent. All authorizations, consents and approvals of governmental bodies or agencies required in connection with the execution and delivery by the Customer of this Agreement or in connection with the performance by the Customer of its obligations hereunder have been obtained, except with respect to annual procurement, budgeting and appropriation procedures as required by State or local law. e. The entering into and performance of this Agreement will not violate any judgment, order, law or regulation applicable to the Customer or result in any breach of, or constitute a default under, or result in the creation of any lien, charge, security interest or other encumbrance upon any assets of the Customer pursuant to an indenture, mortgage, deed of trust, bank loan or credit agreement or other instrument to which the Customer is a party or by which it or its assets may be bound. f. All information (including without limhation, business and financial data) now or hereafter furnished to the Bank and the information contained in each Application, notice of cancellation or other documentation submitted by a Pilogram 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 Customer. g. All payments under this Agreement represent a current expense of the Customer for Transactions that the Customer is, or will be authorized to make in each of its fiscal periods during the term of this Agreement. h. The Customer expects ten (10) or mor Cards to be issued and outstanding under this Agreement. i. All Accounts, Cards and Card Accounts established or issued under or pursuant hereto shall be used only solely in connection with the conduct of the Customer's official business, and the Bank may rely upon any Transacti?ns as the Customer's representation and evidence of use for such purpose. j. That under no circumstance will the Customer permit the sum of the Charge Limit plus the combined authorized credit limit of all credit cards issued by or for the benefit of the Customer under Authorizing Law (other thain the Accounts and Card Accounts under this Agreement) exceed the Maximum Combined Limit. k. The Customer has adopted by resolution of its Governing Body, any written policy requirement under the Authorizing Law relating to the transactions contemplated by this Agreement. Such written policy, if required, complies with the requirements of the Authorizing Law. Nothing herein contained shall impair the obligatiOn of the Customer, which shall be unconditional and absolute, to repay all extensions of credii arising out of the use of the Cards, Card Accounts or Accounts as provided herein and to pay Pi-ogram fees on all such extensions of credit as provided herein, but in each case only from Leglly Available Funds. The foregoing - 12 - _ _ representations and warranties are made to induce the Bank to issue Cards and open Accounts for the Customer's account and to extend credit to it from time to time, and shall constitute continuing representations and warranties until such time athis 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 14. REPRESENTATIONS AND WARRANTIES OF THE BAI4K. The Bank represents, warrants and covenants that this Agreement has been authorized by all necessary action and does not violate the Bank's charter or by-laws, any other agreement binding upon the Bank or any provision of law. THE BANK WAKES NO OTHER REPRESENTATIONS OR WARRANTIES EITHER EXPRESS OR IMPLIED OF ANY KIND 1TH RESPECT TO THE PROGRAM OR THE BANK'S PERFORMANCE OF SERVICES UNDER THIS A REEMENT, INCLUDING, WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SECTION 15. INDEMNIFICATION. To the extent permitted by applicable State law, and subject to Section 10.c, the Customer will indemnify and hold harmless the Bank, its officers, directors 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 (i) the Customer'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, (ii) the Bank's compliance with or carrying out any instruction or request which identifies the Customer as sender, if such instruction or request is accepted by the Bank in good faith, (iii) the Bank's actions or omissions in performing services in connection with the Program, unless such actions or omissions are determined to result from the Bank's gross negligence or willful misconduct, (iv) any incorrect classification of a merchant under the Card Association's Merchant Category Codes which has the effect of allowing Purchases that the Customer and the Bank intend to preclude, or (v)the Bank's good faith refusal to approve any Transactions. The provisions of this Section 15 shall survive the termination of this Agreement. SECTION 16. LIABILITY. The liability of the Bank to the Customer 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. - 13 - SECTION 17. IMPOSSIBILITY OF PERFORMANCE. If the Bank or the Customer is rendered unable, wholly or in part, by force outside the control of such party (including, but not limited to, an act 9f God, war, fire, terrorism, flood, explosion, act of governmental authority, strike or stoppage of labor, civil disturbance, power failure, or breakdown of telephone, system, network, computqr or automated mailing equipment) to carry out its obligations under the Agreement, the affected obligations of such party shall be suspended for so long as such party is unable to perform. Tile Bank shall have no responsibility and shall incur no liability for any act or failure to act by any other financial institution, credit card association, or any other third party, including, without Iimitation, the refusal of any vendor to honor any Account, Card Account or Card. In addition, the Customer acknowledges and agrees that the functioning of some Program services is dependent upon equipment, software, communication lines and Program services provided by the Customer or third parties, and that the Bank shall have no responsibility or liability for the performance thereof. SECTION 18. ASSIGNMENT AND SUBCONTRACTS. Neither party may assign this Agreement, transfer any right or delegate any duty or performance hereunder without the prior written consent of tie other,provided, however, that the Bank has the right to assign this Agreement, in whole or in p rt, and/or to delegate any rights and obligations hereunder to an affiliate of the Bank, without tIle Customer's prior written consent; and provided, further, that the Bank may, without the Customer's prior written consent, subcontract with other entities with respect to the provision of services hereunder, but no such subcontracts shall relieve the Bank in whole or in part of its obligations under this Agreement or ; alter the Customer's rights against the Bank under this A reement, however, all entities with whom the Bank subcontracts will be entitled to rely on, an avail themselves of, the provisions of this Agreement as if they were the Bank, including, without limitation, the limitations on liability and indemnities described in this Agreement. This Agreement shall be binding upon and shall inure to the benefit of both parties and, unless otherwise contemplated in this Agreement, their representatives and their respective successors and assigns. Any attempted assignment of rights or delegation of obligations contrary to the provisions of this Agreement shall be void. SECTION 19. NOTICES. Except as otherwise provided herein, any notice dr other communication to be given under this Agreement shall be in writing, delivered by hand, facsimile transmission (with telephone confirmation by the sender confirming receipt by the recipient) or mailed postage prepaid, addressed, as shown below the signatures of the parties, or at such other address as either party may designate in writing to the other. All notices and other communications delivered by facsimile transmission will also be delivered i)y hand or U.S. mail if requested by the recipient. Notwithstanding the foregoing, either party nay rely on facsimile transmissions as though they are originals, and regardless of whether it has ileceived telephone confirmation from the sender. Furthermore, electronic transmissions from ih Customer to the Bank's designated il e-mail address shall constitute written notices under this greement, shall be binding upon the Customer and may be relied upon by the Bank if accel ted in good faith. Any notice or - 14 - communication will be effective against the Customer when it has actually received and has had a reasonable time to act on such notice, but in no event later than the close of business on the second business day following receipt. Any notice or communication will be effective against the Bank when it is actually received and the Bank has had a reasonable time to act on such notice. SECTION 20. EFFECTIVE DATE AND TERMINATION. a. This Agreement shall be effective as of the date first above written and, unless sooner terminated as set forth herein, shall remain in full force and effect for an initial term which shall expire at midnight on the earlier of(i) one year fcillovving the date first written above or (ii) the last day of the Customer's current fiscal period, and shall continue thereafter for successive renewal terms. Each such renewal term shall expire on the earlier of (1) one year following the start of such renewal term or (2) midnight on the last day of the Customer's then current fiscal period. Upon termination of this Agreemet, all Accounts, Cards and Card j Accounts will be canceled by the Bank and the Customer grees to use reasonable efforts to collect and destroy each Card. Also upon termination of thi Agreement, all computer software licenses granted by the Bank to the Customer for use in onnection with the Program shall automatically terminate, and the Customer shall immediate] return to the Bank the original and all copies of such software. and all other confidential Pr4ram materials, documentation or materials provided to the Customer by the Bank. b. Either the Customer or the Bank may terminate this Agreement upon breach by the other party which remains uncured after thirty (30) days following written notice of termination by the non-defaulting party, or with or without cause upon sixty (60) days' prior written notice to the other at any time after the initial term of this Agreement. Notwithstanding the foregoing, but subject to Section 10.c, the Bank may require immediate payment of the entire balance owed on the Customer's Account and all other amounts owing uider this Agreement, immediately terminate this Agreement or any Account or Card Account pr refuse to permit further access to any Account or Card Account, or without prior notice to the Customer, apply any deposit account balances of the Customer held by the Bank or any affiliate of the Bank toward any balance owed on the Customer's Account or any other amount owing hereunder, if (i) the Customer fails to make payments as required hereunder or the Customer breaches any of its representations, warranties, covenants, or terms or conditions contained in this Agreement, (ii) the Customer has made any statement to the Bank which is false or misleading in any respect, (iii)the Customer is in default of any other obligation it may owe to the Bank or any affiliate of the Bank, or (iv) the Customer becomes insolvent, goes into receivership, or a voluntary or involuntary bankruptcy or similar proceeding has comirKbriced, or the Bank, in good faith, determines that the financial condition of the Customer has become impaired. c. The Customer hereby agrees to promptly notifthe Bank if action is taken or any proceeding is commenced that may (i) adversely affect thecustomer's existence, (ii) impair the Customer's ability to perform its obligations under this Agrement, (iii) change its boundaries to an extent that may adversely affect the Customer's finanbial condition, or (iv) challenge the rights of its officials to maintain their respective offices. Tie Bank may immediately terminate - 15 - this Agreement upon notice to the Customer in the event of he occurrence of any of the events described in the immediately preceding sentence. d. The 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 termination. SECTION 21. MISCELLANEOUS. v7 a. No duty or obligation of the Customer hereun er shall be deemed waived and no breach excused unless such waiver or consent shall be in riting and signed by an authorized representative of the Bank. Failure or delay on the part of the Bank to exercise any right, power, privilege or remedy hereunder shall not operate as a waiver for any different or subsequent breach. b. In the event that any provision of this Agreement shall for any reason be held invalid, illegal or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall remain unimpaired. c. The Bank will notify the Customer of any charges in the features of the services or products offered hereunder. d. The section titles in this Agreement are included as a matter of convenience, for reference purposes only, and in no way define, limit, expaid or describe the scope or intent of any provision herein. e. This Agreement constitutes the entire understanding between the parties and it supersedes all prior agreements and negotiations. The Bank may amend this Agreement upon written notice to the Customer, provided similar amendments are being made to the agreements between similarly situated customers and the Bank. Any sich amendment will be effective ten (10) days after such notice is sent to the Customer in the manner described in this Agreement. f. This Agreement shall be governed by and construed in accordance with the laws of the State. The Bank and the Customer hereby waive, where permitted by applicable State law, the right to a trial by jury in any action, proceeding, or Counter-claim brought by either party against the other on any matter whatsoever arising out Of or in any manner related to this Agreement. (Signature page to follow) - 16 - IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. LASALLE BANK NATIONAL ASSOCIATION CUSTOMER: C 1 fl L t= E L6 1�✓ B ': ( lit • % BY: 0. lel/ NAME:0&c Sft (4A.r NAME: Dck,-;ok 7-1c,v\ TITLE: i C4 -I)('Q,S;C'1�4.Y- TITLE: C•\ kav,&tele ✓ ATTEST: NAME: A('L^VIli _ e C U v„` TITLE: Gn�n t .✓L_ Address for Written Notices: Address for Written Notices: LaSalle Bank National Association Attention to the individual (who shall c/o ABN AMR() Services Company, Inc. be named) then currently acting as 200 West Monroe Street Program Administrator Chicago, Illinois 60606 F ()iv) LpOLLb Attention: Commercial Card Manager t\A-�.,, • (�-n COve� Facsimile: (312) 904-6626 Facsimile: 6-14 - cit't - (pU?-C With telephone confirmation to: With telephone confirmation to (312) 904-7914 ) q 3` - S x00( 47489240 Rev:03/08/2002 - 17 - . , . ADDENDUM TO COMMERCIAL CARD AGREEMENT FOR STATE AND LOCAL GOVERNMENT UNITS This Addendum is made by and between City of Elgin (the "Customer")and LaSalle Bank National Association(the "Bank")and relates to the terms of the Commercial Card Agreement(the "Agreement") dated as of April 9, 2003 between the Customer arid the Bank. All capitalized terms not otherwise defined herein shall have the same meanings herein as Set forth in the Agreement. The Customer and the Bank hereby agree that the Agreement hall be amended as follows: 1. The first sentence of the Agreement is hereby amended by: (iinserting the phrase", a nationally chartered banking association,"immediately after the word"Association"appearing therein, and(ii) deleting the terms "state or"as it appears therein. 2. Section 1.x. is hereby deleted in its entirety and restated as follows: ""State"means the State of Illinois." 3. The Bank agrees to amend the first sentence of Section 15 as follows: (i) delete the phrase"actual and"as it appears between the words "including"and"reasonable"; (ii) delete the phrase"or the Bank's enforcement of any of its rights or remedies under or pursuant to this Agreement,"as it appears in subsection(i)of that sentence; and (iii) delete the word"gross"as it appears in subsection (iii)of that sentence. 4. The first sentence of Section 16 is amended by deleting the word "gross"as it appears therein. 5. The parties agree that new subsection (g) shall be added to Section 21 and read as follows: "This Agreement shall not be construed so as to create a partnershiP,joint venture, employment or other agency relationship of any kind between the parties hereto, eXcept as may be specifically be provided for herein. Except as specifically modified hereby,the Agreement shall remain in full force and effect. Any reference to the Agreement shall be deemed to include this Addeidum. In Witness Whereof, the parties hereto have executed this Addendum as of the date first written above. City of Elgin LaSalle Bank National Association By: ,470e-e-Pred(larfr-1---- :y: _. -- , 1 Name: - o --- CIO k LAci ' otrt-)r.,,i--. Name: / 0 Title: CA 1,..1 fr\Lxv-kc.ni en...---- Title: V 1.'/-_,a.—Pt-Q..f- i Cl.0.At By: Name: -Oci 0 iAiA0‘ l'AR ( t, ,-, Title: CA 1'1 C Cie-Ai/ 81775802 • ,tOF Etc, G .\"s City of Elgin Mayor l ,l, Ed Schock Council Members Juan Figueroa Robert Gilliam Ruth Munson John Walters Stuart Wasilowski Marie Yearman April 9, 2013 LaSalle Bank National Association c/o ABN AMRO Services Company, Inc. 200 West Monroe Street Chicago, Illinois 60606 Re: Commercial Card Agreement for State and s cal Government Units Ladies and Gentlemen: As counsel for City of Elgin (the "Customer"), I have examined a duly executed counter') of the Commercial Card Agreement for State and Local Government Units dated as of April 9 , 2003 (the "Agreement") between the Customer and LaSalle Bank ational Association (the "Bank") and the proceedings taken by the governing body of the Custo er to authorize the execution, delivery and performance of the Agreement on behalf of the C stomer. Based upon the foregoing examination and upon an examination of such other doc ments and matters of law as I have deemed necessary or appropriate, I am of the opinion that: 1. The Customer is a municipal corporation duly organized and legally existing under the Constitution and laws of the State of Ill inois (the "State")with full power and authority to enter into and perform its obligatio s under the Agreement. 2. The Agreement has been duly authorized, execute,' and delivered by the Customer and, assuming due authorization, execution and delive , thereof by the Bank, constitutes the legal, valid and binding obligation of the Custome , enforceable against the Customer in accordance with its terms, subject to any applicabl- bankruptcy, insolvency, moratorium or other laws or equitable principles affecting he enforcement of creditors' rights generally. 3. The Customer has satisfied all requirements under he Constitution and laws of the State, with respect to the Agreement. 4. No litigation or proceeding is pending or, to the •est of my knowledge, threatened to restrain or enjoin the execution, delivery or p:rformance by the Customer of the 150 Dexter Court• Elgin, IL 60120-5555 • Phone 847/931-6100 Fax 847/931-5610 •TDD 847/931-5616 ,. www.cityofelgin.org : I 1 • Agreement or in any way to contest the validity of t e Agreement, to contest or question the creation or existence of the Customer or its gove ing body or the authority or ability of the Customer to execute or deliver the Agreeme t or to comply with or perform its obligations thereunder. 5. The resolution adopted by the Customer's govern ng body authorizing the execution, delivery and performance of the Agreement and ce ain other matters was adopted at a meeting that was held in compliance with all appli.able laws relating to the holding of open and public meetings. 6. The entering into and performance of the Agree ent does not violate any judgment, order, law or regulation applicable to the Custo er or result in any breach of, or constitute a default under, or result in the creation o any lien, charge, security interest or other encumbrance upon any assets of the Customer I.ursuant to any indenture, mortgage, deed of trust, bank loan or credit agreement or other instrument to which the Customer is a party or by which it or its assets may be bound. Respectfull, submitted, vJ O V1id/ Attorney W 52307663 Rev:03/29/2002 -2 - • \yyOFE1Ci ¢ \1'§ City of Elgin Agenda Item No. a, E ,ir ,, t, 1 oil .I'i 11IBJ ►int M ��p February21, 2 0 0 3 �7 rnI 001 14 fr . . 010 TO: Mayor and Members of the City Council FINANCIALLY STABLE CITYGOVERNMENT EFFICIENT SERVICES, AND OUAUT Y IN FRASTRUCTURE FROM: Olufemi Folarin, Interim City Manager SUBJECT: RFP #02-126, Procurement Card Program PURPOSE The purpose of this memorandum is to provide the Mayor and members of the City Council with information to award a contract for a procurement card program to LaSalle Bank NA. BACKGROUND ri. The City currently has about 21 business credit cards for department use. The charges to these cards total about $100, 000 per year, primarily for travel and training expenses . These credit cards have been used sparingly -nd responsibly by City staff for five years . The ease of purc asing and payment using a credit card has been clearly demons rated, which is why a Selection Committee was created to solicit proposals for a procurement card program. The purpose of a procurement card prog am is to simplify the vendor payment process by reducing proc:ssing costs for small, nonrecurring and recurring purchases, s ch as hardware items, memberships and subscriptions . Ancillar, benefits include more vendors with whom the City can do busin-ss, and increased ease and efficiency for departments making ordinary purchases . A procurement card operates the same ay as a credit card. Procurement cards differ from the City' s current credit cards in the restrictions that can be placed on purchases . Individual procurement cards can restrict types of businesses that will accept the card; the number of transactions a day; the amount of any transaction; and the total amount of daily transactions, among others. A • rm. Procurement Card Program February 21, 2003 Page 2 orders a year. Of these 16, 000 requiSitions/purchase orders, about 75% are for purchases less than $500, representing less than 2% of the yearly purchasing dollar vOume. A 1998 Deloitte& Touche study indicated that the average cost of generating a purchase order to buy an item or pay an invoice is $83, while the cost of a purchasing card purchase order is $25 . The City' s cost of processing a purchase order from beginning to end, including labor and supplies, is hard to calculate. However, if the steps and materials from invoice receipt to the mailing of payment are laid out, it is apparent that the level of effort for small purchases is out of proportion to the cost of the goods or services themselves . Request for Proposals were sent to eight local and national banks and an advertisement was placed in the November 25, 2002 "Courier News. " Three proposals were received on January 6, 2003, from Amcore Bank, Bank One and LaSalle Bank. Amcore Bank did not offer a procurement card sollition, stating that the City' s annual spending volume would have to be reviewed before implementation of the program. Both B4nk One and LaSalle Bank offered attractive procurement card Programs, with flexible purchasing restrictions and detailed ireporting. Bank One' s program is used by Schaumburg and Naperville. LaSalle' s program is used by Rockford and Des Plaines. Ultimately, LaSalle was deemed the highest ranked vendor, priMarily because of their detailed description of the proposed pilot program that would introduce the cards to a small numb6r of people in a few departments. GROUPS/INTERESTED PERSONS CONTACTED None. Dikl___PINANCIAL IMPACT There is no charge to the City for the use of these procurement cards. Although not possible to quantify at this point, it is anticipated that savings in staff time Will result in processing efficiencies. a • • Procurement Card Program February 21, 2003 Page 3 L IMPACT None. ALTERNATIVES 1 . Award the contract as recommended. 2 . Do not enter into a contract with LaSalle Bank for a procurement card program. RECOMMENDATION It is recommended that the City Council approve award of a contract with LaSalle Bank for a three year procurement card program. Respectfully submitted, ft mow w.w.. Olufemi F.i;arin Interim Ci +y ' .nager GAC