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Backup Documents 05/08/2012 Item # 7. S/SJ 2-a 12— 'PC 4ko-, Limb- We*tu' h 'rn -0--7 - Patricia L. Morgan From: MitchellIan <IanMitcheII@coIIiergov.net> Sent: Tuesday, May 08, 2012 11:50 AM To: Patricia L. Morgan Subject: FW: Misrepresentations of Proposed Commerce Bank Agreement LOI 10-5562 Attachments: Document requested by Linda Valentine[l].pdf, LOI 10-5562.pdf, 10-5562 Meeting Notes - 4-13-11 answers (1).docx Item 7 From: MitchellIan On Behalf Of ColettaJim Sent: Tuesday, May 08, 2012 11:45 AM To: MitchellIan Subject: FW: Misrepresentations of Proposed Commerce Bank Agreement LOI 10-5562 From: levalenti ne(cbcomcast. net rmailto:levalentine(abcomcast.net1 Sent: Monday, May 07, 2012 11:18 AM To: FialaDonna; HillerGeorgia; Tom; CoyleFred; ColettaJim Subject: Misrepresentations of Proposed Commerce Bank Agreement LOI 10-5562 Commissioners: Before making any decisions on the above-captioned agreement, please see my attached comments. As the main contact for Collier County in the investigation of the product and the negotiation of the contract, my comments should be of interest. Under Florida Law e -mail addresses are public records It you do riot want your email address released in response to a public records request, do riot send electronic iiiail to this entity. Instead contact this office by teleptione or in miting 1 Nem ;4- 7 �/$/ May 07, 2012 The Honorable Board of County Commissioners Naples, Florida 34112 April 26, 2012 Re: LOI 10 -5562 Dear Commissioners: offer this attached summary for your information as an example of the continued lack of efficiency and mistrust tna: exists between Board Departments, the Clerk of the Courts and vendors /suppliers trying to provide service, and rece ve payment. Far too often well intended staff members are summarily dismissed without any factual support with statements like: "What you are trying to do is illegal," or "we cannot do that because we are government," or "You just don't really don't understand." I do understand, I am a law abiding, taxpaying ethical individual In this community, and what you are allowing to occur is not only immoral, but is eroding businesses in Collier County. I am the former Purchasing Card Administrator for Collier County and a Certified Purchasing Card Professional by the National Association of Purchasing Card Professionals (NAPCP). Prior to employment with Collier County, I had more than 25 years' experience as a financial manager for the Federal Government and private corporations. I am well acquainted with both government regulation and standard accounting practice. I wish to clarify inaccurate information that was presented during the public petition at the last Board meeting on April 10, 2012. The discussion of the e- payables product was inaccurate and the Board cannot reach a valid conclusion based on erroneous information. As one example, Ms. Kinzel stated that the bank submitted a contract for purchasing cards which was not what was solicited. This is factually incorrect. The e- payables product is a purchasing card product. lust as one may purchase an automobile from Chevrolet that comes with a variety of styles and options, so can one contract for a purchasing card product that has a variety of options. 1 offer the following summary attachment as the history of what occured to highly reputable company in the industry. I would appreciate a response, and more imporatntly, I urge you to expediently seek to resolve the continued lack of efficiency and mistrust that exists between Board Departments, the Clerk of the Courts and vendors /suppliers, Respectfully, ~Linda E. Valentine a Summary of Events ePayables Solution What defines a purchasing card is largely that goods and services are purchased by an entity using an established credit card gateway, such as Visa or MasterCard. It would be difficult to explain in one letter the many flavors of purchasing card accounts. These cards are basically off - the -shelf products that do not carry an interest rate as they are to be paid in full on an agreed -upon date and they often carry revenue share, depending on the specific product, The initial contract provided offered the flexibility to ask for plastic too and upon objection, that option was removed. Collier County has a purchasing card contract with SunTrust Bank. This contract was negotiated by Collier County Purchasing. The State of Florida also has a State contract for purchasing cards. Some years before my arrival at the County, Collier County Purchasing adopted the State contract. It is my understanding the State provider, Bank of America, withdrew from the agreement due to lack of timely payment by the Clerk. I am aware of no case where the Clerk contracts for purchasing cards for a Board, The person or entity responsible for the purchase makes the agreement for the credit card. Commissioner Hiller's and Commissioner Henning's statements to the effect that the Clerk should control this agreement is not consistent to my knowledge with any other State government arrangements. There are a host of benefits that accrue to the County by using these cards, over and above any revenue share received. Your Purchasing Department has a copy of the last RMPG Consulting Benchmarking Survey that can explain this in detail, but among the largest benefits are the ability to acquire goods faster with less expense, and benefits that accrue to the Clerk's office such as reduced banking fees, postage and the elimination of 1099 reporting to the IRS for services purchased on a card. Collier County Purchasing sought to replace needed revenues by increasing our revenue share. A steering committee comprised of the directors of some of the largest County departments was convened and the direction was to go with the e- Payables product rather than the existing plastic card arrangement. Concerns were that the Clerk does not accrue or encumber the existing purchasing card transactions and the departments would face issues in tracking budgets as well as a loss of documentation without the support of the existing requisition /purchase order process. During this time, Purchasing entertained any and all financial institutions that came of their own accord to advertise their products. I can recall Commerce Bank, Synovus Bank, JP Morgan Chase and Fifth Third for certain. When banks offered to demo an e- payables solution, the Clerk's personnel attended, asked many questions, and sent up no red flags. Upon the direction of the steering committee, Purchasing went forward looking for a provider. In my role as Purchasing Card Administrator, I met with banks that called on us as well as attended the NACP annual conference to gather information on products and providers. I conducted extensive interviews with end -users to determine potential costs and pitfalls. With sufficient expertise and insight, Purchasing went forward with competitive solicitation in the form of an LOI. In Bay County, the Clerk's office identified the Commerce Bank product, approached the Board to sign the contract without a competitive solicitation and asked that the Board share revenue with the Clerk as there is no legal requirement to compete revenue. They are very happy with the program. Mr. Carnell offered to share revenue as well, but the Clerk's office showed no interest. Also implied at the Board meeting was that the competitive solicitation was flawed because the revenue share was not the primary point of competition. Rather than a flaw, that is the overwhelming strength of this solicitation. Ina credit card transaction, with or without an actual plastic card, the vendor pays a per transaction fee for the use of the Visa platform, usually between 1 to 3 %. This contract is between the vendor & Visa, and exists regardless of Collier County's participation in any plan. This fee funds Visa's infrastructure and is split with acquiring banks and merchant banks. An acquiring bank "acquires" an end -user to make purchases with this card. The acquiring bank splits its share of the fee SPe bo-: 1.t,i"6 f`v►L. 417 with the end user and the bank's processor who facilitates the process with Visa. Merchant banks also take a piece of the fee to fund their operations. Therefore, revenue share to any end -user is less than % of 1 %. Competition between banks is generally not based on revenue share as the differences are marked in hundredths or thousandths of a percentage point. Instead, banks compete based on technology, services and reputation. A vendor must be approached to enroll in this program. It is not a contractual agreement, it is an administrative coordination of the process way the credit card number will be passed to the merchant. If a bank does not have sufficient infrastructure to support this administrative process, the end -user must take it on. Investment in technology allows the process to go more smoothly for all concerned and requires less manpower from the end -user. So while the process appears to be all revenue and no cost to the end user, a bank that did not supply adequate and continued support would leave the necessary administrative functions required to enroll vendors and grow the program to Collier County. Therefore, with minimal differences in revenue percentage, the level of service the vendor is willing to provide is of utmost concern to Collier County. Note that revenue share was considered, it was just not the primary consideration. If a bank were to give us several hundredths of a percentage basis more of revenue share but we had to hire on two employees to continue to enroll merchants after implementation, the cost of administration would erode the benefit of the revenue share. This process can be done on the existing purchasing card program. It is the administration that made it unfeasible. The Clerk's office has previously participated in testing using the existing plastic cards to pay purchase orders. Staff ultimately rejected the idea due to the cost of staff training. The Clerk's office offered no objections to going forward. Therefore, it is not likely the product or the fact that staff contracted for the product that is or should be at issue. In fact, the Commerce Bank process of dynamically opening and closing card accounts only in the amount of the purchase order, coupled with the bank's technology and service make the process far more safe and efficient than staff could manage. So why has this contract been in discussion for a year and a half? I cannot speak to the motivation of the Clerk's personnel, but I can over evidence of the type of "negotiation" that has taken place. Purchasing involved the Clerk's personnel at every turn prior to the LO1. The Clerk's A/P and MIS managers were at every meeting. Purchasing approached the Clerk's Treasury personnel to discuss any loss of interest on deposits, and the Clerk's Financial Accounting personnel for any input they might have. No one raised an issue. Ms. Kinzel was always copied on invites to the Clerk's team. The Clerk's personnel comprised 50% of the selection committee, and 66% percent of the committee when the final selection was made as a member of staff did not show. Please request the tapes of these deliberations. When the committee narrowed the selection to the top 3 vendors, Ms. Murray of the Clerk's office will be heard to say that she really would like Fifth -Third Bank considered. Mr. Curran who was facilitating the solicitation pointed out that Ms. Murray did not rank Fifth -Third in her ranking sheet. Ms. Murray commented that it was because Fifth -Third could not meet the criteria in the LOI. Mr. Curran then asked if she thought the criteria was wrong and needed to be readdressed in some way and she responded in the negative. This is one of the first instances of the Clerk's office trying to unduly influence a publicly competed contract. As a taxpayer, I was concerned to hear my own commissioner, Commissioner Hiller, bring up Fifth -Third Bank at the Board meeting. I have grave concerns about the propriety of a supposedly independent auditor being this involved in the selection and negotiation process at all, but when the result is then steered to an admittedly unqualified provider by the Clerk, one is hard pressed to say that staff held an improper solicitation. Post award, Ms. Kinzel became primary negotiator for the contract, and has insisted that the Clerk be a signatory on what is, in every other county in Florida and across the nation, a contract within the purview of the Board. If the Clerk is to be an independent auditor to the Board, how can the Clerk sign and negotiate this contract? 41-- �ialzvr�'i'we� t g I Ms. Kinzel may be a talented financial manager, no one person can be expert in everything. I have spent many years studying purchasing cards, and the industry is changing fast. Please see her first cut at her negotiation of this contract attached. References to the charge accounts and the protections afforded us by Visa were deleted. These deletions (1) show a basic ignorance about the product, and (2) they change the very nature of the solicitation. Since this was a credit card solicitation, it is Ms. Kinzel that attempted to change the product delivered, not the bank. Also see an email from me to Ms. Wood and Ms. Greene obtained via a public records request. Ms. Wood and Ms. Green had taken a meeting with Ms. Kinzel. I was not invited. With a new audience, Ms. Kinzel opened up many issues that she had previously led both staff and the bank to believe were resolved. This is at the heart of the problem staff endures. The process never ends. Staff is required to go over the same ground again and again. And it is not only the repetition, it is the fact that the Clerk's office routinely usurps the Board's authority simply because they have the power of the checkbook. Among the matters that Ms. Kinzel spent months on was the issue of PCI compliance. PCI is an industry standard that governs private credit card information when it resides in the systems of a third party. PCI does not in any way relate to an end user's storage of its own data. Despite the opinion of Richard Badge of the BCC IT department, the Bank's IT department and the Visa corporation itself, Ms. Kinzel pursued this for months and Mr. Axelrod said he could not go forward under the circumstances. On what basis, in direct contradiction to people who do have expertise in this area, is the Clerk's office qualified to be the sole arbiter of PCI compliance? For a time, Ms. Kinzel insisted that Commerce Bank add language absolving Collier County of all responsibility for PCI compliance. The bank could not. They have no way of knowing what efforts Collier County might undertake post contract. Should we start taking credit cards from the public for all sorts of fees, we would be required to be PCI compliant with the public's information. This is similar to the current impasse. Ms. Kinzel raised this issue and dropped it before. She would like a detailed process and roles assigned to that process written in to the contract. The bank has declined saying they reserve the right to change their internal procedures at will. So long as contracted services are provided, the Bank has met its burden. Similarly, it is not their concern how we choose to accomplish our responsibilities under the contract. These contracts are templates and other entities routinely adopt them. The more unnecessary specifics are added, the less they are suitable for adoption and the more contractual problems can arise. As this is an at -will contract, with no cost to the County, should it not be satisfied, Collier County can take its business elsewhere with no penalty. Finally, both Ms. Kinzel and Commissioner Hiller appeared to indicate that something must be amiss for the bank to come before the Board, that somehow they must be expecting a windfall. Please let me say what the bank could not in an open forum. Commerce Bank is the leader in a very competitive industry. It is a well - respected and very conservative company. This was a public solicitation and many of their competitors participated. One year later when I attended the NAPCP annual meeting, I heard the jeers for myself. Their competitors are using Collier County's refusal to come to agreement as a black mark against Commerce. "Hire Commerce Bank and you will not have a program for a year or two. Collier County still doesn't have a contract. There is something wrong." Nothing could be further from the truth. There is no other company that stepped up to the level of service that Commerce Bank did. This was not my opinion. The final unanimous award by approved by a 2 to 1 ration of Clerk's staff over BCC staff. Ms. Kinzel's response was that the participation of the Clerk's staff is immaterial if she does not agree. No one person has such authority. The issues that Ms. Kinzel has continued to raise are not particular to Commerce Bank, and I believe that re- soliciting with not only result in an inferior award, but it will empower an office and an individual who has dangerously overstepped established boundaries to the eternal detriment and expense of the taxpayer. 4 1 51 fi p. -- Commerce Bank was courageous in coming before the Board. It has already been maligned by Collier County, and yet it still has faith that the Board would never knowingly tolerate such unfair treatment of a vendor. This may be an extreme situation, but it is by far not the only one. I respectfully submit that the Board must step in or work in the County will continue to grind to a halt while the expense of administration will increase exponentially. There is a real cost to all of this back and forth, and the BCC can no longer afford the luxury. Was the Board ever aware that the Clerk could have lost us the SunTrust contract when they became over $100,000 in arrears in the first year? Is the Board aware that the Clerk ultimately paid the arrearage without ever finding the documentation that was submitted to them by staff multiple times? The public has a right to hold the Clerk's office to the same standard as the BCC. I can only imagine the uproar if your staff refused to take a $500,000 discount. Sig %Ia- WoodLyn From: WoodLyn Sent: Friday, June 03, 2011 12:14 PM To: 'Crystal K. Kinzel'; GreeneColleen Cc: CarnellSteve; Valentinel-inda Subject: 10 -5562 E- Payables Crystal and Colleen, Attached is the Agreement (with tracked changes) as well as the other documents that Commerce is requesting that we sign in connection with the Agreement. We are attempting to make the 6/28 agenda with this agreement so if you could finish your review and provide me with comments by close of business on Thursday, June 9, we might be able to make it. Crystal, will you also have Mr. Brock review as we are trying to finalize this in a short time W-0 IM MW F- I—Q- y Accounts_Payable_ Program Admin Corporate Credit Line Agreement - C... Delegation - 5_3... - solution - 5_31_11:onfirmation Form .. period. Please let me know if you have questions. Lyn • Vic_ SS�Z COMMERCE BANK ACCOUNTS PAYABLE AGREEMENT THIS COMMERCE BANK ACCOUNTS PAYABLE AGREEMENT is made and entered into as of the Effective Date by and between Commerce Bank, N.A. (Kansas City, MO) ( "Commerce ") and Board_ of County Commissioners of Collier County. Florida ("Customer"), 1. DEFINITIONS. The following terms shall have the following meanings: a "Administrator" means, individually and collectively, one or more employees. officem, directors, or agents of the Customer who are designated by the Customer to assist Commerce in the administration of the Program. b. "Agreement" means this Commerce Bank Accounts Payable Agreement and all Addenda from time to time executed by the parties and attached hereto, and all amendments to the foregoing. C. "Account Holder" means Customer and any of its officers, directors, agents and employees who utilize the Commercial Accounts. 104,4) " *ommerci ial C� y2t� t s txount Holde 1, 1 s to ,c MW s ce4r0 e. "E ectrve Date" shall be defin as set orth in Section 17. W&AU W4. { q.�.w C&A& S "Program" means the Accounts Payable Program administered by Commerce as set forth in this Agreement. g. "Public Record Law" means any state's law which provides that Customer's contracts are open and available to �J the public. h. "Unauthorized Charge" means a charge made by an Account Holder to a Commercial Account that (i) has not ` been authorized by Customer, and (ii) has been accepted and processed by a merchant having the technology y �� t� capable of determining and confirming that the charge did not meet the parameters established by Customer for l+t � authorized charges. &1�2. I PROGRAM; ISSUANCE AND RENEWAL. a. During the term hereof, and subject to the terms nd conditions of this Agreement, Commerce agree.% to provide r� the Customer with the Program and to issue Commercial Accounts to Customer. Attached hereto as Form A L% a �AJ general description and overview of the process of implementing the Program. Customer acknowledges and v agrees that Form A is intended to be general in nature and that all descriptions, activities, timefiames and L1 milestones contained in Form A are approximation.% or estimate% only and are subject to change by Commerce. Y- Customer further acknowledges and agrees that Commerce's ability to implement the Program on a timely basis is dependent upon the cooperation of Customer during and following the implementation procao and upon ,J _�usmmer's vidin¢ all information and data necessary to implement the Program. " — vy %..vuu„ W.- ommercr ccoun v or the term Indicafetl alms-such Commercial Account has been canceled by Commerce pursuant to the provisions of this Agreement or at the request of the Customer. mJ1� d. Commerce acknowledges the ability of Customer to revoke any authority given to an Account Holder, at Customer's discretion upon proper notice to Commerce; provided, however, that Customer shall remain liable for all charges made to each Commercial Account as provided in this Agreement. 3. BILLING PROCEDURES. Commerce offers the billing method described below: Central Billed Accounts: Except as otherwise provided herein, Customer shall be liable for all charges made to each Commercial Account requested by Customer. Charges shall be set forth on a billing statement and ..hall be paid by the Customer a% agreed in Addendum A attached hereto and incorporated herein by this reference, and as set forth herein. Except for a proven Unauthorized Charge or as otherwise expressly provided herein, Customer shall pay Commerce for all charges made to each Commercial Account within the time period provided in Addendum A. Except as provided herein, Commerce shall have no duty or obligation to inquire into the nature of any transaction charged by any Account Holder (e.g., whether such transaction was for a business or per..ional use.) 4. PROGRAM ADMINISTRATOR. Upon signing this Agreement, Customer shall designate one or more Administrator(s) to assist Commerce in the administration of the Program. In addition to any other duties listed elsewhere in this Agreement, as well as any other duties reasonably requested by Commerce, the Administrator shall undertake the following duties on behalf of the Customer: a The Administrator shall have the responsibilities assigned in the Program Administrator Delegation document provided by Customer to Commerce, including, without limitation. the ability to request that Commerce issue 4 �� Commercial Accounts to any person in connection with the Program, to increase or dectz ctzdtt limits'fo 5pe4k&r-Ghd& e sl�l �W suspend Commercial Accounts, to order or block wire transfers and convenience checks, and to perform any other maintenance activity. b. The Administrator shall be familiar with all aspects of the Program, including, but not limited to Program procedures, number and status of Commercial Accounts, notice requirements, any disputed transactions, credit limits, statement cycles, billing and payment procedures, general program parameters and status of delinquent charges. C. The Administrator shall be responsible for notifying Commerce, in writing, about changes in authorization codes. The Administrator shall be proficient in the use of th n -Line Services) se red by Customer as described in Addendum B. FEES. Commerce shall be paid fees and charges set forth in Addendum A. Customer acknowledges that Commerce has based the fees and charges upon the projections given by Customer regarding transaction volume, average ticket amount, number of Commercial Accounts, monthly credit line requested, reporting product selected, and frequency of payment. Fees may be subject to change from time to time by Commerce upon ninety (90) days' prior written notice unless otherwise specified in Addendum A. 6. LINE OF CREDIT. Commerce will establish a maximum line of credit amount for Customer. a. All amounts charged to the Commercial Accounts together with any fees and charges owed to Commerce by Customer in connection with the Program, may not exceed, in the aggregate, the line of credit amount unless Commerce in its sole discretion authorizes such charges. ommerce may, at any time in its sole discretion, m anunt of Customer's_1► tie of credit upon thirty (30) days' prior written notice to Customer, provided, however, that Customer may elect to terminate this O, Agreement by written notice to Commerce during such thirty (30) day notice period; provided, further, Customer agrees that if any amounts are outstanding on the Commercial Accounts which exceed the adjusted line of credit amount, Customer will immediately pay Commerce such excess amounts. C. rom time to time, Commerce may request Customer shall produce financial records relating to the financial ondition of Customer. Customer shall oduce such records not later than thirty (30) days following such quest. The financial records may equested as often as quarterly, or for any such other time period as may reasonably determined by Co rce. Customer shall, upon reasonable re9pest by Co erce, and its annual 27 -w a&,-4-4-e4 uudiittto Commerce within 30 da of its completion by Customer's auditor. i yW— ,t,Y x S F L 7. TERM O AGREEM T N WAL. T is Agreement shall remain in full force and effect until terminated by either party as herein set fo . i arty may terminate thi A rcement any time, with or without cause, upon thirty (30) days' prior written no ' ` In the event Customer terminates this Agreement prior to the date that is three (3) YeWla&the Effective Date, ommerce reserves the right to forego all revenue sharing payments for the Progr due of W7- b. �fkl4iY@ , cr i- w „ A — - co mmercial Accounts and/or related accounts shall be deemed canceled effective upon termination of this.' Agreement or as otherwise provided herein, and all amounts outstanding under such Commercial Accounts shall vn standing t 'it foregoing, either party shall have the right to terminate this Agreement immediately, and ek without notice, upon the occurrence of any one or more of the following events, whereupon the obligations of Customer arising hereunder and/or under the Commercial Accounts shall automatically become immediately due rJ,(r and payable in full (except as otherwise provided by law): (i) Dissolution or liquidation of the other party; or (ii) Insolvency of the other party; or the institution by or against the other party of any bankruptcy or insolvency proceeding; or the appointment of a receiver or trustee for the other party; or the other party enters into an arrangement with, or for the benefit of, its creditors; or (iii) Any material adverse change in the financial condition of the other parry; or (iv) Any default hereunder, or breach of the obligations undertaken herein, or in any other agreement by and between the parties hereto; or (v) Upon the occurrence of any event in any agreement which would allow Commerce or any other person to declare any indebtedness owing by Customer due and payable in full (and Customer shall give Commerce immediate notice of the occurrence of such event); or (vi) A change in the ownership of Customer, or a sale of all or substantially all of the Customer's assets. N 4� 2 low. 8. 9: Wlez- 1IYC��t' 7c r ((JJ REPORTING. Commerce will, either directly or indirectly through its third party vendors, receive data from the transactions made the Commercial Accounts such data will be delivered to C jo lomer N tfi am Addendtan-B !try W !I Wry 14F on, grouping, reporting, 110 in connection tM v .. nor STONIER LIABILITY. ept for a proven Unauthorized Charge, the Customer shall be solely liable for the payment of all c unreal In the Commercial Accounts e.�ept m provided in Paragraph B babe, B. The Customer shall no le for the payment of charges incurred in the use of rcial Accounts If such charges relate to: 1. Charges waived as set forth in ver of Liability or M and Zero Liability documentation as amended from nine to time; 2, Commercial Account transaations after the original time for a Commercial Account where the request by the Customer was made In actor a with the I of this Agreement during normal business hours; or " 3. The use of a stolen Commercial oust number if the Commerdfiti(ecou bar is reported stolen vile facsimile, electronic mail ephone as provided In this Agreement I1 Yt 111 - (24) hours after rite Customer, inciudi oat limttatio Account Holder, discovers. or u a e eft of the Commercial Account number; prov ed that tf mmereial Acco is not re stolen within such time frame, the Customer shall be liable for alF�chorges associated en Commercial Account number until the date the Customer notifies Commerce of such theft. 10 ASSIGNMENT. Neither party shall sell, assign or transfer this Agreement or arty port thereof without the prior written consent of the other party; provided, however, Commerce may, without the consent of the Customer, assign any or W of its rights and obligations under this Agreement to its parent, any subsidiary (of Commerce or its parent). or any affiliate (of Commerce or its parent) or to arty other parry pursuant to a merger, acquisition, consolidation, or reorganization .-r e NOTICES. All notices hereunder shall be in writing and shall be deemed duly given when personally delivered, when delivered by recognized overnight courier, or, three (3) days.aiter mailing if sent by certified or registered United States trail, return receipt requested, pomp prepaid, to the appropriate party at the address set forth below, or at such other address a the applicable parfrtimy.irdicate from time to time in wriung. Notice hereunder shall be seat: If to Cornnrercin If to Customer ' Commerce BapN A M, kL 1 Ann: Commetaiol Card S lices" = Amt: i Wavine II 1 Main Sheet Kansas City, MO 641 Q 1 34 _ -__ ... ___.__.,..._._. .......... _ Communications with Commerc7 erring disputed billings shall be trade by mail to Commercial Card Services, 811 Main Street, Kansas City, Missouri 64105 or by phone at 800 - 892 -7104. 12. CONFIDENTIALITY, Commerce and Customer will keep strictly confidential and will not use or disclose to any third pony or to any employee, officer, director or agent (except on a need to know basis) for airy purpose whatsoever (other than as contemplated herein or fbr a business evaluation of the Program performed by either party) all or any portion of the contents of the Program, including but not limited o, any of the terms of, conditions of or other facts concerning the Program and any written or oral information famished by Commerce or by Customer which is either nonpublic, confidential or proprietary in nature unless such use or disclosure is mutually agreed upon in writing by Customer attd Commerce: provided, however, Customer understands and acknowledges that atRliams of Commerce and vendon of Commerce will assist in the implementation and maintenance of, aced provision of various services under, the Program, and provided, further, that Commerce ray use Customer's name, Customer - provided ago, general industry/business description, and Customer's general. non trade -secret product usage in Commerce's customer listings and in its soles presentations without obtaining Customer's prior consent. in the event Customer is subject to a Public Record Law, Customer shall comply with the provisions of this Confidentiality paragraph only to the extent that such compliance is in accordance with the applicable Public Record Law Iornrrataedn Not trarmatead: tot lint !tip a U�' I3. INDE VINITY. Customer agrees to defend. Indenmdy and hold humless C era said its officers, directors, agents and employees iron and against any and all claims by third parties (inclu " ,without limitation Account Holders) and al'r costs (including reasonable attorneys' fees and costs), expenses and "lilies incurred by Commerce in connection with such claims, ansing from or as a result of the establishment of m (including, without limitation, the issuance o Commercial Accounts and/or the cancellation thereof and as ansing in connection with its use of On -Line Services identified in Addendum H), provided that such claims not the result of or connected with the gross negligence or willful misconduct of Commerce or the violation by mmerce of any low or regulation relating to Commercial Accounts Customer acknowledges that the pricing provide Addendum A is based on including this indemnification Commerce agrees to defend, indemnify end hold harmless the Customer and its officers, directors, agents and employees from and against any and all claims by third patties ( including reasonable attorneys' fees), expertses anti liabilities incurred by Customer in connection with such claims, arising from or as a result of the gross negligence or willful misconduct of Commerce. Ii. MISCELLANEOUS Q. Relationsltio: Notting contained in this Agreement shall be contsttuedto create any relationship for brokerage, agency, Joint venture, partnership or employment between Commerce , Customer, b. No Implied waivers The rights of arty party under any provision of dttsmem shall not be affected by its prior failure to require the performance by the other party under such or any other provision of this Agreement, nor shall the waiver by any party of a breach of any provisioon "'heof constitute a waiver of arty succeeding breach of the same or any other provision or constitute a waiver of ['provision itself. A waiver of any right or obligation hereunder must be in writing and signed by the parties to this AgaerneM C. Remedies In the event that either pony breaches or violates any of the obligations contained in this Agreement, and in addition to the rights and remedies o0kirWise provided in this Agreement, the other party shall be entitled to exercise any right or remedy available',Mi at law or in equity, including without limitation, termination of this Agreanwit. damages and injuncti relief. Thasik%rcise of arty right or remedy shall be cumulative. d. Comoiete Ameemc= Anundmen T_ ment comatuies the complete understanding between the parties hereto with respect to the sud>lecOitaite ofd and all print" or written communications and agreemems with respect thereto are it the ever= of any incan stency between this Agreement and any other agreements or documents fyy to the trnn5ttons contemplated heroin, this Agreement shall control, No alteration, amendment or madifiedtiQ t of arty of team and provisions in this Agreement shall be valid unless made pursuant to an Irtsuwrent in sighted by' panics hereto. e. Successors and Assens All the aiid provisions of this Agrarnem shall murc to the benefit of, and be binding upon, the parties hereto and their elective successors and permitted assigns. f. . Ate' The invalidity or a nenforceit4ity of any one or more portions. seraences, clauses or paragraphs to 3 ua this Agreement shall not affect the validity or enforceability of the remaining portions of this Agreement or any part atereot. Force hbig= Commerce shall not be in defuill of this Agreement to the extent than perfotma= of its oblideJayed or prevented by reason of any act of God war, terrorisnn tire, explosion flood an of ties oat unput or omission of a third petty, including but not limited to, telecommunications canters and r any othaFinaner beyond its reasonable control This Agreement shall be governed, construed and enforced according to rte laws of the State of anti y i • Commerce complies with the USA Patriot Act and laws administered by OFAC (The Office of Fat ign*Assets Control} These laws mandate that Commerce verify certain information about customers Commerce reserves the right, at any time, to request Information that may assist Commerce in compliance with these laws. Customer agrees to promptly provide such information as requested by Commerce. including, without to the SS jW&- SV(b), 9. 1 M LIMffATIONS Commerce and Customer agree that. L Commerce shall not be [fable fiar any losses, claims, or liabilities incurred by Customer that arise from any third par" mfLsal to horror and/or make use of any Cottmmtcial Account. /s s s i�- 1 Commercial Accounts and/or the cancellation thereof and actions arising in connection with its use of On -Line Services identified in Addendum B), provided that such claims are not the result of or connected with the gross negligence or willful misconduct of Commerce or the violation by Commerce of any law or regulation relating to Commercial Accounts. Customer acknowledges that the pricing provided in Addendum A is based on including this indemnification. Commerce agrees to defend, indemnify and hold harmless the Customer and its officers, directors, agents and employees from and against any and all claims by third parties (including reasonable attorneys' fees), expenses and liabilities incurred by Customer in connection with such claims, arising from or as a result of the grows negligence or willful misconduct of Commerce. 14. MISCELLANEOUS. a. Relationship: Nothing contained in this Agreement shall be construed to create any relationship for brokerage, agency, joint venture, partnership or employment between Commerce and Customer. b. No Implied Waivers: The rights of any party under any provision of this Agreement shall not be affected by its prior failure to require the performance by the other party under such provision or any other provision of this Agreement, nor shall the waiver by any party of a breach of any provision hereof constitute a waiver of any succeeding breach of the same or any other provision or constitute a waiver of the provision itself. A waiver of any right or obligation hereunder must be in writing and signed by the parties to this Agreement. C. Remedies: In the event that either party breaches or violates any of the obligations contained in this Agreement, and in addition to the rights and remedies otherwise provided in this Agreement, the other parry shall be entitled to exercise any tight or remedy available to it either at law or in equity, including without limitation, termination of this Agreement, damages and injunctive relief. The exercise of any right or remedy shall be cumulative. d. Complete Agreement: Amendments: Notwithstanding anything to the contrary herein (including, without limitation, Section 16 of this Agreement); (i) this Agreement constitutes the complete understanding between the parties hereto with respect to the subject matter hereof, (ii) all prior oral or written communications and agreements with respect thereto are superseded and (iii) in the event of any inconsistency between this Agreement and any other agreements or documents relating to the transactions contemplated herein. this Agreement shall control. No alteration, amendment or modification of any of the terms and provisions in this Agreement shall be valid unless made pursuant to an instrument in writing signed by the parties hereto. e. Successors and Assigns: All the terms and provisions of this Agreement shall inure to the benefit of, and be binding upon, the parties hereto and their respective successon and permitted assigns. f. Severability: The invalidity or unenforceability of any one or more portion%, sentences, clauses or paragraphs in this Agreement shall not affect the validity or enforceability of the remaining portions of this Agreement or any part thereof. g. Force Maieure. Commerce shall not be in default of this Agreement to the extent that performance of its obligations is delayed or prevented by reason of any act of God, war, terrorism, fire, explosion, flood, act of government or any act or omission of a third party, including, but not limited to, telecommunications carriers and utilities or any other matter beyond its reasonable control. h. 000 is Agreement shall be governed, construed, and enforced according to the laws of the State of r y1' un. , i. Patriot AT cti OFAC: Commerce complies with the USA Patriot Act and laws administered by OFAC (The Office of Foreign Assets Control). These laws mandate that Commerce verify certain information about customers. Commerce reserves the right, at any time, to request information that may assist Commerce in compliance with these laws. Customer agrees to promptly provide such information as requested by Commerce, including, t limits 'on, information about Account Holders. rvi 1: Notwithstanding anything to the contrary herein, Sections 5, 6(b), 9, 11, 12, 13, 14 and 16 shall survive the termination of this Agreement. • ' M _ 15. LIMITATIONS. Commerce and Customer agree that: a. C_ ommerce shall not be liable for any losses, claims, or liabilities incurred by Customer that arise from any third party's refusal to honor and/or make use of any Commercial Account. b. Customer agrees that Customer will not use any Commercial Account for any purpose t!� dee_ med_ i__ _llegal` M. RFP PROCESS. Customer hereby represents, warrants and acknowledges that (i) this Agreement was validly established pursuant to that certain Request for Proposal, titled LOI10- 5562 -E Payables, issued by Customer (the "RFP"); (ii) Customer evaluated the submissions of Commerce an cd�ertain other vendors pursuant to a competitive bidding process established under the RFP; and (ii) based on said evaluation, Customer decided to award the contract under the RFP to Commerce. n A- _ ._L-. _ I „ h Nom-. tlr712- � 17. EFFECTIVE DATE. Notwithstanding anything else contained herein to the contrary, this Agreement will be subject to Commerce performing due diligence and credit investigations and will be effective only upon execution by Commerce as of the date shown below (the "Effective Date'), IN WITNESS WHEREOF, this Agreement has been executed by the duly authorized officers of the parties hereto. Commerce Bank, N.A. (Kansas City, MO) Board of County Commissioners of Colder County, Florida (Commerce) (Customer) By: By: Title: Title: Effective Date: r ADDENDUM A Pricing and Payment Schedule Pricing Tenn The pricing outlined herein will expire in 60 days Wit January 2111 f css an Accounts Payable Agnxment is executed For each payment not mceived by the payment d the r ng statemem, s e ee ( nteresl wt or t Late Fee for Central BW ruVective Commctcial Account will be I DSU r mount past due. Any overdue period of less than one month is cotmkkted as one Accoants 4-- month in computing such interest. Unpaid its i monthly. For purposes of Otis paragraph, term "1 month" means a period beginning on any day of one month and endi f the following month. Visa and MasterCard puFhases made in currendes other than U.S. Dollars will be converted to U.S. Dollars urkr regulations estsbliU by Visa International and sat International. Visa conversion will be at a rate selected by Visa from the range of rates available in wholesales currency markets pi' le t 1 processing date, which may vary from the rate Visa itself receives, or the government-mandated rate in effect for International Service Fee the applirat date. MasterCard conversion rate will he selected by MasterCard, typically either a govemmau- mandated rate or a W.-m-ay, wholesavi d to ard. Conversion to U.S. Dollars may occur on a date other than the date of the transaction. Therefore, the coaversi a different from the rate in effect at the time of the transaction. Customer agrees to pay the convened amount, plus an inttaaadno seavice ee in the amount of t% of the transaction amount on purchases. For purchases made in US. dollars outside of the United Staw and its territories, Customer agrees to pay the transaction amount plus a I% service assessment fee. Returned Check Fee $29 per occurrence ACH Return S29 cacti aner first occurrence Phone Payment S15 each after first occurmnce S2 per statement after three occurrentx.K Statement Reprinting I= through certain software products selected by Customer. Other For information, copies or other reports not specified in this Addendum. C.Paq jerce charge Cusatingjuch fccsair- time. 4 Commerce Bank uses a "train the trainer" model. General training occurs wiM either in-person or WebEx/Phonc training with the Program Administrators. The Program Administrators, in rum, train the Account holders and system users on the Sonwan Initial Training chosen reporting and maintenance application. Additional Program Administrator training can be conducted via WebEx/Plone at no additional charge. )e Account Holder and system user training via Weblix/Phone will be charged at $25W— 1 v I c implementation Fee** 55AW WAIVED Annual Maintenance Fee** SS00 WAIVED i Routine maintenance and upgrades NO CHARGE Initial web-based or plane training for NO CHARGE Administrators* AP Fie Layouts O - No C]f e � �� ustom - in those uwanccs where this effon will generate a cost over W,UW Commerce will obtain a price quote for Customer. • (T(� .1it IiT lotion Reports `aLk _ No Charge fi Custom - sat a price quote for Customer. Other Custom Programming d Commerce will obtain a price quote for Customer ualcss development is mutually agreed upon by Customs and Commerce. Development hours beyond the initial 20 hours is typically charged u a rate of s 130.00 hour. / Ze G� Commerce will generate a billing suternent on a periodic basis as outlined below. All amounts owing on the Commercial Account , including fees and charges, shall be due and pit t in Anil on a grace period as ou0ined below, after the date of such statement. The statement will be transmitted to Customer via U.S. Mail or ark available by an alternative means as agreed upon by both parties. Week) 3 A 2. wt Owl 177 Id- W-1 IC,4� fY' (a) Commerce will pay Customer a venue share on a nthlybasi (b) Total Monthly Net Volume is d ned as gross purchase4 ess credits and fraudulent transaction amounts. (c) Monthlxoavments are based on a matrix schedule below. Payment tiers are calculated on total monthlj net volume, (a) 0 (b) In occur. Accounts Payable Program: Weetdy Ming, 3 day grace 1 will suspend revenue s pa f o yments or Central Billed accounts that becme delinquenD Commerce reserves the right to withhold or alter revenue share payments if any of the follow ing instances• (i) If the eve transaction (the gross dollar amount of purchases divided by total number aasactions) is below $750; pro d, however, that this Section 2(b)(i) shall not apply until the one- r anniversary ofAw. Effective Date of this ement. s a Rate falls below 2.25%. (ii. are a sa a d. _ av) Commerce may adjust Revenu hare dollars resulting from dulent tram,actionse (� c) Large Ticket Interchange (LTI) and Level 3 rchange (L3) vo will be paid on the following levels. LTI 40% and L3 6096. (d) Commerce (without written notice) adj t the ue sharing percentages, as provided below, at the end of each` cal dar quarter following a KSiil<Ete v te. ,,,� a ,,/ ? (i) Adjustments are based on the Pri ate, as publish in The WaKS ournal "Money Rates" column on the last business day of the mo mmediately preceding th day of the applicable billing cycle. (ii) Adjustments to reven s are based on Prime Rate fluctuatio not applicable while Prime Rate remains at, or below, the esta ed 4.00% floor. ' (iii) When the ' e Rate exceeds 4.00 %, Commerce will adjust the reven share percent payable using the grid below ommerce will use the same grid to determine subsequent revenu adjustments should the to increase or decrease from any newly established Pnme Rate level to Established Prime Rate at the time of this contract is 3.25%. For example, if Prime Rate is 5.00% at the end of a calendar quarter and the Customer has a Weekly Billing Cycle and a 3 -Day Grace Period, Commerce will reduce percentages in all revenue share tiers by 2 basis points (0.02 %). • +All line items ntaed with a' �*" are the costs associated with establishing the B3=m as referenced in Pam�ph 7.3f die Aarcement. f Signafurrs are on the following page./ �� .-el SO — $833,332 $0 — S9,999,999.99 5833,333 - S2,083,332 $10,000 000 - $24,999,999.9 77,..,-- $2 083 33 - $4 166 666 $25 000,000 - S49 999 999.99 54,166,667 - S6,249,999 550,000,000 - $74,999,999.99 $6,250 000 - $8,333,332 $75,000,000 - $99,999,999.99 $8,333,333+ $100,000,000+ 153 bps 1 will suspend revenue s pa f o yments or Central Billed accounts that becme delinquenD Commerce reserves the right to withhold or alter revenue share payments if any of the follow ing instances• (i) If the eve transaction (the gross dollar amount of purchases divided by total number aasactions) is below $750; pro d, however, that this Section 2(b)(i) shall not apply until the one- r anniversary ofAw. Effective Date of this ement. s a Rate falls below 2.25%. (ii. are a sa a d. _ av) Commerce may adjust Revenu hare dollars resulting from dulent tram,actionse (� c) Large Ticket Interchange (LTI) and Level 3 rchange (L3) vo will be paid on the following levels. LTI 40% and L3 6096. (d) Commerce (without written notice) adj t the ue sharing percentages, as provided below, at the end of each` cal dar quarter following a KSiil<Ete v te. ,,,� a ,,/ ? (i) Adjustments are based on the Pri ate, as publish in The WaKS ournal "Money Rates" column on the last business day of the mo mmediately preceding th day of the applicable billing cycle. (ii) Adjustments to reven s are based on Prime Rate fluctuatio not applicable while Prime Rate remains at, or below, the esta ed 4.00% floor. ' (iii) When the ' e Rate exceeds 4.00 %, Commerce will adjust the reven share percent payable using the grid below ommerce will use the same grid to determine subsequent revenu adjustments should the to increase or decrease from any newly established Pnme Rate level to Established Prime Rate at the time of this contract is 3.25%. For example, if Prime Rate is 5.00% at the end of a calendar quarter and the Customer has a Weekly Billing Cycle and a 3 -Day Grace Period, Commerce will reduce percentages in all revenue share tiers by 2 basis points (0.02 %). • +All line items ntaed with a' �*" are the costs associated with establishing the B3=m as referenced in Pam�ph 7.3f die Aarcement. f Signafurrs are on the following page./ �� .-el IN WITNESS WHEREOF, this Addendum A has been executed by the duly authorized officers of the parties hereto, and this Addendum A supersedes any prior Addendum A. Commerce Bank, N.A. (Kansas City, MO) Board of County Commissioners of Collier County, Florida (Commerce) (Customer) By: By: Title: Title: Effective Date: sfe&ke► . 44- 7 ADDENDUM B Election of On -Line Services Customer has elected certain On -Line Service(s) (each a "Service," collectively, the "Services. ") The Services are Internet based customer service offerings that enable Customers to inquire about accounts and transaction information, submit account change requests and download information about accounts, among other capabilities. The terms and conditions of the Agreement, including, without limitation, the provisions regarding Indemnification and Liability, govern the use of each Service. Customer understands and accepts the risk, inherent in the use of the Internet for each Service, including the potential for the risk of loss. Except as may otherwise be provided in paragraph 9 of the Agreement, Commerce is not responsible for any loss associated with the Customers use of any Service. By electing a Service, Customer agrees to pay the fees associated with the Service as listed in Addendum A. In addition, Customer agrees to use each Service only as provided in the User Guide relating to the Service in effect from time to time (the "User Guide ") and according to the provisions contained in the Service License Agreement, if any, between Customer and the Service provider. Use of any Service will require a user name and password. Customer acknowledges that Commerce is entitled to rely on the use of the user name and password as authorization for any transaction initiated using each Service. Customer is responsible for all transactions initiated or authorized using any Service. The password Customer selects is for its use and protection. Customer agrees to: (a) not disclose the password or otherwise make it available to anyone else; (b) use the password as instructed in the User Guide; (c) be liable for the password and for its use as described in the Agreement dttd/or the User Guide. Customer permits any person other than the Administrator to make use of any Service to perform any duty or F onsibiNty of the Administrator, Customer will have authorized that person to act as an Administrator and. orized access to accounts as allowed for by the Administrator. Customer will be responsible for all actions initiated or authorized by that additional or new Administrator using any Service. In addition, tstomer must execute and deliver proper documentation authorizing this additional or new Administrator to act r and on behalf of Customer, and Customer must provide such other documentation as may be requested by IN WITNESS WHEREOF, this Addendum B has been executed by the duly authorized officers of the patties hereto and this Addendum B supersedes any prior Addendum B. Commerce Bank, N.A. (Kansas City, MO) Title: Effective Dater Board of County Commissioners of Collier County, Florida (Customer) By: Title: ot, I , pba V Vt-/ ti C FORM A Form of Scope of Services under the Accounts Payable Program Implementation Specialist • Upon execution of the Agreement, Commerce will assign an "Implementation Specialist" dedicated to Implementing Customer's Program. • The Implementation Specialist acts as the project manager and day -to -day contact throughout the implementation process. • n �ecdlall may also ersee rtain other activities and tasks during the implementation y ihe o o g : ent of the vendor - enrollment process during implementatiorytonmmerce ith newly enrolled vendors to ensure proper participation Facilitation of initial and subsequent training of Program Administrators Interface o oornaon with a "Relationship Manager", who will begin to oversee Customer's Program during or shortly after the Transition Period (as defined on the last page). The Implementation Specialist and the Relationship Manager will provide Customer an account review during or shortly after the Transition Period. Thereafter, the Relationship Manager will establish with Customer a scheduled account review that may occur as often as quarterly. Additional General Information Regarding Vendor Enrollment • Customer will provide Commerce with a list of vendors to contact for enrollment in the Program. Customer will rank the vendors by volume. Wel tG a v - • Commerce will input vendor information and assign one or more "Enrollment Specialists ", who will be part of an "Enrollment Team ", to facilitate the vendor - enrollment process. • Unless instructed otherwise by Customer, the Enrollment Team will follow a "top down" routine, calling on the largest vendors first (as ranked by Customer as provided above), thus securing higher return. • A vendor search will be performed before each call to identify historical vendor participation. • Commerce will prepare for Customer's approval a customized letter describing the Program for Customer's vendors. Commerce may provide such approved letter to those vendors who request a written Program description. • Commerce will provide weekly enrollment reports prior to the Live Launch (as defined on the last page). Following the Live Launch, Commerce will provide enrollment reports as often as may be determined by - Commerce in Its reasonable lscretion. Relationship Management Commerce will assign a "Relationship Management Team", which will begin to oversee Customer's Program during or shortly after the Transition Period. The Relationship Management Team will consist of a Relationship Manager and may also include the following categories of Commerce personnel: • Project Manager(s) • Implementation Specialist(s) • Systems Technology Expert(s) • Customer Service Support Desk Personnel. The number of personnel assigned to any given area of expertise will be determined by Commerce. The Program Administrator Center shall be available to Customer during the hours of 8:00 am — 5:00 prrfcsT. The Cardholder Support Center will be available 24 hours a day, 7 days a week, and 362 days a year (dosed on Thanksgiving, Christmas, and New Year's Day). 7 s /1/rs- Implementation Process The implementation process Is described below in general terms. Timeframes provided are estimates only and, in any case, are dependent on the timely receipt of Customer - provided data and information necessary for Commerce to implement the Program. Week One: Program Kickoff Call • Program Plan & Parameters • Implementation Team Introductions • Program Overview ! • Identify Customer Program Goals • Obtain Program Specifications Vendor Enrollment Methodology & Vendor List Criteria Provide AP Payment File Specifications Setup Reoccurring Call Week Two: Reoccurring Call • Program Parameters • Validate Program Specifications • Confirm AP Payment File Specification • Establish Target Date for Test AP Payment File Validation • Obtain Vendor Letter Content /Design Approval Week Three: Reoccurring Call • Program Rollout • If AP Payment Test File is Validated, Vendor Enrollment Campaign is Initiated • First Vendor Enrollment Update Provided on Friday Week Four: Reoccurring Call • Program Review and Training • Control Pay Advanced Training Vendor Enrollment Update Provided on Friday For a successful implementation, Commerce requires the assistance and involvement of at least the following Customer personnel or their designees/equivalents. All time estimates below are approximations only. • Accounts Payable Clerk — 1 hour per week • Runs day to day accounts payable activities • Will be training on ControlPay Advanced • Manages general vendor activity /communication • Director of Finance —1 hour /kickoff call • Business Manager —1 hour /kickoff call • ERP Support Staff -1 hour /kickoff call o May be involved in generating CPA Payment Test File • Customer may assign additional staff at Its discretion. Commerce estimates that It will have the Program established on its systems In as few as ten business days from the date of the Kickoff Call (the "Kickoff Period "), subject to Customer's cooperation at all times prior to and following the Live Launch. Assuming that Customer Is able to provide a vendor list (Vendor Name, Vendor ID, Telephone Number and Annual spend) and that the CPA Payment T t File is produced and validated during the Kickoff Period, ' % c Ilan Commerce estimates that the live Launch will occur in as few as ten business days from the last date in the Kickoff Period. When all of the above implementation steps are completed and the first payment Is made to an enrolled vendor, the Implementation Specialist will coordinate the ControlPay Advanced training session with the Program Administrator. At the completion of such training, the Program will be considered fully Implemented (the "live Launch "). The Implementation Specialist will continue to work with the Program Administrator for approximately three months following the live Launch (the 'Transition Period") to ensure that all aspects of the Program are running as expected and that comprehension of the ControlPay Advanced application is in place. At the end of the Transition Period, the Program will be formally transitioned to the Relationship Manager who will continue to work with Customer throughout the duration of Customer's Program. Once the Program has transitioned to the Relationship Manager, Commerce recommends a scheduled review of the vendor list to ensure that all enrolled vendors are activated for payment and that newly signed vendors are provided to the Enrollment Team for contact. 5 77 7 OP,�� t 1116 11111101., d ' c rcu ces ' �. mer w 'mmerc'. cou 2 r 1 #eo *0`7 _6ill.2 WoodLyn From: Crystal K. Kinzel [Crystal. Kinzel @collierclerk.com] Sent: Friday, May 27, 2011 11:26 AM To: CarnellSteve; WoodLyn; VaientineLinda Cc: Connie C. Murray; Bonnie L. Baer; Edith C. Manuel; Kelly Jones; Jane M. McDonald; Marc Tougas; PriceLen Subject: e- payables contract notes Attachments: Commerce_Bank_A_P_Agreement.pdf Steve, attached are my comments from the meeting notes(any difficulty reading or translating let me know). Additionally: There was agreement to get on -line overview of reports available so that we can validate the ability to reconcile. Bruce(from Commerce) was to get Revenue sharing information and level of detail available for the reconciliation of the rebate. We were also seeking a list of potential vendors from Commerce to give us the information for purchasing to begin Master file cleanup based upon most likely vendors. And as follow up but not specifically discussed, based upon the information we did discuss regarding letter of credit, rebate rates etc is the LOI sufficient to have determined the vendor selection? It did not seemingly include rate or structure for comparison to proposers? And I think we now all agreed that this needs to be approved by the Clerk and the BCC PRIOR to implementation. Crystal K. Kinzel Director of Finance and Accounting Clerk of the Circuit Court Collier County Government Center 3301 E. Tamiami Trail Bldg F 4th Floor Naples, FL 34112 (239)252 -6299 Crystal.KinzelC@Collierclerk.com Please visit us on the web at www.colliercierk.com This electronic communication is confidential and may contain privileged information Intended solely for the named addressee(s). It may not be used or disclosed except for the purpose for which it has been sent. If you are not the intended recipient, you must not copy, distribute or take any action induced by or in reliance on information contained in this message. Unless expressly stated, opinions in this message are those of the individual sender and not of the Office of the Clerk of the Circuit Court of Collier County. If you have received this communication in error, please notify the Clerk's Office by emailing helodesk0collierclerk.com quoting the sender and delete the message and any attached documents. The Collier County Clerk's Office accepts no liability or responsibility for any onward transmission or use of emails and attachments having left the Collie rClerk.com domain. Under Florida Law, e-mail addresses are public records. If you do not want your e-mail address released in response to a public records request, do not send electronic mail to this entity. Instead, contact this office by telephone or in writing. COMMERCE BANK ACCOUNTS PAYABLE AGREEMENT THIS COMMERCE BANK ACCOUNTS PAYABLE AGREEMENT is made and entered into as of the Effective Date by and between Commerce Bank, N.A. (Kansas City, MO) ( "Commerce ") and Board of County Commissioner&6d Collier County. Florida ( "Customer "). 4- I,DEFINITIONS. The following terms shall have the following meanings: a. "Administrator" means, individually and collectively, one or more employees, officers, directors, or agents of the Customer who are designated by the Customer to assist Commerce in the administration of the Program. b. "Agreement" means this Commerce Bank Accounts Payable Agreement and all Addenda from time to time executed by the parties and attached hereto, and all amendments to the foregoing. C. "Account Holder" means Customer and any of its officers, directors, agents and employees who utilize the Commercial Accounts. d. "Commercial Accounts" means the Visa or MasterCard account numbers associated with the Commercial Accounts issued by Commerce to the Customer and its Account Holder(s) and the account numbers assigned to Customer without an associated plastic under the Program. e. "Effective Date" shall be defined as set forth in Section 446-IL f. "Program" means the Accounts Payable Program administered by Commerce as set forth in this Agreement. g. "Public Record Law" means any state's law which provides that Customer's contracts are open and available to the public. h. "Unauthorized Charge" means a charge made by an Account Holder to a Commercial Account that (i) has not been authorized by Customer, and (ii) has been accepted and processed by a merchant having the technology capable of determining and confirming that the charge did not meet the parameters established by Customer for authorized charges. 2. PROGRAM; ISSUANCE AND RENEWAL. a. During the term hereof, and subject to the terms and conditions of this Agreement, Commerce agrees to provide the Customer with the Program and to issue Commercial Accounts to Customer. Anached her=-as Form A is a o n r 1 de crintion and overview of the process of implementing the Program Customer acknowledges and ForM A is iaWnded tQ be 2CnerW in nature and that al] dc5grintion5 ar,tiyities timeframes an i .'t- --s -u- 'aired in Form A are approximations or estimates only and are subject to cha_nag by Commerce. Customer further ackno3yledgec and agrees that Commerce's ability to implement the Pro¢ra*n on a timely bbmis is dependent upon the cooperation of CugQmer during and following the implementation process and upon Customer's providing all information and data necessary to implement the Programs b. Commerce shall issue Commercial Accounts to the Customer, provided that a Commercial Account issuance request has been made by an Administrator in the form required by Commerce. C. Each Commercial Account shall be valid for the term indicated thereon, unless such Commercial Account has been canceled by Commerce pursuant to the provisions of this Agreement or at the request of the Customer. d. Commerce acknowledges the ability of Customer to revoke any authority given to an Account Holder, at Customer's discretion upon proper notice to Commerce; provided, however, that Customer shall remain liable for all charges made to each Commercial Account as provided in this Agreement. 3. BILLING PROCEDURES. Commerce offers the billing method described below: Central Billed Accounts: Except as otherwise provided herein, Customer shall be liable for all charges made to each Commercial Account requested by Customer. Charges shall be set forth on a billing statement and shall be paid by the Customer as agreed in Addendum A attached hereto and incorporated herein by this reference, and as set forth herein. Except for a proven Unauthorized Charge or as otherwise expressly provided herein, Customer shall pay Commerce for all charges made to each Commercial Account within the time period provided in Addendum A. Except as provided herein, Commerce shall have no duty or obligation to inquire into the nature of any transaction charged by any Account Holder (e.g., whether such transaction was for a business or personal use.) 4. PROGRAM ADMINISTRATOR. Upon signing this Agreement, Customer shall designate one or more Administrator(s) to assist Commerce in the administration of the Program. In addition to any other duties listed elsewhere in this Agreement, as well as any other duties reasonably requested by Commerce, the Administrator shall undertake the • following duties on behalf of the Customer: • I 6. 7 a. The Administrator shall have the responsibilities assigned in the Program Administrator Delegation document provided by Customer to Commerce, including, without limitation, the ability to request that Commerce issue Commercial Accounts to any person in connection with the Program, to increase or decrease credit limits, to suspend Commercial Accounts, to order or block wire transfers and convenience checks, and to perform any other maintenance activity. b. The Administrator shall be familiar with all aspects of the Program, including, but not limited to Program procedures, number and status of Commercial Accounts, notice requirements, any disputed transactions, credit limits, statement cycles, billing and payment procedures, general program parameters and status of delinquent charges. C. The Administrator shall be responsible for notifying Commerce, in writing, about changes in authorization codes. d. The Administrator shall be proficient in the use of the On -Line Service(s) selected by Customer as described in Addendum B. FEES. Commerce shall be paid fees and charges set forth in Addendum A. Customer acknowledges that Commerce has based the fees and charges upon the projections given by Customer regarding transaction volume, average ticket amount, number of Commercial Accounts, monthly credit line requested, reporting product selected, and frequency of payment. Fees may be subject to change from time to time by Commerce upon ninety (90) days' prior written notice unless otherwise specified in Addendum A. LINE OF CREDIT. Commerce will establish a maximum line of credit amount for Customer. a. All amounts charged to the Commercial Accounts together with any fees and charges owed to Commerce by Customer in connection with the Program, may not exceed, in the aggregate, the line of credit amount unless Commerce in its sole discretion authorizes such charges. b. Commerce may, at any time in its sole discretion, modify the amount of Customer's line of credit upon thirty (30) days' prior written notice to Customer; provided, however, that Customer may elect to terminate this Agreement by written notice to Commerce during such thirty (30) day notice period; provided, further, Customer agrees that if any amounts are outstanding on the Commercial Accounts which exceed the adjusted line of credit amount, Customer will immediately pay Commerce such excess amounts. C. From time to time, Commerce may request and Customer shall produce financial records relating to the financial condition of Customer. Customer shall produce such records not later than thirty (30) days following such request. The financial records may be requested as often as quarterly, or for any such other time period as may be reasonably determined by Commerce. Customer shall, upon reasonable request by Commerce, send its annual audit to Commerce within/ days of its completion by Customer's auditor. TERM OF AGREEMENT AND RENEWAL. This Agreement shall remain in full force and effect until terminated by either party as herein set forth. Either party may terminate this Agreement at any time, with or without cause, upon thirty (30) days' prior written notice. a. In the event Customer terminates this Agreement prior to the date that is three (3) years from the Effective Date, Commerce reserves the right to forego all revenue sharing payments for the Program due after termination. b. In the event Customer terminates this Agreement without cause prior to the date that is three (3) years from the Effective Date, Customer shall pay to Commerce all costs associated with establishing the Program as provided in Addendum A. C. All Commercial Accounts and /or related accounts shall be deemed canceled effective upon termination of this Agreement or as otherwise provided herein, and all amounts outstanding under such Commercial Accounts shall automatically becomeimnneclWW) due and payable in full by Customer without further notice. LK GtGGO/O(A -w d. Notwithstanding the foregoing, either party shall have the right to terminate this Agreement immediately, and without notice, upon the occurrence of any one or more of the following events, whereupon the obligations of Customer arising hereunder and /or under the Commercial Accounts shall automatically become immediately due and payable in full (except as otherwise provided by law): (i) Dissolution or liquidation of the other party; or (ii) Insolvency of the other party; or the institution by or against the other party of any bankruptcy or insolvency proceeding; or the appointment of a receiver or trustee for the other party; or the other party enters into an arrangement with, or for the benefit of, its creditors; or (iii) Any material adverse change in the financial condition of the other party; or 2 '. 'by. "M" 7 s ,a- (iv) Any default hereunder, or breach of the obligations undertaken herein, or in any other agreement by and • between the parties hereto; or (v) Upon the occurrence of any event in any agreement which would allow Commerce or any other person to declare any indebtedness owing by Customer due and payable in full (and Customer shall give Commerce immediate notice of the occurrence of such event); or (vi) A change in the ownership of Customer, or a sale of all or substantially all of the Customer's assets. 8. REPORTING. Commerce will, either directly or indirectly through its third party vendors, receive data from the transactions made with the Commercial Accounts; such data will be delivered to Customer as specified in Addendum A and Addendum B. Commerce shall have no responsibility or liability for the capture, transmission, grouping, reporting, categorizing or any other act performed or required to be performed in connection with the foregoing data that Customer's vendors are transmitting at the point of sale. 9. CUSTOMER LIABILITY. A. Except for a proven Unauthorized Charge, the Customer shall be solely liable for the payment of all charges incurred in the use of Commercial Accounts except as provided in paragraph B below. B. The Customer shall not be liable for the payment of charges incurred in the use of Commercial Accounts if such charges relate to: 1. Charges waived as set forth in Visa Waiver of Liability or MasterCard Zero Liability documentation, as amended from time to time; 2. Commercial Account transactions after the original closure request date for a Commercial Account where the request by the Customer was made in accordance with the terms of this Agreement during normal business hours; or 3. The use of a stolen Commercial Account number if the Commercial Account number is reported stolen via facsimile, electronic mail or telephone as provided in this Agreement within twenty-four (24) hours after the Customer, including, without limitation, any Account Holder, discovers, or, using reasonable care should have discovered, the theft of the Commercial Account number; provided that if the Commercial Account number is not reported stolen within such time frame, the Customer shall be liable for all charges associated with the stolen Commercial Account number until the date the Customer notifies merce of su h theme. p-r-i fod �...� 10. ASSIGNMENT. Neither party shall sell, assign or transfer this Agreement or any part tt ereof without the prior written consent of the other party; provided, however, Commerce may, Customer, assign any or all of its rights and obligations under this Agreement to its parent, any subsidiary (of Commerce or its parent), or any affiliate (of Commerce or its parent) or to any other party pursuant to a merger, acquisition, consolidation, or reorganization. H. NOTICES. All notices hereunder shall be in writing and shall be deemed duly given when personally delivered, when delivered by recognized overnight courier, or, three (3) days after mailing if sent by certified or registered United States mail, return receipt requested, postage prepaid, to the appropriate party at the address set forth below, or at such other address as the applicable party may indicate from time to time in writing. Notice hereunder shall be sent: If to Commerce: if to Customer: Commerce Bank, N.A. Collier County, Florida Attn: Commercial Card Services Attn, Linda Valentine I 811 Main Street -33M East Tamiami Trail Kansas City, MO 64105 Naples, FL 34112 Communications with Commerce concerning disputed billings shall be made by mail to Commercial Card Services, 811 Main Street, Kansas City, Missouri 64105 or by phone at 800 - 892 -7104. 12. CONFIDENTIALITY. Commerce and Customer will keep strictly confidential and will not use or disclose to any third party or to any employee, officer, director or agent (except on a need to know basis) for any purpose whatsoever (other than as contemplated herein or for a business evaluation of the Program performed by either party) all or any portion of the contents of the Program, including but not limited to, any of the terms of, conditions of or other facts concerning the Program and any written or oral information furnished by Commerce or by Customer which is either nonpublic, confidential or proprietary in nature unless such use or disclosure is mutually agreed upon in writing by Customer and Commerce; provided, however, Customer understands and acknowledges that affiliates of Commerce and vendors of Commerce will assist in the implementation and maintenance of, and provision of various services under, the Program; WFAW Mel) and provided, further, hat Commerce may use Customer's name, Customer - provided logo, general industry/business • description, and Cust mer's general, non trade- secret product usage in Commerce's customer listings and in its sales presentations obtaining Customer's prior consent. In the event Customer is subject to a Public Record Law, Customer shall comply with the provisions of this Confidentiality paragraph only to the extent that such compliance is in accordance with the applicable Public Record Law. 13. INDEMNITY. Customer agrees to defend, indemnify and hold harmless Commerce and its officers, directors, agents and employees from and against any and all claims by third parties (including, without limitation, Account Holders) and all costs (including reasonable attorneys' fees and costs), expenses and liabilities incurred by Commerce in connection with such claims, arising from or as a result of the establishment of the Program (including, without limitation, the issuance of Commercial Accounts and/or the cancellation thereof and actions arising in connection with its use of On -Line Services identified in Addendum B), provided that such claims are not the result of or connected with the gross negligence or willful misconduct of Commerce or the violation by Commerce of any law or regulation relating to Commercial Accounts. Customer acknowledges that the pricing provided in Addendum A is based on including this indemnification. The foregoing indemnification shall not constitute a waiver of sovereign immunity bevond the limits set forth in Section 768.28, Florida Statutes. Commerce agrees to defend, indemnify and hold harmless the Customer and its officers, directors, agents and employees from and against any and all claims by third parties (including reasonable attorneys' fees), expenses and liabilities incurred by Customer in connection with such claims, arising from or as a result of the gross negligence or willful misconduct of Commerce. 14. MISCELLANEOUS. a. RelationshiR: Nothing contained in this Agreement shall be construed to create any relationship for brokerage, agency, joint venture, partnership or employment between Commerce and Customer. b. No Implied Waivers: The rights of any party under any provision of this Agreement shall not be affected by its prior failure to require the performance by the other party under such provision or any other provision of this Agreement, nor shall the waiver by any party of a breach of any provision hereof constitute a waiver of any • succeeding breach of the same or any other provision or constitute a waiver of the provision itself. A waiver of any right or obligation hereunder must be in writing and signed by the parties to this Agreement. C. Remedies: In the event that either party breaches or violates any of the obligations contained in this Agreement, and in addition to the rights and remedies otherwise provided in this Agreement, the other party shall be entitled to exercise any right or remedy available to it either at law or in equity, including without limitation, termination of this Agreement, damages and injunctive relief. The exercise of any right or remedy shall be cumulative. d. Complete Agreement, Amendments: 444sNotwith5tanding anything to the contrary herein (including. without imitation. Section 16 of this AgrttmmUJJ:iJAbia Agreement constitutes the complete understanding between the parties hereto with respect to the subject matter hereof, andLW all prior oral or written communications and agreements with respect thereto are superseded —Fe and (iii) in the event of any inconsistency between this Agreement and any other agreements or documents relating to the transactions contemplated herein, this Agreement shall control. No alteration, amendment or modification of any of the terms and provisions in this Agreement shall be valid unless made pursuant to an instrument in writing signed by the parties hereto. e. Successors and Assigns: All the terms and provisions of this Agreement shall inure to the benefit of, and be binding upon, the parties hereto and their respective successors and permitted assigns. f. Severability: The invalidity or unenforceability of any one or more portions, sentences, clauses or paragraphs in this Agreement shall not affect the validity or enforceability of the remaining portions of this Agreement or any part thereof. g. Force Majeure. Commerce shall not be in default of this Agre99innent to the extent that performance of its obligations is delayed or prevented by reason of any act of,Ge , war, terrorism, fire, explosion, flood, act of government or any act or omission of a third party, including, but not limited to, telecommunications carriers and utilities or any other matter beyond its reasonable control. h. Governing L�$�,y : This Agreement shall be governed, construed, and enforced according to the laws of the State�of i. Patriot Act/ OFAC: Commerce complies with the USA Patriot Act and laws administered by OFAC (The Office of Foreign Assets Control). These laws mandate that Commerce verify certain information about customers. Commerce reserves the right, at any time, to request information that may assist Commerce in compliance with • these laws. Customer agrees to promptly provide such information as requested by Commerce, including, without limitation, information about Account Holders. 4 a'.266 ✓6,%ve- /h- -*--7 1s0-151- j. Survival: Notwithstanding anything to the contrary herein, Sections 5, 6(b), 9, 11, 12, 13, JLand 4.4 shall • survive the termination of this Agreement. 15. LIMITATIONS. Commerce and Customer agree that: a. Commerce shall not be liable for any losses, claims, or liabilities incurred by Customer that arise from any third parry's refusal to honor and/or make use of any Commercial Account. b. Customer agrees that Customer will not use any Commercial Account for any purpose that has been deemed illegal. 16. REP PROCESS Customer hereby reoresentc warrants and acknowledges that (i) this Agreement was validly established pursuant to that gcl in Reauest for Proposal titled LOI10- 5562 -E Payables. issued by Customer (the "REP"). (iil Customer evaluated the submissions of ComMerqc and certain other vendors pursuant to a competitive bidding process cstablished under the RFP• and (iii) bac_ed on said evaluation Customer decided to award the contrast under the REP-to Commerce. 17• EFFECTIVE DATE. Notwithstanding anything else contained herein to the contrary, this Agreement will be subject to Commerce performing due diligence and credit investigations and will be effective only upon execution by Commerce as of the date shown below (the "Effective Date "). IN WITNESS WHEREOF, this Agreement has been executed by the duly authorized officers of the parties hereto. Commerce Bank, N.A. (Kansas City, MO) Board of County Commissioners,.af Collier County, Florida (Commerce) (Customer) By: By: Title: Title: Fred W. Coyle Chairman . Effective Date: Approved as to form and legal sufficiency: Assistant County Attorney Print Name ATTEST: Dwight E. Brock, Clerk of Courts By: Dated: (SEAL) ADDENDUM A Pricing and Payment scneduie Pricing Term The pricing outlined herein will expire in 60 days fr om January 20', 2011 unless an Accounts Payable Agreement is executed For each payment not received by the payment due date shown on the billing statement, a late fee ("interest„1 will be charged. 4he4ate-fee1n for Late Fee for Central Bill the respective Commercial Account will be the amount past due. Any overdue period of less than one month is sanii er "I Accounts m Me month in computirasuch interest, Unpaid immst is i;=pwndcdmg&thjx, E2l; plIMUM gf jbiS pulligggh the term in It neri b ei nine on any day of one month and endina on the same day of the followine mon rr%pt 011 Visa and MasterCard purchases made in currencies other than U.S. Dollars will be converted to :S. Dollars under regulations established by Visa International and MasterCard International. Visa conversion will be at a rate selected by Visa from the range of rates available in wholesales currency markets for the applicable central processing date, which may vary from the rate Visa itself receives, or the govemment - mandated rate in effect for the applicable central processing date. MasterCard conversion rate will be selected by MasterCard, typically either a government- mandated rate or a International Service Fee wholesale rate provided to MasterCard. Conversion to U.S. Dollars may occur on a date other than the date of the transaction. Therefore, the conversion rate may be different from the rate in effect at the time of the transaction. Customer agrees to pay the converted amount, plus an international service fee in the amount of -2r% of the transaction amount on purchases. For purchases made in U.S. dollars outside of the United States and its territories, Customer agrees to pay the transaction amount plus a 1% service assessment fee. I I i� Returned Check I Fee $29 per occurrence ACH Return $29 each after first occurrence Phone Payment $15 each after first occurrence $2 per statement after three occurrences Statement Reprinting Free through certain software products selected by Customer. For information, copies or other reports not specified in this Addendum, Commerce may charge Customer such fees as Other Customer and Commerce may agree from time to time. Commerce Bank uses a "train the trainer" model. General training occurs with either in- person or WebEx/Phone training with the Program Administrators. The Program Administrators, in turn, train the Account Holders and system users on the chosen reporting and maintenance application. Additional Program Administrator training can be conducted via WebEx/Phone at no additional charge. Software Initial Training Account Holder and system user training via WebEx/Phone will be charged at $250/hour. 0AFOWF 081H 60 ehdf,-" 01 PIUS fFO%'@' in person fFetiRifig 509gieRS (&ROF 114W Ffegmm Admin SORWaft 148) 0-25GAOUF Implementation Fee** $5,000 WAIVED Annual Maintenance Fee "' $500 WAIVED Routine maintenance and upgrades NO CHARGE Initial web -based or phone training for NO CHARGE Administrators* AP File Layouts 'i Standard - No Charge Custom -in those instances where this effort will generate a cost over $3,000, Commerce will obtain a price quote for Customer. Reconciliation Reports Customized Programming Standard - No Charge Custom - Commerce will obtain a price quote for Customer. Other Custom Programming ee Commerce will obtain a price quote for Customer unless development is mutually agreed upon by Customer and Commerce. Development hours beyond the initial 44DN hours is typically charged at a rate of $150.00 per hour. on a grace period as outlined below, after the date of such statement. The statement will be transmitted to Customer via U.S. Mail or made available by an alternative means as upon by both parties. 1. Revenue Share. (a) Commerce will pay Customer a revenue share on a monthly basis. (b) Total Monthly Net Volume is defined as gross purchases less credits and fraudulent transaction amounts. (c) Monthly payments are based on the matrix schedule below. Payment tiers are calculated on total monthly net volume and will be made 3 months in arrears. Accounts Pavable Program: Weekly billing, 3 day ¢race 2. Adjusting Revenue Share. (a) Commerce will suspend revenue share payments for Central Billed accounts that become delinquent. (b) In addition, Commerce reserves the right to withhold or alter revenue share payments if any of the following instances occur: (i) If the average transaction (the gross dollar amount of purchases divided by total number of transactions) is below $�Sn' ^ * ^v����+ h��. A. a� that this SePtinn 2lhllil c_hall not annly until the one -veer anniversary of Effective Date of this ¢reement. • (ii) If Customer's average Interchange Rate falls below 2.25 %. (iii) If Interchange Rates are significantly altered by Visa and / or MasterCard. (iv) Commerce may adjust Revenue Share dollars resulting from fraudulent transactions. (c) Large Ticket Interchange (LTI) and Level 3 Interchange (L3) volume will be paid on the following levels. LTI 40% and L3 60 %. (d) Commerce may (without written notice) adjust the revenue sharing percentages, as provided below, at the end of each calendar quarter following the Agreement Effective Date. (i) Adjustments are based on the Prime Rate, as published in The Wall Street Journal "Money Rates" column on the last business day of the month immediately preceding the first day of the applicable billing cycle. (ii) Adjustments to revenue share based on Prime Rate fluctuations are not applicable while Prime Rate remains at, or below, the established 4.00% floor. (iii) When the Prime Rate exceeds 4.00 %, Commerce will adjust the revenue share percent payable using the grid below. Commerce will use the same grid to determine subsequent revenue share adjustments should the Prime Rate increase or decrease from any newly established Prime Rate level in future quarters. (iv) The Established Prime Rate at the time of this contract is 3.25 %. For example, if Prime Rate is 5.00% at the end of a calendar quarter and the Customer has a Weekly Billing Cycle and a 3 -Day Grace Period, Commerce will reduce percentages in all revenue share tiers by 2 basis points (0.02 %). **All line items noted with a *'**" are the costs associated with establishing the a Program as referenced in Paragraph 7 of the AUSement • ! ienatures are on the followine naud I 7 $0 — $833,332 $0 — $9,999,999.99 bps $833,333 - $2,083,332 $10,000,000 - $24,999,999.99 bps $2,083,333 - $4,166,666 $25,000,000 - $49,999,999.99 bps 7153bps $4,166,667 - $6,249,999 $50,000,000 - $74,999,999.99 bps $6,250,000 - $8,333,332 $75,000,000 - $99,999,999.99 bps $8,333,333+ $100,000,000+ 2. Adjusting Revenue Share. (a) Commerce will suspend revenue share payments for Central Billed accounts that become delinquent. (b) In addition, Commerce reserves the right to withhold or alter revenue share payments if any of the following instances occur: (i) If the average transaction (the gross dollar amount of purchases divided by total number of transactions) is below $�Sn' ^ * ^v����+ h��. A. a� that this SePtinn 2lhllil c_hall not annly until the one -veer anniversary of Effective Date of this ¢reement. • (ii) If Customer's average Interchange Rate falls below 2.25 %. (iii) If Interchange Rates are significantly altered by Visa and / or MasterCard. (iv) Commerce may adjust Revenue Share dollars resulting from fraudulent transactions. (c) Large Ticket Interchange (LTI) and Level 3 Interchange (L3) volume will be paid on the following levels. LTI 40% and L3 60 %. (d) Commerce may (without written notice) adjust the revenue sharing percentages, as provided below, at the end of each calendar quarter following the Agreement Effective Date. (i) Adjustments are based on the Prime Rate, as published in The Wall Street Journal "Money Rates" column on the last business day of the month immediately preceding the first day of the applicable billing cycle. (ii) Adjustments to revenue share based on Prime Rate fluctuations are not applicable while Prime Rate remains at, or below, the established 4.00% floor. (iii) When the Prime Rate exceeds 4.00 %, Commerce will adjust the revenue share percent payable using the grid below. Commerce will use the same grid to determine subsequent revenue share adjustments should the Prime Rate increase or decrease from any newly established Prime Rate level in future quarters. (iv) The Established Prime Rate at the time of this contract is 3.25 %. For example, if Prime Rate is 5.00% at the end of a calendar quarter and the Customer has a Weekly Billing Cycle and a 3 -Day Grace Period, Commerce will reduce percentages in all revenue share tiers by 2 basis points (0.02 %). **All line items noted with a *'**" are the costs associated with establishing the a Program as referenced in Paragraph 7 of the AUSement • ! ienatures are on the followine naud I 7 7 s s /� • IN WITNESS WHEREOF, this Addendum A has been executed by the duly authorized officers of the parties hereto, and this Addendum A supersedes any prior Addendum A. Commerce Bank, N.A. (Kansas City, MO) Board of County Commlssionem,=g Collier County, Florida (Commerce) (Customer) By: By: Title: Title: Fred W Coyle Chairman • • Effective Date: Avyroved as to form and legal sufficiency: Assistant County Attorney Print Name ATTEST: Dwight E. Brock, Clerk of Courts By: Dated: (SEAL) s � �a- r ADDENDUM B Election of On -Line Services Customer has elected certain On -Line Service(s) (each a "Service," collectively, the "Services. ") The Services are Internet based customer service offerings that enable Customers to inquire about accounts and transaction information, submit account change requests and download information about accounts, among other capabilities. The terms and conditions of the Agreement, including, without limitation, the provisions regarding Indemnification and Liability, govern the use of each Service. Customer understands and accepts the risks inherent in the use of the Internet for each Service, including the potential for the risk of loss. Except as may otherwise be provided in paragraph 9 of the Agreement, Commerce is not responsible for any loss associated with the Customer's use of any Service. By electing a Service, Customer agrees to pay the fees associated with the Service as listed in Addendum A. In addition, Customer agrees to use each Service only as provided in the User Guide relating to the Service in effect from time to time (the "User Guide ") and according to the provisions contained in the Service License Agreement, if any, between Customer and the Service provider. Use of any Service will require a user name and password. Customer acknowledges that Commerce is entitled to rely on the use of the user name and password as authorization for any transaction initiated using each Service. Customer is responsible for all transactions initiated or authorized using any Service. The password Customer selects is for its use and protection. Customer agrees to: (a) not disclose the password or otherwise make it available to anyone else; (b) use the password as instructed in the User Guide; (c) be liable for the password and for its use as described in the Agreement and/or the User Guide. If Customer permits any person other than the Administrator to make use of any Service to perform any duty or responsibility of the Administrator, Customer will have authorized that person to act as an Administrator and authorized access to accounts as allowed for by the Administrator. Customer will be responsible for all transactions initiated or authorized by that additional or new Administrator using any Service. In addition, Customer roust execute and deliver proper documentation authorizing this additional or new Administrator to act for and on behalf of Customer, and Customer must provide such other documentation as may be requested by Commerce. . IN WITNESS WHEREOF, this Addendum B has been executed by the duly authorized officers of the parties hereto and this Addendum B supersedes any prior Addendum B. • Commerce Bank, N.A. (Kansas City, MO) Board of County Commissioners, .d Collier County, Florida (Commerce) (Customer) By: By: Title: Title: Effective Date: ATTEST: Dwight E. 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' ••. 11 11 1: -,• -w -•_ • • C • n U Document com arison by Workshare Professional on Friday, February 11, 201 1�eletie�T Document 1 ID Powerpocs://SLC /6286677/1 Description SLC- #6286677 -v1- Collier County,_Florida_- N4e%,ed deletiaff Accounts Payable__.Agreement Document 2 ID Powerpocs://SLC /6286677/4 Description SLC- #6286677 -v4- Collier County,_Florida_- Format changed .Accou nts_Payable_Agreement Rendering set Istandard G;hdd_ ywwz ihc_ /,e 7 �;/i�l.2_ 1 10:58:06 AM 1�eletie�T Insertions Moved to Style change Format change N4e%,ed deletiaff Inserted cell Moved to Deleted cell Style change Moved cell Format changed Split/Merged cell Total changes Padding cell G;hdd_ ywwz ihc_ /,e 7 �;/i�l.2_ 1 10:58:06 AM Count Insertions 135 Deletions 19 Moved from 0 Moved to 0 Style change 0 Format changed 0 Total changes 154 G;hdd_ ywwz ihc_ /,e 7 �;/i�l.2_ 1 10:58:06 AM S? S e ke*: Z,--W,, l eke*: 7 Tlik WoodL n From: CarneilSteve Sent: Thursday, June 02, 2011 4:55 PM To: WoodLyn Subject: FW: Collier E- Payables Follow Up From: Pujol, Christina fmailto Christina Pujol@ ommerceBank.coml Sent: Thursday, June 02, 2011 1:58 PM To: CarnellSteve; .CR- Battlefield Boardroom, Springfield, Cap. 22 Cc: Crystal K. Kinzel; ValentineLinda; TibbettsRhonda; Bodino, Frank; Jane M. McDonald; Connie C. Murray; Kelly Jones Subject: RE: Collier E- Payables Follow Up Hello Steve, It was a pleasure speaking to you yesterday. t'm happy to see that were moving forward and coming to the end0. I have ns asked Terence Mack and Clint Scott to respond to the and s ilohaveeno access to enmlais for wok until June 13 3e. completed. As we discussed, I leave to Europe y Terence Mack e-mail is Terence.mack @commercebank.com Thank you for your patience and have a wonderful week. Best regards, CFiriatina (Agar National Account Executive Vice President/Accounts Payable Solution Commerce Bank office: 305 - 662 -56271 Fax 305 -662 -56281 Cell: 305 - 926 -0899 4 k} 'ten = Solve _ _ _ _ __._._ ._... _,_ .... From: CamellSteve f rnail� to5teveCarneliacolliergov.netl Sent, Thursday, June 02, 2011 11:43 AM To: Pujol, Christina Cc: Crystal K. Kinzel; ValentineLinda; TibbettsRhonda; Bodino, Frank; Jane M. McDonald; Connie C. Murray; Key Jones Subject: Collier E- Payables Follow Up Christina, 's webinar. In Thank you for your role and assistance with yes eddu yon the issues th at we d scussed�In ansion, please find enclosed our follow up questions bas p effort to seek final resolution on these issues, please provide us a collaborated written response to the questions. Please forward your response to my attention. I sib /� 7 WoodLvn From: CarnellSteve Sent: Monday, May 30, 2011 3:23 PM To: Crystal K. Kinzel; Wood Lyn; ValentineLinda Cc: Connie C. Murray; Bonnie L. Baer; Edith C. Manuel; Kelly Jones; Jane M. McDonald; Marc Tougas; Pricel-en; TibbettsRhonda Subject: RE: e- payables contract notes Crystal, Thank you for forwarding your notes. We will follow up with Bruce regarding revenue sharing information. With regard to updating master vendor data, I spoke with Rhonda on this and we have been working for this for several weeks. We anticipate having this done in time for implementation. More details to come. With regard to the LOI, the vendors completed publicly within parameters set forth under the purchasing policy. If memory serves, price was not a competitive consideration as we are not paying the bank directly for their services. And yes, we would agree that the Clerk and BCC need to approve the agreement before it is signed. Steve From: Crystal K. Kinzel [ mailto: Crystal. Kinzelecollierclerk.comj Sent: Friday, May 27, 2011 11:26 AM To: CarnellSteve; WoodLyn; ValentineLinda Cc: Connie C. Murray; Bonnie L. Baer; Edith C. Manuel; Kelly Jones; Jane M. McDonald; Marc Tougas; PriceLen Subject: e- payables contract notes Steve, attached are my comments from the meeting notes(any difficulty reading or translating let me know). Additionally: There was agreement to get on -line overview of reports available so that we can validate the ability to reconcile. Bruce(from Commerce) was to get Revenue sharing information and level of detail available for the reconciliation of the rebate. We were also seeking a list of potential vendors from Commerce to give us the information for purchasing to begin Master file cleanup based upon most likely vendors. And as follow up but not specifically discussed, based upon the information we did discuss regarding letter of credit, rebate rates etc is the LOI sufficient to have determined the vendor selection? It did not seemingly include rate or structure for comparison to proposers? And I think we now all agreed that this needs to be approved by the Clerk and the BCC PRIOR to implementation. Crystal K. Kinzel Director of Finance and Accounting Clerk of the Circuit Court Collier County Government Center 3301 E. Tamiami Trail Bldg F 4th Floor Naples, FL 34112 (239)252 -6299 Crystal. KinzelCcDCollierclerk.com ,S�e�✓ G �I,�l�Fi� 1 7 s;T 10 -5562 — E- Payable s April 13, 2011 Crystal Kinzle, Colleen Greene Crystal did not have time to read the agreement prior to the meeting Crystal still has issues with reference to Pcard in the agreement Crystal will have to be specific as to what references she has objections. As I look at the agreement, the only references I see when I search on the word "card" relate to VISA and MasterCard descriptions and one reference to the name of Commerce Bank's support department. No matter how you slice it, this is a credit card product. Commerce Bank is properly referencing the name of the product, and we can't expect them to change the name of their department because Crystal takes offense. • Instead of letting a cardholder purchase without prior approval, we will require a requisition and purchase order. • Instead of giving a card to an individual, as we submit payments to Commerce Bank, a card account will be opened in the amount of the payment, and then closed as the payment is made. The account will exist for the time it is needed, but no plastic card will be issued. Time frames — when are we required to make deposit, when will they take funds The contract is clear as was the vendor presentations that Crystal and /or Connie have attended. Addendum A, Payment Schedule, indicates that payment to Commerce Bank will be made weekly, after payments have been processed. We are not depositing any funds with Commerce Bank. They will take an automatic payment of those transactions that have been paid within the previous week. This is just like any other credit card statement, except that instead of paying a monthly statement, we will pay weekly. At Crystal's request, Commerce Bank called their team members in from Christmas vacation and either flew them here for a meeting on Dec. 29th or had them available by phone where Crystal asked all of these questions in detail, and she stated the questions were answered to her satisfaction. Who will validate "authorized vendors "? Crystal will have to be more specific as to what she means here. As presented in the many demonstrations, the process is that vendors are enrolled into the program based on our instruction. A vendor must be authorized in SAP for the payment type, and in one meeting, I volunteered to take that responsibility. Crystal objected strenuously, and I then said I would take her lead. If she wanted me to do it, I was prepared to. If she wanted her people to, she could do that as well. Unfortunately, she brings us back to square one each time, so we never have been able to agree on a process. What happens if vendor does not retrieve funds due? This has been asked of the bank by both Connie and Crystal. Commerce Bank is assigning a relationship manager to our account who will run a weekly report and contact vendors who do not take their funds (for pull -pay arrangements). As representatives clearly indicated to Crystal most recently on 12/29, if a vendor never took their payment, the situation would be no different than a check not cashed from an accounting standpoint. Crystal then discussed the accounting entries in detail with the Bank representative and seemed satisfied. Why is a credit line needed? I don't understand the question. I don't know of any credit card arrangement that doesn't involve a maximum credit line allowed. We have a credit line for SunTrust. We only utilize the amount we need on any given day. This is the EXACT same thing, using the EXACT same payment vehicle /processor, VISA. Form A does not agree with Addendum A Please be specific. What does she believe does not agree? Billing and payment concerns are not clear in agreement I disagree. What exactly does she think is missing? This was addressed in meetings with the bank. They have given her the ability to tell them which day she would like to have the payment made. If she is saying she wants them to pick a day and put it in the contract, we can do that as well, but then she can't complain if they pick a day that she has workload issues. Addendum A clearly says payment is made weekly via auto - payment with a 3 -day grace period. What else does she want it to say? Commerce cannot do a test? This is a red herring. MIS is already set up to make the simple file transfer. No. Commerce Bank cannot do a test. Banks generally cannot test. They are not IT companies, they are financial institutions. SunTrust Bank did not have a test environment for our pcard accounts. We tested our systems by taking sample data and processing in our test environments. A/P has consistently put forth Fifth Third Bank for consideration for both pcards and e- payables, yet they have even less of a support structure. Why should Crystal expect more of Commerce Bank? Crystal wasn't aware there was revenue sharing involved I find this the most baffling comment of all. • Crystal present on at least 2 occasions with Bank personnel discussing this product where revenue share was discussed. • Connie Murray and Jane McDonald of the Clerk's office were on the selection committee. • Jack Curran provided copies of all proposals under consideration to Crystal directly. Revenue share is discussed in all of them. • During reviews of the intended L01 process, Crystal complained that the questions that Purchasing intended to ask on the L01 did not demand that a bank clearly state a proposed revenue share percentage, as she believed that was the major factor in selecting a competitive bidder. We had much discussion around the fact that a bank that gave a slightly higher revenue share but no support, would ultimately cost us more. • At a meeting on March 9`h in the Clerk's offices, Crystal stated that I never told them exactly how much we would make in order that she could determine if it were worth the extra work involved for her staff. I told her that we had provided estimates, but that no exact number could be given. • She debated other aspects of the revenue share process at the same meeting which she was advised had been negotiated away. • In Crystal's presence at that meeting, James Taylor asked if the Clerk's office could share in the revenue, and 1 suggested that they approach Len and Steve if that was their desire. • In an above comment, Crystal states Addendum A and Form A do not agree. Addendum A speaks to the revenue share, how it is paid, and the various earning levels. There is absolutely NO WAY that Crystal did not know this product involved revenue share. I believe we may have tapes of a meeting, and I know we have tapes of the selection committee that she can review if she needs a refresher. What does "billing with 3 day grace periods "? Commerce Bank has asked Crystal to define a day that they can make an auto - withdrawal of funds they have previously expended on our behalf. At the meeting with the Bank on Dec. 29`h, Crystal gave no indication that any of these arrangements would be a problem, and in fact stated they have other similar arrangements. 3 -day grace is what it says. If your withdrawal is due on 1/1 and for some reason it cannot be made, you have till 1/3 to accomplish the withdrawal and not be in violation of the agreement. Should they need to, Commerce Bank is willing to return again to answer any concerns. Why would a vendor sign up for epayable if they can receive wire transfers? This is not only a common practice in business today, but a growing practice. We pay our bank to issue wire transfers. We get paid to pay via e- payables. No vendor is forced to participate. Some do because it is already set up in their system and one more is not an issue; some do because they get more detail from their bank on e- payables than wire transfers. The program is of benefit to Collier County, and vendors can choose to participate or not. We will get copy of Bay County agreement. We will call Bay County Clerk to discuss. Also obtain any policy and /or procedures. Form A covers implementation —can it cover timing? Form A was created to satisfy Crystal. It is not a part of any other Commerce Bank contract, and is only in response to Crystal's comments were that the contract did not cover all that was discussed in the meetings. Contracts rarely do. I do not know what is meant by timing. If she has a specific desire, please state what it is, and we can ask Commerce Bank's attorneys. However, at some point there has to be a limit to what can and should be placed in the contract. Is there an agreement with enrolled vendors? This is a purchasing card payment arrangement and not a contractual arrangement. When you authorize Comcast to pay your home TV bill automatically against your credit card or bank account, there is simply a form that is filled out; no agreement is required. Who would issue 1099's? Collier? I am surprised at this question as Crystal should know this better than Purchasing. No 1099's are required for payments made with purchasing card products. This product saves the Clerk time in producing 1099's, and also exempts the County from any possible IRS fines or penalties for anything not properly reported. Note: The same is true for the impending 3% withholding on purchases over $10,000. While 3% withholding would be required within 6 months of the final IRS decision for purchases made by check, wire or ACH, we would have an additional year to implement any such process with pcards, and because of the technology involved, it would not be unthinkable that purchasing card payments would be totally exempted. Define how revenue share is remitted back to the County— revenue share must go back to the enterprise funds. What kind of report will we receive? The Clerk's office was provided with several DVD's that explain the Commerce Bank product. Section 7 deals with reports, and advises that there is an online system that allows the user to extract whatever data they choose. In meetings that included Crystal, Commerce Bank's relationship manager went over the support and training available to obtain reconciliation information. Crystal never asked during these meetings to receive prototype reports. Is she asking for that now? Suggestions for questions to be asked of Crystal: Revenue estimates have been placed at $350,000 to $400,000 /yr. What legal justification does the Clerk's office have to preclude the taxpayers from the benefit of this revenue? Process savings all accrue to the Clerk's office and include: • Postage savings • Check processing savings • Savings on wire transfer or ACH fees • Exemption from IRS 1099 requirements, and associated fines and penalties • Exemption from IRS 1099 requirements require less data collection (TIN'S) from vendors • Exemption from proposed 3% IRS withholding requirements for at least 18 months from the IRS final decision and probably longer Commerce Bank's customer survey indicated the average time required for reconciliation of these accounts is 15 minutes per week. Considering revenue and savings, is the Clerk's office willing to formally document objections to this process? V n m A 3 V r m m X O z m a 00 r m r m -mi _ m v a z _ m Im O v 0 3 V X O _ m c ao {. 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