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HomeMy WebLinkAbout2003-129 . . THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY-LAW 2003- 129 Being a By-law to authorize a contract between the Corporation of the Municipality of Clarington and U.S, Bank National Association, to enter into agreement for the Purchasing Card Program. THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON HEREBY ENACTS AS FOLLOWS: 1, THAT the Mayor and Clerk are hereby authorized to execute, on behalf of the Corporation of the Municipality of Clarington and seal with the Corporation Seal, a contract between, U,S. Bank National Association, and said Corporation; and 2, THAT the contract attached hereto as Schedule "A" form part of this By-law, 15th September By-law read a first and second time this day of , 2003. By-law read a third time and finally passed this 15t~ay of SePt,e~503, -, . , , ~ .:::.. - l.IhiCif')aJ C~f1< - - " U.S. BANK NATIONAL ASSOCIATION VISA'" CARD AGREEMENT CORPORATE OR PURCHASING In consideration of the mutual promises stated in this Card Agreement, the Customer agrees with U,S, Bank National Association ("USB") as follows: \ 1, DEFINITIONS, In this Card Agreement, unless the context otherwise requires, the following terms will have the meaning set out for them herein, "Account" means the VISA" account opened in the Customer's name by USB to which Debt is charged. "Account Statement" means the statement of the Account prepared by USB for the Customer about every three (3) or four (4) weeks. "Affiliate" means any Canadian corporation that directly or indirectly controls, or Is controlled by, or is under common control with, Customer, "Authorized Person" means any Individual the Customer has designated in writing as being authorized to ask USB to open an Account and arrange issuance of a Card to a Cardholder under this Card Agreement and to perform administrative duties for the Customer under this Card Agreement "Balance" means the total amount of the Debt shown on each Account Statement "Card" means any VISA@ or CHARGEX' charge card issued pursuant to this Card Agreement to a Cardholder on the Account in the Cardholder's name at the request of the Customer, and all renewals of and replacements for that charge card, "Card Agreement" means this VISA@ Card Agreement, the Schedule and all annexes attached to this VISA@ Card Agreement "Cardholder" means an individual to whom a Card has been issued on the Account at the request of the Authorized Person under this Card Agreement "Cash Advance" means an advance of cash that, if permitted as a feature by the Customer according to the Schedule. is charged to the Account In connection with a Card, "Cash Advance Fee" means the fee charged by USB for a Cash Advance, as set out in the Schedule. "Control Account" means, if the Customer has selected this feature, an account opened In the name of the Customer in which certain Debt incurred by Cardholders (as specified by the Customer) is recorded. "Credit Limit" means the maximum aggregate amount of Debt that can remain outstanding and unpaid at any time in the Account, as set out In the Schedule. "Customer" means the person or entity which has signed this Card Agreement. "Cycle" means the period of time between one (1) Statement Date and the next (approximately thirty (30) calendar days), "Debt" means all amounts charged to the Account with or in connection with Cards, including Purchases, Cash Advances and Service Fees. "Due Date" means the due date for the payment of Debt appearing on an Account Statement for the first time. such date to be the number of days (as determined according to the Schedule) from the Statement Date Indicated on the Account Statement within which that Debt may be paid in full without a Late Payment Fee being incurred, "Effective Date" means the date that this Card Agreement is signed by USB, "Foreign Currency Fee" means the fee USB charges on the amount of any Debt or other transaction posted to the Account that is not incurred in Canadian dollars, as set out in the Schedule. "Late Payment Fee" means the fee USB charges on a Past Due Balance, as set out in the Schedule, "Liability Waiver Program" means the VISA" Liability Waiver program in force from time to time, a current copy of which Is annexed to this Card Agreement. "Monthly Limit" means the maximum amount of Debt that can remain outstanding and unpaid during any Cycle in the Account. "Participant" means any Affiliate of Customer that participates under this Card Agreement. The Participant must be requested by Customer to USB in writing while this Card Agreement is in effect and the Affiliate must be approved by USB to participate under this Card Agreement. USB reserves the right to conduct a credit check on any Participant. "Past Due Balance" means the amount of any Debt appearing on an Account Statement for the first time that is not paid in full by its Due Date. "Personal Identification Number" means the personal identification number ("PIN") assigned to a Cardholder in the prescribed manner, "Purchase" means a purchase of goods or services (or both) that is charged to the Account with or in connection with a Card, "Schedule" means the schedule to this Card Agreement which sets out the Credit Limit, Service Fees and other operating conditions for the Account and this Card Agreement. "Service Fees" mean the Cash Advance Fee, Foreign Currency Fee, Late Payment Fee and other service fees that apply to the Account and this Card Agreement, as set out in the Schedule, "Statement Date" means the date indicated as such on an Account Statement. 2, GENERAL TERMS OF AGREEMENT, This Card Agreement applies to the Account. each Control Account and each Card, This Card Agreement replaces all prior corporate or purchasing VISA" card agreements between USB and the Customer for the Account, each Control Account and each Card, The section headings in this Card Agreement appear only for ease of reference purposes. They do not form part of this Card Agreement. 3, ACCOUNT OPENING/CARD ISSUANCE AND RENEWAL. USB will open an Account for the Customer, A Card will be Issued to a Cardholder at the request of an Authorized Person made on a fully-completed request fOI1ll that USB has prescribed for this purpose. Each fOI1ll must indicate whether a Cardholder may obtain Cash Advances, Renewal and replacement Cards (excluding an emergency replacement Card) will also be issued to each Cardholder before the expiration date indicated on the Card last issued to them, Renewal and replacement Cards will continue to be issued in this way until the Customer or the Cardholder notifies USB to stop, An emergency replacement Card will be issued to a Cardholder when required according to USB's customary operating procedures, At the request of an Authorized Person, USB will also open and maintain one (1) (or more than one (1)) Control Account for the Customer. Each Control Account will be maintained by USB according to its customary operating procedures and the Customer agrees to abide by those procedures, 4. ACCOUNT AND CARD USE, A Cardholder may use the Account and Card to obtain advances of money through Purchase transactions, Cash Advance transactions (if permitted as a feature by the Customer according to the Schedule), and other transactions as USB may permit from time to time, The use of the Account and each Card is governed by the terms of this Card Agreement. A Card may only be used by the Cardholder in whose name it has been issued, A Cardholder must not use their Card after the expiration date shown on it or after the termination of this Card Agreement. If a Control Account has been opened, the Customer will use it for Debt record tracking purposes and such other purposes as USB may permit from time to time, 5, ACCOUNT AND CARD OWNERSHIP, USB is the owner of each Card, Account and Control Account. The Customer does not have the right to assign or transfer this Card Agreement, any Account, Control Account, or Card to anyone else. 6. LOST OR STOLEN CARD, The Customer or a Cardholder must notify USB in writing immediately if the Cardholder's Card is lost or stolen or if the Customer or the Cardholder suspects it is lost or stolen, The Customer or the Cardholder may do this in any of the ways USB has indicated for this purpose from time to time, If a Cardholder's Card is lost or stolen, the Customer will be liable to USB for: (a) all Debt on the Account, up to a maximum of fifty Canadian Dollars ($50.00), resulting from the loss or theft of the Cardholder's Card that is incurred before the time the Customer or the Cardholder notifies USB about that loss or theft through anyone (1) or more transactions on the Account in which only the Cardholder's Card or the Account number has been used to complete those transactions, and (b) all Debt resulting from the loss or theft of the Cardholder's Card that is incurred before the time the Customer or the Cardholder notifies USB about that loss or theft through anyone (1) or more transactions on the Account in which the Cardholder's Card and a Personal Identification Number have been used together to complete those transactions. The Customer will not be liable to USB for any Debt resulting from the loss or theft of the Cardholder's Card that is incurred after the time the Customer or the Cardholder notifies USB about that loss or theft. 7, CARD CANCELLATION/REVOCATION OR SUSPENSION OF USE, The Customer may cancel a Cardholder's Card for any reason (including, without limitation, the death of the Cardholder) by providing written notice of cancellation to USB. If the Balance outstanding in the Account exceeds the Credit Limit at any time, USB may suspend each Cardholder's right to use the Account and their Cards and all services USB provides the Customer and Cardholders under this Card Agreement until such time as that excess is paid in full to USB by the Customer. USB may revoke or suspend a Cardholder's right to use the Account and their Card at any time without notice. The Cardholder must also surrender their Card to the Customer or to USB at their request. 8, LIMITS, USB will set a Credit Limit and USB may change the Credit Limit from time to time by providing written notice of the change to the Customer, USB will set a Monthly Limit for the Account and USB may change the Monthly Limit for the Account, all according to the guidelines the Customer has established with USB for this purpose, USB will inform Cardholders of the Monthly Limit for the Account. The Customer will ensure that each Cardholder observes that Monthly Limit. 9. LIABILITY FOR DEBT, Subject to Sections 6 and 7, and except as may otherwise be provided under the Liability Waiver Program, the Customer will be liable to USB for all Debt charged to the Account, no matter how it is incurred or who has incurred it. USB may apply any money the Customer has on deposit with USB or any of its affiliates against any Debt the Customer has not paid to USB as required under this Card Agreement without notice to the Customer. 10, PAYMENT OF DEBT. (a) Subject to Section 19, the Customer will pay each Balance to USB in full by the Due Date for the Debt to which that Balance relates, (b) The Customer must pay the amount of any Debt that exceeds Monthly Limit at once to keep the Account up-to- date, The Customer will pay this excess even though USB may not yet have sent an Account Statement to the Customer on which that excess appears. (c) The Customer will keep the Account up-to-date at all times even when USB is delayed in or prevented from sending, for any reason, anyone (1) or more Account Statements to the Customer. (d) If any payment made by the Customer is not honoured, or if USB must retum it to the Customer because it cannot be processed, late Payment Fees may be assessed under Section 12 and Card privileges may be revoked or suspended by USB under Section 7, 11, FOREIGN CURRENCY DEBTfTRANSACTIONS. USB will charge a Foreign Currency Fee on the amount of any Debt or other transaction posted to the Account that is not incurred in Canadian dollars, USB will convert this Debt or other transaction and Foreign Currency Fee to Canadian dollars at USB's conversion cost in effect on the day USB posts the converted Debt or other transaction and Foreign Currency Fee to the Account. 12. LATE PAYMENT FEES, Subject to Section 19. the Customer will pay a late Payment Fee to USB on each Past Due Balance until the time that Debt Is repaid in full, 13, APPLICATION OF PAYMENTS, USB will apply each payment of the Debt in the following order: late Payment Fees; Cash Advance Fees; other Service Fees; Past Due Balances; other unpaid Debt. All payments must be made in money which is legal tender at the time of payment. 14. SERVICE FEES, The Customer will pay the Service Fees that apply to the Account and this Card Agreement, as set out in the Schedule, USB will calculate these Service Fees according to the Schedule and will post them to the Account at the time they are Incurred, 15, AUTOMATED BANKING MACHINES, If permitted as a feature by the Customer according to the Schedule, a Cardholder may use their Card together with their Personai Identification Number to make transactions on the Account at those banking machines and terminals USB designates from time to time, subject to the Cardholder's agreement with USB governing use of their Personal Identification Number. 16, DEBT INCURRED WITHOUT A CARD, If a Cardholder incurs Debt without having presented their Card to a merchant (such as for mail order or telephone Purchase), the legal effect will be the same as if the Cardholder had used their Card and signed a Purchase or Cash Advance draft. 17, CHANGES TO SERVICE FEES, . USB may change the Service Fees set out in the Schedule periodically, The Customer will be given at least thirty (30) days prior written notice of each change (effective for any Card of other Account issued or renewed after the effective date of such change), directed to the Customer's address last appearing on USB;s records, If the Customer does not agree with any change, the Customer may terminate this Card Agreement, but must give notice of termination, as set forth herein, within such thirty (30) days notice perlod._lf any Card is used or any Debt remains unpaid after the effective date of a change. it will mean that the Customer has agreed to the change, 18. CHANGES TO AGREEMENT, USB may change this Card Agreement periodically, The Customer will be given at least sixty (60) days prior written notice of each change, directed to the Customer's address last appearing on USB's records. If any Card is used or any Debt remains unpaid after the effective date of a change, it will mean that the Customer has agreed to the change, 19, TERM AND TERMINATION, (a) Unless otherwise terminated in accordance with this Section, this Card Agreement will be in force for an initial term of two (2) years, commencing on the Effective Date of this Card Agreement, and will automatically renew for successive additional terms of one (1) year each thereafter upon the same terms and conditions as are set forth herein, (b) The Customer or USB may terminate this Card Agreement on the last day of the initial term or the last day of any additional term by giving not less than sixty (60) days prior written notice of termination to the other party. USB must direct its written notice to the Customer's address last appearing on USB's records. The Customer must direct its written notice to USB's Card Centre identified on Account Statements. (c) The occurrence of anyone (1) of the following events has the effect of putting the Customer in default and USB may terminate this Card Agreement at once without giving the Customer any notice, if; (i) the Customer becomes insolvent or bankrupt, (ii) someone files a petition in bankruptcy against the Customer, (i1i) the Customer makes an unauthorized assignment for the benefit of its creditors, (iv) the Customer or someone eise institutes any proceedings for the dissolution, liquidation or winding up of the Customer's affairs, , (v) the Customer or someone else institutes any other type of insoivency proceeding involving the Customer's assets under the Bankruptcy and Insolvency Act or otherwise, (vi) the Customer ceases or gives notice of its intention to cease to carry on business or makes or agrees to make a bulk sale of its assets without complying with applicable laws or the Customer commits an act of bankruptcy. (vii) the Customer fails to pay any Debt or to perform any other obligation to USB as required under this Card Agreement, (viii) the Customer makes any statement or representation to USB that is untrue in any material respect when made, or (ix) there is, in USB's opinion, a material adverse change in the financial condition of the Customer, (d) Upon termination of this Card Agreement, the Customer must pay all Debt to USB at once and ensure that each Cardholder destroys their Card, If the Customer fails to comply with its obligations to USB under this Card Agreement, the Customer will be liable to USB for: (i) all court costs and reasonable legal fees and expenses (on a solicitor-client basis) USB incurs through any legal process to recover any Debt, and (ii) ail costs and expense USB incurs in reclaiming any Card. 20. PROBLEMS WITH A PURCHASE. Subject to Section 21: (a) USB will not be responsible for any problem the Cardholder has with any Purchase, and (b) if the Cardholder has a problem or dispute with a merchant regarding a Purchase, the Customer must still pay all Debt as required by this Card Agreement and sellle the problem or dispute directly with the merchant. USB will not be responsible if a Card is not honoured by a merchant at any time and, subject to Section 21, for any other problem or dispute the Cardholder may have with a merchant. As well, USB reserves the right to deny authorization of any Purchase at any time, 21, ACCOUNT STATEMENTS, VERIFICATION AND DISPUTES, USB will send Account Statements to the Customer, directed to the Customer's address last provided to USB by the Authorized Person. The Customer will promptly examine each Account Statement and each entry and balance recorded in them, The Customer will notify USB in writing of any errors, omissions, or objections to an Account Statement, or an entry or balance recorded in it, within sixty (60) days from the Statement Date recorded on that Account Statement. If the Customer does not notify USB as required, USB is entitled to treat the above Account Statements, entries and balances as complete, correct and binding on the Customer and USB will be released from all claims by the Customer in respect of those Account Statements, entries and balances. USB may use a microfilm, electronic or other reproduction of any Purchase or Cash Advance draft or other document evidencing Debt to establish the Customer's liability for that Debt. Upon request, USB will provide a microfilm, electronic or other reproduction within a reasonable time frame of any Purchase or Cash Advance draft or other document evidencing the Debt. If the Item is a legitimate charge to the Account and the dispute is between the Customer or the Cardholder and the merchant, the Customer must still pay the Debt owing to USB and sellle the problem or dispute directly with the merchant. If the item is not a legitimate charge, USB will return the item to the merchant and credit the Account. USB will waive all late Payment Fees related to the returned item, Any legitimate charges repaid within sixty (60) days will not be subject to any late Payment Fees, 22, AUTHORIZED PERSON, Upon signing this Card Agreement, the Customer will designate one (1) or more individuals as an Authorized Person to assist the Customer in the administration of this Card Agreement. The Authorized Person will be responsible for performing, on the Customer's behalf, such administrative duties as USB may request and the Customer has agreed to from time to time, 23, EXCHANGE OF INFORMATION BETWEEN USB AND CUSTOMER. Information about a Cardholder's use of the Account and Card, and pertinent Information about any reimbursement of Debt received by the Cardholder from the Customer, Cardholder employment status and location, and any other related Cardholder tracking information may be exchanged between USB and the Customer, 24, COLLECTION AND USE OF INFORMATION, From time to time, (a) USB may collect credit and other financially-related information (including information related to the Customer's transactions) about the Customer ("Information") from the Customer, from service arrangements the Customer has made with or through USB, from credit bureaux and other financial institutions, and from references the Customer has provided to USB; (b) USB may use Information as follows: (I) give it to credit bureaux, to other financial institutions, to persons with whom the Customer has or may have financial or other business dealings and, with the Customer's consent, to other parties, (ii) to determine the Customer's financial situation, (iii) to provide the Customer with the services the Customer requests from USB, and (iv) give it to anyone who works with or for USB, but only as needed for providing the services the Customer requests from USB, USB may use the Customer's social insurance number, if applicable, for income tax reporting purposes if the Customer has given that number to USB; and The Customer shall deliver to USB as soon as available, and in any event not later than one hundred and eighty (180) days after the end of each fiscal year of the Customer, Customer's audited financiai statements prepared by independent certified public accountants selected by Customer. The Customer authorizes USB to obtain from time to time from any other source including an affiliate of U,S, Bancorp any credit or financial information on Customer held by such source. Customer further agrees to provide to USB from time to time such other information regarding the financial condition of Customer as USB may reasonably request. If the Customer is no longer a USB client or this Card Agreement terminates, USB may keep Information in its records so long as it is needed for the purposes described in sub-Section 24(b), above, The Customer consents to, and accepts this as prior written notice of, USB obtaining a credit report or other Information about the Customer from time to time, 25, LIABILITY WAIVER PROGRAM, The Liability Waiver Program applies to this Card Agreement and is made available at no cost to the Customer, The Customer may request USB to waive, in accordance with the Liability Waiver Program, the Customer's liability under Section 9 for certain unauthorized charges posted to the Account. The Customer agrees to abide by the provisions of the Liability Waiver Program as in effect from time to time, 26, COUNTERPARTS, This Card Agreement may be executed in any number of counterparts, each of which when executed and delivered will be deemed to be an original, and those counterparts together wiil constitute one and the same agreement. 27, COMPLETE AGREEMENT, ETC.. This Card Agreement constitutes the complete agreement between USB and the Customer with respect to the subject matter hereof, No failure on the part of USB to exercise, and no delay by USB in exercising, any right under this Card Agreement will operate as a waiver thereof; nor will any single or partial exercise by USB of any right under this Card Agreement preclude any other or further exercise thereof, or the exercise of any other right, by USB under this Card Agreement 28. BINDING EFFECT AND ASSIGNMENT TO AFFILIATE OF USB, This Card Agreement shail be binding upon and inure to the benefit of the parties and their respective successors and assigns; provided, however, that this Card Agreement may not be assigned by Customer without the prior written approval of USB or its designate. 29, WARRANTIES, Customer warrants that: (a) This Card Agreement constitutes a valid, binding and enforceable agreement of Customer; (b) The execution of this Card Agreement and the performance of its obiigations under this Card Agreement are within Customer's powers; has been authorized by all necessary action; and does not constitute a breach of any agreement of Customer with any party; (c) The execution of this Card Agreement and the performance of its obligations under this Card Agreement will not cause a breach by it of any duty arising in law or equity; and (d) Customer possesses the financial capacity to perform all of its obligations under this Card Agreement. 30, AUTOMATION AND INFORMATION MANAGEMENT, USB agrees to provide information concerning ali charge activity for purchases, fees and other charges on a monthly basis, USB agrees that it will maintain all data relative to Customer's accounts under this Card Agreement as confidential information and will exercise the same standard of care and security to protect such information as USB uses to protect its own confidential information. USB agrees to use such data exclusively for the providing of services to Customer hereunder and not to release such information to any other party; provided, however, that USB may coliect, maintain and, at its option, disseminate information and data concerning charge activity which does not contain any direct or indirect identification of Customer. 31. REGULATORY ACKNOWLEDGMENTS. Customer hereby acknowledges that: (a) deposits, if any, with USB are not insured by the Canada Deposit Insurance Corporation; (b) USB is authorized to carry on business in Canada pursuant to the Bank Act( Canada); (c) its primary supervisor in the United States of America is responsible for the supervision of the totai business and affairs of USB; and (d) its business in Canada is supervised by the Office of the Superintendent of Financial Institutions, located at 255 Albert Street, Ottawa, Ontario K1A OH2, whom Customer may contact for further information in this connection, ..., .. In witness whereof, the parties hereto have, by their duly authorized representatives. executed this Card Agreement. i Dated this 2211d day of S"pL"",;',,.. . 200 b: Dated this 1'\1-' day of ~ 6A .200 7by: I _1 The Corporation of the Municipality of (Customer) ~ Clarington ~ fi'71lftJlhr- Si nature of A Jhorized Incjlvidual) . John Mutton, Mayor ,_ (PriI1~me ofAuthoHZeQJ.n.<:!ividual). Si nature f Authorized Individual) Robert T, Abele Senior Vice President Si n atti l Barrie, Clerk .JPrinted Name of Authorized Individual I (Printed Title of Authorized Individual) * Registered trade-r:nark of Visa!... International Service Association. Used under license. U,S. BANK NATIONAL ASSOCIATION VISA@* CARD AGREEMENT PURCHASING CARD SCHEDULE An nual Fee per Pu rchasi ng Card* ---------------------------------------------------------------------------- $1 0,00 Annual Fee per Ghost Account*---------------------------------------------------------------------------------- $1 0.00 Cheque Fee (per transaction; minimum $5,00) -------------------------------------------------------------- 2.5% Foreign Currency Fee (per transaction) --------------------------------------------------------------------- 1,8% Late Payment Fee (at 14 days past due) ------------------------------------------------------------------ 2,5% This Late Payment Fee will be assessed on the entire past due, unpaid Balance, Late Payment Fee (at 80 days past due and thereafter)------------------------------------------------------ 2,5% This Late Payment Fee will be assessed on the entire past due, unpaid Balance until the Account is paid in full. If an Account is not paid in full after sixty (60) days, Cards will be suspended. Card Issuance Fee --------------------------------------------------------------------------------------------$0,00 Card Renewal Fee _________________,____________------------------------------------------------------------$0,00 Card Replacement Fee-------------------------------------------------------------------------------------------$0,00 Transaction Fee (per transaction) -----------------------------------------------------------------------------$0.00 Logo Digitization Fee (plus tax; one time fee) ------------------,--------------------------------------- $750.00 . Fees are per account, per year and are subject to the tenns and conditions stipulated in the U,S, Bank National Association VISA@' Card Agreement for a three (3) year tenn Pricing is based upon issuing approximately seventy-five (75) Cards with an approximate annual spend of five hundred thousand Canadian Dollars ($500,000,00). If these estimates are substantially inaccurate, USB reserves the right to renegotiate pricing in subsequent years of the Card Agreement. U.S, BANK NATIONAL ASSOCIATION VISA"" CARD AGREEMENT PURCHASING CARD SCHEDULE (continued) AccessDi rect Software Fees Administrator Desktop 1,0 With AccessDirect Web Fee (per month)------------------------------------ $100.00 AccessDirect Net Cardholder 1,0 Fee (interfaces with Administrator Desktop 1.0 only; per month)-------$O.OO Customer site iicense includes; Unlimited software usage by Customer; User ID and password access to Internet site; Dally Transaction Data Update; Unlimited Web Based Training; User Guide; and Electronic version 01 the User Guide is provided lor Customer production and distribution, Installation and Training Fees All installation and training is provided Iree 01 charge and is conducted via the Internet------------------$O,OO Data Delivery Statement Billing File (SBF) delivery lee------------------------------------------------ No charge lor first site, Daily data downloads (per month) c___________________________________________________________-------- $150.00 Statement Billing File Customization To be negotiated as required. AccessDirect Report Customization To be negotiated as required,