CONTRACT RENEWAL Date of Renewal: December 15, 2008 Contract Number: 30831 Procurement Officer: Chris Howe, Director Telephone: 785-296-2374 E-Mail Address: firstname.lastname@example.org Web Address: http://da.state.ks.us/purch/ Item: Banking Services – FHSU BankCard Agency: Fort Hays State University Location(s): Hays, KS 67601 Period of Contract: April 1, 2004 through April 30, 2011 Contractor: Commerce Bank N.A. 811 Main Kansas City, MO 64105 E-Mail: email@example.com Toll Free: 800-892-7100 ext. 28178 Telephone: 816-760-8178 Fax: 816-234-1773 FEIN: 48-0216490 Contact Person: Don Becker Political Subdivisions: This pricing is not available to Political Subdivisions of the State of Kansas. Procurement Cards: Agencies may not use State of Kansas Business Procurement Card for purchases from this contract. Administrative Fee: No Administrative Fee will be assessed against purchases from this contract. This Contract shall cover the procurement of Student Banking Services as a function of the FHSU ID Card, hereafter referred to as “Tiger Card”, for Fort Hays State University, Hays, Kansas, during the contract period referenced above. Additional Services / Considerations for 2009-2011 Renewal Period Commerce Bank and Fort Hays State University shall work together to explore adding an RFID function to the existing Tiger Card. Commerce Bank shall provide $25,000 to assist FHSU with this technological enhancement, other card stock expenses, and other FHSU costs related to the program. Commerce Bank and FHSU shall work together in advocating FHSU as a potential pilot agency for the VISA Mobile Payments program. Contract Number 30831 Page 2 Term: The term of the agreement shall be from April 1, 2004 through April 30, 2011. Contract Reference Number: The above-number has been assigned to this Contract and MUST be shown on all correspondence or other documents associated with this Contract and MUST be referred to in all verbal communications. Contract Documents: In the event of a conflict in terms of language among the documents, the following order of precedence shall govern: 1. Form DA-146a; 2. written modifications to the executed contract; 3. written contract signed by the parties; 4. the Original Request for Proposal #30831, including any and all addenda; and 5. contractor's written proposal submitted in response to the Original Request for Proposal #30831. Federal, State and Local Taxes-Governmental Entity: Prices include all applicable federal, state and local taxes. The Contractor shall pay all taxes lawfully imposed on it with respect to any product or service delivered in accordance with this Contract. The State of Kansas is exempt from state sales or use taxes and federal excise taxes for direct purchases. These taxes shall not be included in the Contractor's prices. Debarment of State Contractors. Any Contractor who defaults on delivery as defined in this Contract may, be barred (a) After reasonable notice to the person involved and reasonable opportunity for that person to be heard, the secretary of administration, after consultation with the contracting agency and the attorney general, shall have authority to debar a person for cause from consideration for award of contracts. The debarment shall not be for a period exceeding three years. The secretary, after consultation with the contracting agency and the attorney general, shall have authority to suspend a person from consideration for award of contracts if there is probable cause to believe that the person has engaged in any activity which might lead to debarment. The suspension shall not be for a period exceeding three months unless an indictment has been issued for an offense which would be a cause for debarment under subsection (b), in which case the suspension shall, at the request of the attorney general, remain in effect until after the trial of the suspended person. Insurance: The State shall not be required to purchase any insurance against loss or damage to any personal property nor shall the State establish a "self-insurance" fund to protect against any loss or damage. Subject to the provisions of the Kansas Tort Claims Act, the Contractor shall bear the risk of any loss or damage to any personal property. Termination for Cause: Either party may terminate this Contract for cause under any one of the following circumstances: 1. The Contractor fails to make delivery of goods or services as specified in this contract; or 2. Either party fails to perform any material provision of this Contract or so fails to make progress as to endanger performance of this contract in accordance with its terms. The party seeking to terminate the Contract shall give the other party a written notice of the conditions endangering performance, and the party receiving said notice shall have thirty (30) days (or such longer period as may be authorized in writing) after its receipt of said notice to remedy such failure. If the failure is not remedied by the defaulting party within the time period provided above, the non-defaulting party may terminate this contract by giving the defaulting party written notice. Receipt of notice shall be presumed to have occurred within three (3) business days of the date of the notice. If the breach is remedied by the defaulting party within the time period provided above, then this Contract shall continue as though no such notice had been given. Contract Number 30831 Page 3 Notices: All notices, demands, requests, approvals, reports, instructions, consents or other communications (collectively "notices") which may be required or desired to be given by either party to the other shall be IN WRITING and addressed as follows: For the State of Kansas: Mr. Chris Howe, CPPB Kansas Division of Purchases 900 SW Jackson St, Room 102N Topeka, KS 66612-1286 For the Contractor: Carl Bradbury, Debit Product Manager Commerce Bank 811 Main St Kansas City, MO 64199 Rights and Remedies: If this contract is terminated, the State, in addition to any other rights provided for in this contract, may require the Contractor to transfer title and deliver to the State in the manner and to the extent directed, any completed materials. The State shall be obligated only for those services and materials rendered and accepted prior to the date of termination. If it is determined, after notice of termination for cause, that Contractor's failure was due to causes beyond the control of the Contractor, the termination shall be a termination for convenience. In the event of termination, the Contractor shall receive payment pro rated for that portion of the contract period services were provided to and/or goods were accepted by State subject to any offset by State for actual damages including loss of federal matching funds. The rights and remedies of the State provided for in this contract shall not be exclusive and are in addition to any other rights and remedies provided by law. In no event shall either party be liable for special or consequential damages arising from the performance or nonperformance of services hereunder or failure to comply with any terms of the Contract. Force Majeure: The Contractor shall not be held liable if the failure to perform under this contract arises out of causes beyond the control of the Contractor. Causes may include, but are not limited to, acts of nature, fires, tornadoes, quarantine, strikes other than by Contractor's employees, and freight embargoes, etc. Waiver: Waiver of any breach of any provision in this contract shall not be a waiver of any prior or subsequent breach. Any waiver shall be in writing and any forbearance or indulgence in any other form or manner by State shall not constitute a waiver. Ownership: All data, forms, procedures, software, manuals, system descriptions and work flows developed or accumulated by the Contractor under this contract shall be owned by the using agency. The Contractor may not release any materials without the written approval of the using agency. The foregoing notwithstanding, neither party shall obtain any license, right to copy, right to purchase or use, or other rights in and to any of the other party’s trade secrets and confidential and / or proprietary property of any nature whatsoever used in connection with the FHSU Student Banking Services program beyond the use contemplated during the term of the Contract. Independent Contractor: Both parties, in the performance of this contract, shall be acting in their individual capacity and not as agents, employees, partners, joint ventures or associates of one another. The employees or agents of one party shall not be construed to be the employees or agents of the other party for any purpose whatsoever. Contract Number 30831 Page 4 The Contractor accepts full responsibility for payment of unemployment insurance, workers compensation and social security as well as all income tax deductions and any other taxes or payroll deductions required by law for its employees engaged in work authorized by this contract. Staff Qualifications: The Contractor shall warrant that all persons assigned by it to the performance of this contract shall be employees of the Contractor (or specified Subcontractor) and shall be fully qualified to perform the work required. Failure of the Contractor to provide qualified staffing at the level required by the proposal specifications may result in termination of this contract and/or damages. Conflict of Interest: The Contractor shall not knowingly employ, during the period of this contract or any extensions to it, any professional personnel who are also in the employ of the State and who are providing services involving this contract or services similar in nature to the scope of this contract to the State. Furthermore, the Contractor shall not knowingly employ, during the period of this contract or any extensions to it, any state employee who has participated in the making of this contract until at least two years after his/her termination of employment with the State. Confidentiality: The Contractor may have access to private or confidential data maintained by State to the extent necessary to carry out its responsibilities under this contract. Contractor must comply with all the requirements of the Kansas Open Records Act in providing services under this contract. Contractor shall accept full responsibility for providing adequate supervision and training to its agents and employees to ensure compliance with the Act. No private or confidential data collected, maintained or used in the course of performance of this contract shall be disseminated by either party except as authorized by statute, either during the period of the contract or thereafter. Contractor must agree to return any or all data furnished by the State promptly at the request of State in whatever form it is maintained by contractor. On the termination of expiration of this contract, contractor will not use any of such data or any material derived from the data for any purpose and, where so instructed by State, will destroy or render it unreadable. Commerce Bank shall be entitled to conclusively rely upon and use any and all information, data and instructions, including, but not limited to, University’s or State’s memoranda, data entry instructions or computer field instructions, at any time submitted to Commerce Bank by the University or the State and Commerce Bank shall have no responsibility or liability whatsoever for the accuracy or inaccuracy of such information, data, and instructions or for whether or not such information, data, instructions comply with applicable federal and state laws and regulations. Commerce Bank (and its affiliates) will not use any list of students, faculty or employees for purposes of selling its services or offering services for sale unless Commerce Bank has obtained such information from other public or commercial sources. The restrictions on marketing contained in this paragraph do not apply to marketing activities directed to students, faculty or employees who maintain a FHSU Card Account or otherwise are current customers of Commerce Bank or its affiliates. Reviews and Hearings: The Contractor agrees to advise the Director of Purchases of all complaints of recipients made known to the Contractor and refer all appeals or fair hearing requests to the Director of Purchases. The State has the discretion to require the Contractor to participate in any review, appeal, fair hearing or litigation involving issues related to this contract. Nondiscrimination and Workplace Safety: The Contractor agrees to abide by all federal, state and local laws, rules and regulations prohibiting discrimination in employment and controlling workplace safety. Any violations of applicable laws, rules and regulations may result in termination of this contract. Environmental Protection: The Contractor shall abide by all federal, state and local laws, rules and regulations regarding the protection of the environment. The Contractor shall report any violations to the applicable governmental agency. A violation of applicable laws, rule or regulations may result in termination of this contract. Contract Number 30831 Page 5 Hold Harmless: The Contractor shall indemnify the State against any and all claims for injury to or death of any persons; for loss or damage to any property; and for infringement of any copyright or patent occurring in connection with or in any way incidental to or arising out of the occupancy, use, service, operations or performance of work under this contract. The State shall not be precluded from receiving the benefits of any insurance the Contractor may carry which provides for indemnification for any loss or damage to property in the Contractor's custody and control, where such loss or destruction is to state property. The Contractor shall do nothing to prejudice the State's right to recover against third parties for any loss, destruction or damage to State property. Care of State Property: The Contractor shall be responsible for the proper care and custody of any state-owned personal tangible property and real property furnished for Contractor's use in connection with the performance of this contract, and Contractor will reimburse State for such property's loss or damage caused by Contractor, normal wear and tear excepted. Prohibition of Gratuities: Neither the Contractor nor any person, firm or corporation employed by the Contractor in the performance of this contract shall offer or give any gift, money or anything of value or any promise for future reward or compensation to any State employee at any time. Retention of Records: Unless the State specifies in writing a shorter period of time, the Contractor agrees to preserve and make available all of its books, documents, papers, records and other evidence involving transactions related to this contract for a period of five (5) years from the date of the expiration or termination of this contract. Matters involving litigation shall be kept for one (1) year following the termination of litigation, including all appeals, if the litigation exceeds five (5) years. The Contractor agrees that authorized federal and state representatives, including but not limited to, personnel of the using agency; independent auditors acting on behalf of state and/or federal agencies shall have access to and the right to examine records during the contract period and during the five (5) year post-contract period. Delivery of and access to the records shall be at no cost to the state. Federal, State and Local Taxes Contractor: The State makes no representation as to the exemption from liability of any tax imposed by any governmental entity on the Contractor. Antitrust: If the Contractor elects not to proceed, the Contractor assigns to the State all rights to and interests in any cause of action it has or may acquire under the anti-trust laws of the United States and the State of Kansas relating to the particular products or services purchased or acquired by the State pursuant to this contract. Modification: This contract shall be modified only by the written agreement of the parties with the approval of the PNC. No alteration or variation of the terms and conditions of the contract shall be valid unless made in writing and signed by the parties. Every amendment shall specify the date on which its provisions shall be effective. Assignment: The Contractor shall not assign, convey, encumber, or otherwise transfer its rights or duties under this contract without the prior written consent of the State; provided, however, that Contractor may assign this contract to any acquirer of all or substantially all of Contractor’s assets or to an entity that is controlled by, or under common control with Contractor, without the prior consent of the State. This contract may terminate in the event of its assignment, conveyance, encumbrance or other transfer by the Contractor without the prior written consent of the State. Third Party Beneficiaries: This contract shall not be construed as providing an enforceable right to any third party. Captions: The captions or headings in this contract are for reference only and do not define, describe, extend, or limit the scope or intent of this contract. Contract Number 30831 Page 6 Severability: If any provision of this contract is determined by a court of competent jurisdiction to be invalid or unenforceable to any extent, the remainder of this contract shall not be affected and each provision of this contract shall be enforced to the fullest extent permitted by law. Governing Law: This contract shall be governed by the laws of the State of Kansas and shall be deemed executed at Hays, Ellis County, Kansas. Jurisdiction: The parties shall bring any and all legal proceedings arising hereunder in the State of Kansas, District Court of Ellis County. The United States District Court for the State of Kansas sitting in Hays, Ellis County, Kansas, shall be the venue for any federal action or proceeding arising hereunder in which the State is a party. This paragraph shall not be interpreted as a waiver of the state’s sovereign immunity from suit in Federal Courts granted by the Eleventh Amendment to the United States Constitution. Mandatory Provisions: The provisions found in Contractual Provisions Attachment (DA-146a) are incorporated by reference and made a part of this contract. Integration: This contract, in its final composite form, shall represent the entire agreement between the parties and shall supersede all prior negotiations, representations or agreements, either written or oral, between the parties relating to the subject matter hereof. This contract between the parties shall be independent of and have no effect on any other contracts of either party. Injunctions: Should Kansas be prevented or enjoined from proceeding with the acquisition before or after contract execution by reason of any litigation or other reason beyond the control of the State, Contractor shall not be entitled to make or assert claim for damage by reason of said delay. Acceptance: No contract provision or use of items by the State shall constitute acceptance or relieve the Contractor of liability in respect to any expressed or implied warranties. Breach: Waiver or any breach of any contract term or condition shall not be deemed a waiver of any prior or subsequent breach. No contract term or condition shall be held to be waived, modified, or deleted except by a written instrument signed by the parties thereto. If any contract term or condition or application thereof to any person(s) or circumstances is held invalid, such invalidity shall not affect other terms, conditions, or applications which can be given effect without the invalid term, condition or application To this end the contract terms and conditions are severable. Equipment: All offered equipment, equipment options, and hardware expansions must be identified by manufacturer and model number and descriptive literature of such equipment must be submitted with the bid. Default on Delivery: Any Contractor who defaults on delivery as defined in this Contract may, be barred from bidding on any subsequent Contract for a period to be determined. Indefinite Quantity Contract: This Contract is for an open-ended contract between a vendor and the State to furnish an undetermined quantity of a good or service in a given period of time. Insurance and Indemnification: The Contractor will be required to procure and maintain at contractor’s expense, during the period of agreement, the insurance described in the following subparagraphs. Insurance must be with a company or companies qualified to do business in Kansas, acceptable to the STATE and FHSU and written on the standard approved comprehensive General Liability Policy form. The CONTRACTOR must furnish a certificate showing that such insurance is in effect prior to the signing of contract award. A renewal certificate shall be filed annually thereafter for the duration of the contract. This certificate shall be submitted to the Administration and Finance Office of the University. All liability insurance policies will name FHSU as additional insured with respect to claims, demands, suits, judgments, costs, charges, and expenses arising out of, or in connection with, any loss, damage, or injury resulting from the negligence or other fault of the CONTRACTOR, its agent, representatives, and employees. The CONTRACTOR must furnish certificates of insurance to the STATE and FHSU in the following minimum limits prior to execution of an exclusive agreement: Contract Number 30831 Page 7 Comprehensive General Liability Insurance: With limits not less than $1 million for each occurrence involving bodily injury and property damage, a general aggregate of $1 million and products-completed operation aggregate of $ 1 million. Commercial General Liability will include the following coverage: premises operations broad form property damage, completed operations, independent contractors, and contractual and products liability; Comprehensive Automobile Liability Insurance: This insurance, in an amount not less than $1million for bodily injury and property damage combined will cover all owned, non-owned or hired vehicles Worker’s Compensation Insurance as required by Kansas statute; Employer’s Liability Insurance in not less than $100,000 bodily injury by accident, each accident; $500,000 bodily injury by disease, policy limit; $100,000 bodily injury by disease, each employee; Property Damage Insurance in an amount of not less than $3 million to cover all sums, which the Contractor will legally be liable to pay be reason of liability for damages to or destruction of FHSU’s property, including the loss of use thereof; Employees Dishonesty Bond to be blanket bond with minimum limits of $1 million per loss. The CONTRACTOR shall indemnify the STATE and FHSU against any and all claims for injury to or death of any person; for loss or damage to any property; and for infringement of any copyright or patent occurring in connection with or in any way incidental to or arising out of the occupancy, use, service, operations or performance of work under this contract. The STATE and FHSU shall not be precluded from receiving the benefits of any insurance the CONTRACTOR may carry which provides for indemnification for any loss or damage to property in the CONTRACTOR’S custody and control, where such loss or destruction is to FHSU property. The CONTRACTOR shall do nothing to prejudice the State and FHSU’s right to recover against third parties for any loss, destruction or damage to STATE or FHSU property. Equal Opportunity: In the course of its pursuit of the partnership, the CONTRACTOR is to comply with all existing federal, state and local laws prohibiting discrimination. Sexual Harassment: Federal law and the policies of the STATE and FHSU prohibit sexual harassment of individuals in the FHSU community. Contractors, subcontractors, and suppliers for this project are required to exercise control over their employees to prohibit acts of sexual harassment. Smoking Policy: Smoking is a potential public health and fire hazard. It is restricted to prevent infringements upon others and to create and maintain an environment that is in the best interest of the safety, health, and well being of all the users of the STATE and FHSU buildings. Smoking is not permitted in any laboratory, elevator, library, indoor theater, art gallery, concert hall, sports arena or other locations where no smoking signs are posted. The CONTRACTOR is expected to respect this smoking policy and fully comply with it. Drug Free Workplace: The CONTRACTOR agrees that in the performance of this contract, no employee of the CONTRACTOR shall engage in the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance in conducting any activity covered by this contract. The STATE and FHSU reserves the right to request a copy of the Contractors Drug Free Workplace Policy. The CONTRACTOR further agrees to insert a provision similar to this statement in all subcontracts for services required. Contract Number 30831 Page 8 Required Features & Services The Tiger Card will continue to function as a private label debit card within the debit product portfolio of Commerce Bank. The Tiger Card will continue to be linked to a free FDIC-insured demand deposit bank account (DDA) which requires no deposit to open and requires no minimum balance to be maintained. The availability of deposits will remain unchanged from the existing contract. Commerce Bank will continue to market the Tiger Card's debit function to area merchants and cardholders. Currently, the Tiger Card is accepted at 54 Hays locations and thousands of merchants participating in the STARSM point-of-sale network nationally. Beginning May 1, 2004, the STAR will be replaced with the PLUS network system. Other features of the account include: No fees per check written No monthly charges or maintenance fees R Universal ATM access via the STARSM and CIRRUS networks. (Effective May 1, 2004, STAR and CIRRUS will be replaced with the PLUS and Interlink networks.) PIN Point-of-Sale debit transactions with no processing fees 24-hour account access and customer service Telephone account inquiry and access Free Internet Account access Toll-free customer service line Direct Deposit of student financial aid via Tiger Card processing Direct Deposit of on and off-campus student payroll Monthly statement of account activity ACH and wire transfer capabilities See Attachment B for a complete Tiger Checking fee schedule. Implementation Commerce Bank will require no modifications to existing Tiger Card functions or production. Commerce Bank will continue to administer the Tiger Checking bank account and operate its branch facility on campus. No modification of existing card stock will be required. No purchase of new card stock will be required. No re-carding will be necessary. No modification of card production or encoding will be required. Commerce Bank is the only bidding candidate to offer “Day One” focus on students’ banking needs with no interruption or disruption of banking services to students. No redevelopment of informational marketing materials will be required. Equipment & Support Commerce Bank will continue to assist the University in the operation of the Tiger Card program. This assistance will be in the form of program revenue and includes an initial assistance payment within 30 days of contract inception. Commerce will also provide a share of debit card earnings and will pay branch lease payments. Branch lease payments will be made monthly to the Memorial Union and shared earnings will be paid on a quarterly basis to the Memorial Union. Information regarding this assistance is itemized in Attachment A. Commerce Bank will continue to utilize Tranz 330 and 380X2 terminals and Verifone 250 printers to process Tiger Card transactions. Commerce Bank will provide this equipment at no cost for use in existing University merchant locations. Equipment for additional University locations will be provided at no cost. Commerce reserves the right to assess equipment lease charges to independent contractors and other merchant locations on campus not owned by the University. Commerce Bank will continue to work closely with potential and current merchants regarding use of customized software and PC-based processing options. Contract Number 30831 Page 9 Merchant Support Commerce Bank will continue to offer Tiger Card merchants access to our in-house merchant support center. This group offers merchant assistance and troubleshooting of processing and terminal problems. Commerce Bank shall provide a Tiger Card Account Representative who will be responsible for the sales, installation and support of Tiger Card merchants. The representative will also assist with Commerce Bank's overall marketing and University special events. The representative will make regular monthly visits to the Fort Hays State campus and to Hays area merchants. Authorization of Transactions All Tiger Card merchant transactions will continue to be based upon merchant receiving authorization of sufficient funds for completion of the transaction. The University has no liability for unauthorized transactions, except in the case of fraudulent activity performed by a University employee or agent. The University will not be held responsible for checks written or ATM withdrawals by cardholders with insufficient funds. Lost or Stolen Cards/Emergency Notification In the event a Tiger Card is lost or stolen, the cardholder can contact any Commerce Bank during normal business hours. In addition, Commerce Bank provides a toll-free, 24-hour account information line for service to cardholders. Once a Tiger Card has been reported lost or stolen, a hold is placed on the cardholder's Tiger Checking account so that no bank-held funds are available for unauthorized use. The University is not liable for any bank-related financial transactions resulting from usage of lost/stolen cards other than fraudulent use by University employees or agents. Liability regarding lost/stolen card usage is the responsibility of the merchant who is to verify the photo and obtain an authorization for Tiger Card purchases of goods and services. Merchant Discount Rates Commerce Bank will continue to assess fair, reasonable and equitable merchant discount rates to retail establishments that accept the Tiger Card. Commerce Bank reserves the right to establish all merchant discount rates. Merchant Fees for On-Campus Locations Commerce Bank will not assess merchant discount rates or other fees for Tiger Card transactions to those campus departments currently at a zero discount rate for Tiger Card acceptance. Commerce Bank reserves the right to assess merchant discount rates for Tiger Card transactions to independent contractors and other merchant locations on campus not owned by the University. Branch Facility In March 2004 Commerce Bank operated four (4) branch facilities in the city of Hays, including three (3) off- campus locations and one (1) on the campus of the Fort Hays State University. Commerce Bank will continue to operate a full-service banking branch on campus. This branch will continue to offer immediate assistance to Commerce Bank student, faculty and staff account holders Monday through Friday. Some services provided by this branch include but are not limited to: Service and handling of Tiger Card accounts Account balance and transaction inquiries Changing or updating Tiger Card account information Blocking lost/stolen Tiger Card account access Assisting with PIN selection and encoding Merchant assistance All types of teller transactions Student loan applications and other financial services Commerce Bank will continue to absorb all costs associated with support of the on-campus branch. Commerce Bank shall pay the Memorial Union rent in the amount of $9.50 per square foot for combined branch and ATM locations. The rent includes the University providing janitorial and utility costs for the rented area. Rent shall be payable to the Memorial Union at the beginning of each contract year. The length of this lease will coincide with the terms of the Tiger Card contract. Contract Number 30831 Page 10 Commerce anticipates the potential relocation of its branch due to renovations of the Memorial Union. Monthly branch lease payments will be calculated at $9.50 per square foot. The Memorial Union will provide a finished branch facility. Commerce Bank will provide and retain ownership of all interior furnishings and equipment. ATM Commerce Bank will continue to provide Tiger Cardholders the ability to withdraw cash and make deposits at ATMs. Number of ATMs and locations Commerce Bank supports its own ATM network of over 355 ATMs throughout Kansas, Missouri and Illinois. This includes three (3) off-campus ATMs in the city of Hays and one (1) on the campus of Fort Hays State University. Commerce Bank is a member of the STAR, CIRRUS, Visa and MasterCard ATM networks and supports an entirely automated settlement of all ATM transactions. Tiger Cards will continue to be included in the STAR and CIRRUS ATM networks until May 1, 2004, in which STAR and CIRRUS systems will be replaced by the PLUS and Interlink systems. Commerce Bank currently maintains an ATM location on campus and will continue to maintain this ATM location. In addition, the University would like to add one (1) additional ATM in McMindes Hall on the University campus. The location and addition of an ATM will be agreed upon by Commerce Bank and Fort Hays State University. A comprehensive ATM lease agreement will be completed in conjunction with this proposed contract; however, the following ATM logistics and specifications will apply: The University will: provide facilities where ATMs will be installed cover charges incurred for telephone lines servicing the ATMs cover the cost of maintaining common areas abutting the location of the ATMs provide electricity and lighting for the use and operation of the ATMs provide electricity and lighting for the ATMs’ signage Commerce Bank will: cover reasonable expenses related to the preparation of the facilities for installation of the ATMs cover costs associated with the ATMs containment cover the cost of servicing, maintaining, repairing, replacement, relocation or removal of the ATMs cover the cost of electricity and lighting for ATM use and operation cover the cost of electricity and lighting for ATM signage cover the cost of any government tax, levy or licensing fee associated with the installation and operation of the ATMs New ATM Functions As of March 2004, Commerce Bank had completed a comprehensive upgrade of our entire ATM system. This upgrade provides additional reliability and convenience for our customers and allows for greater flexibility in developing future ATM functions. Some key benefits provided by this upgrade include: The ability to link multiple debit cards to a single eligible account On-line detailed transaction tracking and reporting Added flexibility for setting spending limits for ATM and POS transactions The ability for customers to assign names to their accounts using the ATM Liability for fraudulent use or overdrafts The University will have no liability for fraudulent use or overdrafts resulting from the Tiger Card or Tiger bank accounts for ATM transactions in any ATM network, other than fraudulent use by University employees or agents. Contract Number 30831 Page 11 Marketing Commerce Bank maintains an in-house creative services department to facilitate marketing items. In addition, Commerce Bank maintains relationships with numerous professional advertising agencies to produce and implement creative and strategic marketing plans. Commerce Bank also may periodically utilize student creative talent to develop and/or implement some on-campus marketing. Commerce Bank will continue to actively market the Tiger Card through print and other media. Commerce Bank will continue to refine and produce an informational interactive CD ROM. Some other forms of marketing will include, but are not limited to: Print ads and color brochures outlining card functions for banking and campus usage Customized coupon flyers and print ads featuring participating merchant offers General information brochures Merchant flyers, window stickers, counter cards and brochures Customized statement messages Participation in and sponsorship of selected university events and on-campus venues Participation in orientation events for new students, faculty and staff As always, new marketing strategies will also be explored, which may include expanded use of the interactive CD ROM, as well as web-based marketing. These marketing strategies may be discussed during further negotiations. The minimum marketing budget commitment for the 5 (five) year contract period will be $125,000. All marketing expenditures will be at the discretion of Commerce Bank. See Attachment A for details on this marketing commitment. Educational Workshops Commerce Bank will work closely with Fort Hays State University in providing educational workshops for University students on such topics as budgeting, checkbook balancing, financial responsibility, and wise use of credit. Batch Reports Commerce Bank will continue to provide monthly summary reporting to the University regarding the number of accounts, ATM and purchasing activity as well a monthly revenue summary. All other requests for reporting will be subject to approval by Commerce Bank's legal and compliance departments and are subject to federal and state banking regulations. Products & Services Commerce Bank will provide the University a portion of the revenue generated by Tiger Card and Visa debit card transactions. A complete remuneration schedule is included in Attachment A. Commerce Bank also offers a Benefits Banking package to the Faculty and Staff of Fort Hays State University and its affiliated agencies. The Benefits Banking packages are designed for the employees of Commerce Bank’s major business partners and they provide a wide range of banking benefits. Memorial Union Renovations (From 2004) Plans are in place for a multi-million dollar renovation for the existing Memorial Union. There is a possibility of moving the bank operations to the first floor. Agreement will be reached between the University and Commerce Bank in the location and design. Contract Number 30831 Page 12 ATTACHMENT A Income and Expense Settlement Commerce Bank will provide the following remuneration and expense settlement arrangement and benefits. 1. The University will be paid $20,000 within 30 days of contract finalization which will be payable to the Memorial Union. 2. The University will be paid a share of earnings equal to 10 percent of the merchant discount fees collected by Commerce Bank for Tiger Card transactions. A minimum of $1,000 per year in Tiger Card shared earnings is guaranteed. 3. The University will be paid .05% (interchange) of offline spending volume (signature-based transactions completed at Visa® merchant locations) from all Commerce Bank debit products. (Visa Check Card, Gold and Platinum Visa Check Card and Business Visa Check Card). Income will be paid for all of the above products sold and maintained at the FHSU branch location throughout the contract term, including products sold prior to this agreement. Increases or decreases in Visa’s stated interchange rates will result in proportionate increases or decreases in the shared earnings paid to the University. A minimum of $2,000 per year in shared earnings revenue is guaranteed, regardless of Visa-mandated interchange rates. 4. The University will not incur expenses related to the Tiger Card, Tiger Checking Account or any bank product. 5. The existing earnings deficit, ($206,317.80 as of April 30, 2004) will be absorbed by Commerce Bank and the University will not accrue a negative earnings deficit. 6. The Memorial Union will be paid $9.50 per square foot for leased space within the Memorial Union. Lease payments will be made monthly to the Memorial Union. 7. Shared earnings will be paid to the Memorial Union on a quarterly basis and will be calculated according to the schedule below. University Remuneration Schedule Equipment & Maintenance Payment $ 20,000 Shared Earnings from Regular Merchant 10% Discount income- Tiger Card $1,000/yr Minimum Payment (generally off campus) $5,000 (5 years) Shared Earnings from Visa Debit Products .05% Visa debit cards sold at FHSU (% of signature-based volume) branch .05% Benefits Banking Visa debit cards sold at any branch $2,000/yr Minimum Payment $10,000 (5 years) Marketing Commitment $125,000 (5 years) Rent $9.50 per square foot Fort Hays State University Processing Fees Tiger Card Description Cost Per Item Accounts on File None Point-of-Sale On-Us Transactions None Foreign ATM Authorizations None Point-of-Sale Authorizations None Voice Authorizations None Lost/Stolen Processing None Print Statements None Postage None Contract Number 30831 Page 13 ATTACHMENT B The following is a detailed breakdown of fees associated with the Tiger Checking Account. FEE SCHEDULE TIGER CHECKING ACCOUNT Minimum Deposit to Open None Monthly Service Fees None Check Writing* No Charge Commerce Network No Charge ATM Withdrawals Commerce Network No Charge ATM Inquiries and Transfers Foreign ATM Withdrawals and $1.25 Inquiries Point-of-Sale Debit Card Transactions No Charge Pre-Authorized ACH Transfers from No Charge Parent/guardian or other Account Statements No Charge Check Safekeeping Required Overdraft Fees Non-sufficient Funds Check Returned $29.00 Non-sufficient Funds Check Paid $29.00 Returned Deposited Item $3.00 Stop Payment $20.00 24-Hour Account Information Line No Charge PC Internet Account Access No Charge Overdraft Protection Optional See Branch for Fees Contract Number 30831 Page 14 State of Kansas Department of Administration DA-146a (Rev. 1-01) CONTRACTUAL PROVISIONS ATTACHMENT Important: This form contains mandatory contract provisions and must be attached to or incorporated in all copies of any contractual agreement. If it is attached to the vendor/contractor's standard contract form, then that form must be altered to contain the following provision: "The Provisions found in Contractual Provisions Attachment (Form DA-146a, Rev. 1-01), which is attached hereto, are hereby incorporated in this contract and made a part thereof." The parties agree that the following provisions are hereby incorporated into the contract to which it is attached and made a part thereof, said contract being the 1st day of April, 2004. 1. Terms Herein Controlling Provisions: It is expressly agreed that the terms of each and every provision in this attachment shall prevail and control over the terms of any other conflicting provision in any other document relating to and a part of the contract in which this attachment is incorporated. 2. Agreement With Kansas Law: All contractual agreements shall be subject to, governed by, and construed according to the laws of the State of Kansas. 3. Termination Due To Lack Of Funding Appropriation: If, in the judgment of the Director of Accounts and Reports, Department of Administration, sufficient funds are not appropriated to continue the function performed in this agreement and for the payment of the charges hereunder, State may terminate this agreement at the end of its current fiscal year. State agrees to give written notice of termination to contractor at least 30 days prior to the end of its current fiscal year, and shall give such notice for a greater period prior to the end of such fiscal year as may be provided in this contract, except that such notice shall not be required prior to 90 days before the end of such fiscal year. Contractor shall have the right, at the end of such fiscal year, to take possession of any equipment provided State under the contract. State will pay to the contractor all regular contractual payments incurred through the end of such fiscal year, plus contractual charges incidental to the return of any such equipment. Upon termination of the agreement by State, title to any such equipment shall revert to contractor at the end of State's current fiscal year. The termination of the contract pursuant to this paragraph shall not cause any penalty to be charged to the agency or the contractor. 4. Disclaimer Of Liability: Neither the State of Kansas nor any agency thereof shall hold harmless or indemnify any contractor beyond that liability incurred under the Kansas Tort Claims Act (K.S.A. 75-6101 et seq.). 5. Anti-Discrimination Clause: The contractor agrees: (a) to comply with the Kansas Act Against Discrimination (K.S.A. 44-1001 et seq.) and the Kansas Age Discrimination in Employment Act (K.S.A. 44-1111 et seq.) and the applicable provisions of the Americans With Disabilities Act (42 U.S.C. 12101 et seq.) (ADA) and to not discriminate against any person because of race, religion, color, sex, disability, national origin or ancestry, or age in the admission or access to, or treatment or employment in, its programs or activities; (b) to include in all solicitations or advertisements for employees, the phrase "equal opportunity employer"; (c) to comply with the reporting requirements set out at K.S.A. 44-1031 and K.S.A. 44-1116; (d) to include those provisions in every subcontract or purchase order so that they are binding upon such subcontractor or vendor; (e) that a failure to comply with the reporting requirements of (c) above or if the contractor is found guilty of any violation of such acts by the Kansas Human Rights Commission, such violation shall constitute a breach of contract and the contract may be cancelled, terminated or suspended, in whole or in part, by the contracting state agency or the Kansas Department of Administration; (f) if it is determined that the contractor has violated applicable provisions of ADA, such violation shall constitute a breach of contract and the contract may be cancelled, terminated or suspended, in whole or in part, by the contracting state agency or the Kansas Department of Administration. Parties to this contract understand that the provisions of this paragraph number 5 (with the exception of those provisions relating to the ADA) are not applicable to a contractor who employs fewer than four employees during the term of such contract or whose contracts with the contracting state agency cumulatively total $5,000 or less during the fiscal year of such agency. 6. Acceptance Of Contract: This contract shall not be considered accepted, approved or otherwise effective until the statutorily required approvals and certifications have been given. 7. Arbitration, Damages, Warranties: Notwithstanding any language to the contrary, no interpretation shall be allowed to find the State or any agency thereof has agreed to binding arbitration, or the payment of damages or penalties upon the occurrence of a contingency. Further, the State of Kansas shall not agree to pay attorney fees and late payment charges beyond those available under the Kansas Prompt Payment Act (K.S.A. 75-6403), and no provision will be given effect which attempts to exclude, modify, disclaim or otherwise attempt to limit implied warranties of merchantability and fitness for a particular purpose. 8. Representative's Authority To Contract: By signing this contract, the representative of the contractor thereby represents that such person is duly authorized by the contractor to execute this contract on behalf of the contractor and that the contractor agrees to be bound by the provisions thereof. 9. Responsibility For Taxes: The State of Kansas shall not be responsible for, nor indemnify a contractor for, any federal, state or local taxes which may be imposed or levied upon the subject matter of this contract. 10. Insurance: The State of Kansas shall not be required to purchase, any insurance against loss or damage to any personal property to which this contract relates, nor shall this contract require the State to establish a "self-insurance" fund to protect against any such loss or damage. Subject to the provisions of the Kansas Tort Claims Act (K.S.A. 75-6101 et seq.), the vendor or lessor shall bear the risk of any loss or damage to any personal property in which vendor or lessor holds title. 11. Information: No provision of this contract shall be construed as limiting the Legislative Division of Post Audit from having access to information pursuant to K.S.A. 46-1101 et seq. 12. The Eleventh Amendment: "The Eleventh Amendment is an inherent and incumbent protection with the State of Kansas and need not be reserved, but prudence requires the State to reiterate that nothing related to this contract shall be deemed a waiver of the Eleventh Amendment."
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