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Home My WebLink About20071016.tiff RESOLUTION RE: APPROVE PARTICIPATION AGREEMENT FOR ALTERNATIVE FORMS OF PAYMENT SERVICES AMONG THE STATE OF COLORADO, BANK OF AMERICA, N.A., AND BA MERCHANT SERVICES AND AUTHORIZE CHAIR TO SIGN WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to Colorado statute and the Weld County Home Rule Charter, is vested with the authority of administering the affairs of Weld County, Colorado, and WHEREAS, the Board has been presented with a Participation Agreement for Alternative Forms of Payment Services among the State of Colorado, the Bank of America, N.A., and BA Merchant Services between the County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County, commencing upon full execution,with further terms and conditions being as stated in said agreement, and WHEREAS, after review, the Board deems it advisable to approve said agreement, a copy of which is attached hereto and incorporated herein by reference. NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld County, Colorado, that the Participation Agreement for Alternative Forms of Payment Services among the State of Colorado, the Bank of America, N.A., and BA Merchant Services between the County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County, be, and hereby is, approved. BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized to sign said agreement. The above and foregoing Resolution was, on motion duly made and seconded,adopted by the following vote on the 11th day of April, A.D., 2007. BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COLORADO ATTEST: iaI ✓ �� XCUSED -vid E. Long, Chair Weld ounty Clerk to the .- Willis H. Eo-Tem BY: Cq �a1� •q ` r. -- De ty Cler o the Board �� William F. Garcia APP ED AS T M: EXCUSED Robert D. Masden oun y ttorney az IIl�O j uglas fwd m er a'� Date of signature: l 2007-1016 AC0020 (el 1 At ` / 8-v5-) o c-27-o 7 State of Colorado Department of the Treasury 9RS p`4p Cary Kennedy Eric S. Rothaus State Treasurer y•; 04 Deputy Treasurer \ 1 n F.w�� MASTER SERVICE AGREEMENT FOR ALTERNATIVE FORMS OF PAYMENT SERVICES BETWEEN THE STATE OF COLORADO AND BANK OF AMERICA, N.A. and BA MERCHANT SERVICES PARTICIPATION AGREEMENT WHEREAS, the State of Colorado, Department of Treasury, pursuant to C.R.S. § 24-19.5-104 has authority to enter into a master service agreement for alternative forms of payment services and has entered into a Master Service Agreement dated May 1, 2006 with Bank of America, N.A. and BA Merchant Services, LLC to process credit card transactions on behalf of State agencies (hereinafter "Master Service Agreement"). WHEREAS, consistent with C.R.S. § 24-110-101 et seq. the State and its instrumentalities or political subdivisions may enter into cooperative agreements for certain goods and services, WHEREAS, the undersigned, \A/EL...6 (x wQ7y , is an instrumentality or political subdivision of the State of Colorado and is exempt from federal income taxes under Internal Revenue Code Section 115 ("Participating Entity"). NOW THEREFORE, the undersigned has authority to sign this Agreement on behalf of the Participating Entity, and upon execution of this Agreement, does hereby agree to the following: I. PARTICIPATION TERMS AND CONDITIONS A. The Participating Entity has received a copy of the Master Service Agreement, including any and all Exhibits and amendments and hereby agrees to become a Participating Entity under the Master Service Agreement. B. The Participating Entity agrees to adhere to and be bound by all the terms and conditions of the Master Service Agreement, as may be amended. C. The Participating Entity agrees to use the credit card processing equipment only for purposes set forth in the Master Agreement. 2007-1016 PARTICIPATION AGREEMENT D. The Participating Entity understands that participation in the Master Service Agreement is limited to instrumentalities of the Sate of Colorado and political subdivisions of the State of Colorado and agrees to notify the State Treasurer in writing within 10 days if it ceases to be a Participating political subdivision of the State of Colorado or an instrumentality of the State of Colorado. II. FEES TO BE PAID TO BANK A. The Participating Entity agrees to pay all fees charged by the Bank under the Master Service Agreement in a timely manner. The Participating Entity shall establish a separate demand deposit account with the Bank for deposits and fee payments attributable to the Participating Entity. Under no circumstances shall the State be responsible for any loss, liability, deposit, fee or credit card transaction to the Bank or any other person or entity which is attributable to the Participating Entity. B. Such fees will be debited monthly from the Participating Entity's Deposit Account or billed to the Participating Entity via an invoice process. III. EFFECT IVE DATE AND TERMINATION A. This Participation Agreement will become effective on the date it is signed by the Participating Entity and the Bank and approved by the Treasurer. B. This Participation Agreement remains in full force and effect until terminated as provided in this section or until the Master Service Agreement is terminated. C. If the Participating Entity intends to terminate its participation in the Master Service Agreement, it must notify the Treasurer in writing at least one calendar month prior to the effective date of termination. The Participating Entity is responsible for returning equipment to the Bank and settling its demand deposit account with the Bank. D. The Participating Entity or Contractor may terminate this Participation Agreement at any time by giving the other thirty(30) days prior written notice. E. In the event of non-payment of a fee invoice for forty-five (45) days or more, Contractor may cease processing after fifteen(15) days prior written notice to Participating Entity. F. The Treasurer may terminate a Participating Entity's participation in the Master Service Agreement if it: i) does not comply with the Master Service Agreement; ii) facilitates credit card transaction fraud; iii) does not administer credit card transactions in accordance with the Master Service Agreement, iv) allows or facilitates operational defects in its administration of credit card transactions, or v) if the Treasurer determines that it is in the best interests of State. The Treasurer shall notify the Participating Entity of its termination and cooperate with the Participating Entity in transitioning credit card transaction processing to a successor. IV. NOTICES Page 2 of 4 PARTICIPATION AGREEMENT A. Any notice required or permitted to be given under this Participation Agreement by one party to the other shall be in writing and shall be given and deemed to have been given if hand-delivered, delivered by telephonic facsimile transmission equipment and confirmed by telephone with an original mailed or hand-delivered thereafter, or mailed by certified or registered mail with postage prepaid to the party or their successor at the address specified as follows: The Entity: The Contractor: BA Merchant Services, LLC 1231 Durret Lane Louisville, Kentucky 40213 Attention: Contract Management Fax Number: (502) 315-2271 B. Either party may change the address to which notices are to be delivered by giving to the other party not less than ten (10) Business Days prior written notice thereof. V. MISCELLANEOUS PROVISIONS A. The Participating Entity agrees to abide by the Treasurer's decisions on all matters involving the Master Service Agreement. The Treasurer may amend the Master Service Agreement at any time in accordance with the terms of the Master Service Agreement. B. This Participation Agreement, incorporating the terms of the Master Service Agreement, and all of the Exhibits contains the entire understanding of the parties and supersedes any and all previous discussions, proposals, or agreements, if any, between the Bank and the Participating Entity with respect to the subject matter hereof. C. This Participation Agreement may not be amended except by an instrument in writing signed by an authorized representative of the Bank and the Participating Entity and subject to approval by the Treasurer. D. The words or phrases not otherwise defined herein will have the same meanings ascribed to them the in the Master Service Agreement, and the attached Exhibits. E. This Participation Agreement is binding on the Bank and the Participating Entity and their successors and assigns. Page 3 of 4 PARTICIPATION AGREEMENT IN WITNESS WHEREOF, the undersigned hereby executes this Participation Agreement on April 11 , 2007 effective as of April 11, 2007 E' ATTEST. Participating Entity WELD w1 CLER BOARD t Weld County, Colorado Iv �L1 / '4 LT 04/11/200p "' lit;J7,4- OA:iJ Signature Date ATTESTING TO BOARD OF COUNTY COMMISSIONER SIGNATURES ONLY Name (please print) William H. Jerke Title Chair Pro—Tem. Board of Weld County Comtnissinners Entity Weld County, Colorado State of Colorado, Department of Treasurys) By: \SQ(,t �j�(/I— c;) 1/✓It1Q Title: Cash anager Bank of America, N. A. p BA Merchant Services, LLC By: kg a i By: 3 frid 1 - Printed Name Printed Name TitleA Q MEnc.44,EF ts 04-e EA--- Title: M)? 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P O a.. 0 0 0 0 0 0 0 0 co o 0 0 0 0 0 0 O1 'm m a> m O1 cm O) a s n. a a a a s a 8 .i a ZZZZZ z z z z 0 0 0 0 0 0 0 0 0 a 0 0 0 0 0 0 \ o O 0 0 .- O O O o O O 0 0 O O O Iii.+ 00 '- '•- - 000000 r U U U Tt Z 0 0 0 0 0 0 0 0 0 ti ° rn ° ° rn rn rn rn O MASTER SERVICE AGREEMENT FOR ALTERNATIVE FORMS OF PAYMENT SERVICES BETWEEN THE STATE OF COLORADO AND Maps o°i BANK OF AMERICA, N.A. and >'yr�VA� ^,''Ny BA MERCHANT SERVICES, LLC `� �*'"'s 3,A hh„cz. cove,- Department Number CLIN WAA 00003 Contract Routing Number 00003 THIS CONTRACT, made this first day of May 2006, by and between the State of Colorado for the use and benefit of the Department of Treasury hereinafter referred to as Treasury or the State and Bank of America, N.A., a national banking association, and its wholly owned subsidiary BA Merchant Services LLC, with offices at 100 North Tryon Street, Charlotte, NC 28255, and 1231 Durrett Lane, Louisville, KY 90284 respectively. For the purposes of the Agreement, either or both Bank of America, N.A. and BA Merchant Services, LLC will hereinafter be referred to as the Bank or Contractor. WHEREAS, Per C.R.S. Section 24-19.5-104 the Treasury has been granted the authority enter into a master service agreement with providers of alternative forms of payment services and funds have been budgeted, appropriated or otherwise made available for such services; WHEREAS, required approval, clearance and coordination has been accomplished from and with appropriate agencies; WHEREAS, the Bank's proposal was selected in accordance with State law as a result of the process initiated with a Fee-Proposal-Request (FPR) dated November 21, 2005. NOW THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES SET FORTH BELOW, THE STATE AND THE BANK AGREE TO THE FOLLOWING TERMS AND CONDITIONS: 1. Scope of Work A. The Bank shall perform the services described in Exhibits 1 to 4, inclusive. i. EXHIBIT 1 —The Fee-Proposal-Request dated November 21, 2005. ii. EXHIBIT 2—The proposal from Bank of America Merchant Services Division dated December 6, 2005. iii. EXHIBIT 3 — Statement of Work Memorandum of Understanding and Fee Schedules. iv. EXHIBIT 4—Various service documents including the appendices to the December 6, 2005 proposal from the Bank, updates or revisions to these documents, and user guides or service agreements prepared and distributed in the future. v. EXHIBIT 5 —Option Letter. 2. Order of Precedence A. The provisions of this contract shall govern the relationship between the State and the Bank. In the event of conflicts or inconsistencies among this contract, the exhibits, or the attachments, such conflicts or inconsistencies shall be resolved by reference to the documents in the following order of priority: i. The Colorado Special Provisions incorporated at the end of this contract. ii. The terms and provisions incorporated in this contract. iii. Exhibits 2, 3, 4, and 5, in the same order of precedence as numbered. iv. The Fee-Proposal-Request attached hereto and incorporated herein as Exhibit 1. 3. Performance Period A. The contract shall be effective upon approval by the State Controller, or designee, or on May 1, 2006, whichever is later, and the contract shall terminate April 30, 2008. B. The contract performance contemplated herein shall commence as soon as practicable after the effective date of this contract and shall be undertaken and performed in the sequence and manner set forth in this contract. The parties agree that "time is of the essence," and failure of the Bank to implement promptly the services presented in this contract shall be grounds for termination for default, subject to adjustment of extension in the time of performance according to the terms of this contract. C. The Bank understands and agrees that the State may not be liable for payment of work or services or for costs or expenses incurred by the Bank prior to the proper execution and State Controller approval of this contract. D. The State may require continued performance for a period up to one year of any services within the limits and at the rates specified in the contract. The State may exercise the option by written notice to the Bank deposited in the U. S. mail before the end of the performance period of the contract using a form substantially equivalent to Exhibit 5. The State shall give the Bank thirty (30) days' preliminary written notice of its intent to execute this option, although such notice does not commit the State to an extension. The total duration of this contract, including the exercise of any options under this clause, shall not exceed three (3) years. 4. Price/Cost A. The Bank shall provide the services described herein for the fees presented in Exhibit 2. The Bank may increase the above fees and pass through fee changes outside its control such as credit card interchange fees with written notification and justification to State within 30 days from the effective date of any fee increase. B. Financial obligations of the State payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, or otherwise made available. C. The Treasury believes that sufficient funds will be available for the full term of this contract. Where, for reasons beyond the control of the Treasury funds are not allocated for any fiscal period beyond the one in which this contract is entered into; where the Treasury has exhausted efforts to obtain funds legally available for future fiscal periods; and where such failure to obtain funds does not result from any act or failure to act on the part of the State, the State will not be obligated to make the payments remaining Page 2 of 43 beyond the State's then current fiscal period, nor shall the State be liable for any penalty therefore. In that event, the State shall notify the Bank of such non-allocation of funds by sending written notice thereof to the Bank thirty (30) days prior to the effective date of termination. 5. Payment Terms The State shall pay reasonable, allocable, and allowable costs of the services provided pursuant to this contract. Unless otherwise provided and where appropriate, Treasury shall establish payment procedures. A. In the event this contract is terminated, final payment to the Bank may be withheld at the discretion of the State until completion of a final audit and remittance of all Unclaimed Property to the State pursuant to C.R.S. 38-13-101 et seq. B. Incorrect charges due to omission, error, fraud, or defalcation shall be recovered from the Bank under this contract or from other contracts between the State and the Bank, or by the State as a debt due to the State. C. The State reserves the right to audit the Bank's books and records relating to the performance of this contract for a period of three years after contract expiration or termination in order to validate the costs paid under this contract, and any costs not allowable under the State procurement rules shall be reimbursed by the Bank, or offset against current obligations due by the State to the Bank, at the State's election. 6. Legal Authority The Bank warrants that it possesses the legal authority to enter into this contract and that it has taken all actions required by its procedures, by-laws, and/or applicable law to exercise that authority, and to lawfully authorize its undersigned signatory to execute this contract and to bind the Bank to its terms. The person(s) executing this contract on behalf of the Bank warrant that such person has full authorization to execute this contract. 7. Rights in Data, Documents, and Computer Software Any software, research, reports, studies, data, photographs, negatives or other documents, drawings or materials prepared by the Bank in the performance of its obligations under this contract shall be the exclusive property of the State and all such materials shall be delivered to the State by the Bank upon completion, termination, or cancellation of this contract. The Bank shall not use, willingly allow, or cause to have such materials used for any purpose other than the performance of its obligations under this contract without the prior written consent of the State. The ownership rights described herein shall include, but not be limited to, the right to copy, publish, display, transfer, prepare derivative works, or otherwise use the works. 8. Inspection and Acceptance The State reserves the right to inspect services provided under this contract at all reasonable times and places during the term of the contract. "Services" as used in this clause includes services performed or tangible material produced or delivered in the performance of services. If any of the services do not conform to contract requirements, the State may require the Bank to perform the services again in conformity with contract requirements, with no additional payment. When defects in the quality or quantity of service cannot be corrected by re-performance, the State may (1) require the Bank to take necessary action to ensure that the future performance conforms to contract requirements and (2) equitably reduce the payment due the Bank to reflect the reduced value of the services performed. These remedies in no way limit the remedies Page 3 of 43 available to the State in the termination provisions of this contract, or remedies otherwise available at law. 9. Remedies In addition to any other remedies provided for in this contract, and without limiting its remedies otherwise available at law, the State may exercise the following remedial actions if the Bank substantially fails to satisfy or perform the duties and obligation in this contract. Substantial failure to satisfy the duties and obligations shall be defined to mean significant insufficient, incorrect or improper performance, activities, or inaction by the Bank. These remedial actions are as follows: A. Suspend Bank's performance pending necessary corrective action as specified by the State without Bank's entitlement to adjustment in price/cost or schedule. B. Withhold payment to the Bank until the necessary services or corrections in performance are satisfactorily completed. C. Request the removal from work on the contract of employees or agents of the Bank whom the State justifies as being incompetent, careless, insubordinate, unsuitable, or otherwise unacceptable, or whose continued employment on the contract the State deems to be contrary to the public interest or the best interest of the State. D. Deny payment for those services or obligations which have not been performed and which due to circumstances caused by Bank cannot be performed, or if performed would be of no value to the State. Denial of the amount of payment must be reasonably related to the value of work or performance lost to the State. E. Terminate the contract for default. The above remedies are cumulative and the State, in its sole discretion, may exercise any or all of them individually or simultaneously. 10. Termination for Convenience The State may terminate this contract at any time the State determines that the purposes of the distribution of State moneys under this contract would no longer be served by completion of the project. The State shall effect such termination by giving written notice of termination to the Bank and specifying the effective date thereof, at least thirty (30) days before the effective date of such termination. In that event, all finished or unfinished documents, data, studies, surveys, drawings, maps, models, photographs, and reports or other material prepared by the Bank under this contract shall, at the option of the State, be delivered by the Bank to the State and shall become the State's property. The Bank shall be entitled to receive just and equitable compensation for any satisfactory services and goods delivered. If this contract is terminated by the State as provided herein, the Bank will be paid an amount which bears the same ratio to the total compensation as the services satisfactorily performed bear to the total services covered by this contract, less payments of compensation previously made, provided, however, that if less than sixty percent (60%) of the services covered by this contract have been performed upon the effective date of such termination, the Bank shall be reimbursed (in addition to the above payment) for that portion of the actual out-of-pocket expenses (not otherwise reimbursed under this contract) incurred by the Bank during the contract period which are directly attributable to the uncompleted portion of the services covered by this contract. In no event shall reimbursement under this clause exceed the contract amount. If this contract is Page 4 of 43 terminated for cause, or due to the fault of the Bank, the Termination for Cause or Default provision shall apply. 11. Termination for Default/Cause If, through any cause, the Bank shall fail to fulfill in a timely and proper manner its obligations under this contract, or if the Bank shall violate any of the covenants, agreements, or stipulations of this contract, the State shall thereupon have the right to terminate this contract for cause by giving written notice to the Bank of its intent to terminate and at least ten (10) days opportunity to cure the default or show cause why termination is otherwise not appropriate. In the event of termination, all finished or unfinished documents, data, studies, surveys, drawings, maps, models, photographs, and reports or other material prepared by the Bank under this contract shall, at the option of the State, become its property, and the Bank shall be entitled to receive just and equitable compensation for any services and goods delivered and accepted. The Bank shall be obligated to return any payment advanced under the provisions of this contract. This provision shall in no way limit other remedies available to the State in this contract, or remedies otherwise available at law. Notwithstanding the above, the Bank shall not be relieved of liability to the State for any damages sustained by the State by virtue of any breach of this contract by the Bank, and the State may withhold any payment to the Bank for the purposes of mitigating its damages until such time as the exact amount of damages due to the State from the Bank is determined. If after such termination it is determined, for any reason, that the Bank was not in default, or that Bank's action/inaction was excusable, such termination shall be treated as a termination for convenience, and the rights and obligations of the parties shall be the same as if this contract had been terminated for convenience, as described herein. 12. Standard Insurance Requirements The Bank shall obtain, and maintain at all times during the term of this contract, insurance in the following kinds and amounts: A. Workers' Compensation Insurance as required by State statute, and Employer's Liability Insurance covering all of the Bank's employees acting within the course and scope of their employment. B. Commercial General Liability Insurance written on ISO occurrence form CG 00 01 10/93 or equivalent, covering premises operations, fire damage, independent the Banks, products and completed operations, blanket contractual liability, personal injury, and advertising liability with minimum limits as follows: 1. $1,000,000 each occurrence; 2. $1,000,000 general aggregate; 3. $1,000,000 products and completed operations aggregate; and 4. $50,000 any one fire. 5. If any aggregate limit is reduced below $1,000,000 because of claims made or paid, the Bank shall immediately obtain additional insurance to restore the full aggregate limit and furnish to the State a certificate or other document satisfactory to the State showing compliance with this provision. Page 5 of 43 C. Automobile Liability Insurance covering any auto (including owned, hired and non- owned autos) with a minimum limit as follows: $1,000,000 each accident combined single limit. The State of Colorado shall be named as additional insured on the Commercial General Liability and Automobile Liability Insurance policies. Coverage required of the contract will be primary over any insurance or self-insurance program carried by the State of Colorado. The Insurance shall include provisions preventing cancellation or non-renewal without at least 45 days prior notice to the State by certified mail. The Bank will require all insurance policies in any way related to the contract and secured and maintained by the Bank to include clauses stating that each carrier will waive all rights of recovery, under subrogation or otherwise, against the State of Colorado, its agencies, institutions, organizations, officers, agents, employees and volunteers. All policies evidencing the insurance coverages required hereunder shall be issued by insurance companies satisfactory to the State. The Bank shall provide certificates showing insurance coverage required by this contract to the State within 7 business days of the effective date of the contract, but in no event later than the commencement of the services or delivery of the goods under the contract. No later than 15 days prior to the expiration date of any such coverage, the Bank shall deliver to the State certificates of insurance evidencing renewals thereof. At any time during the term of this contract, the State may request in writing, and the Bank shall thereupon within 10 days supply to the State, evidence satisfactory to the State of compliance with the provisions of this section. 13. Authority/ Representatives /Notice With respect to the representative of the State, such individual shall have the authority to inspect and reject services, approve invoices for payment, and act otherwise for the State, except with respect to the execution of formal contract amendments to or termination of this contract. For the purpose of this contract, the individuals identified below are hereby-designated representatives of the respective parties. All notices required to be given by the parties hereunder shall be hand delivered or sent by certified or registered mail to the individuals at the addresses set forth below. Either party may from time to time designate in writing substitute addresses or persons to whom such notices shall be sent. FOR THE STATE: Name Cash Manager Address Treasury Department 140 State Capitol, Denver, CO 80203 Telephone: 303-866-2441 Email: doug.windes@state.co.us FOR THE BANK: Name Susan Sutton Title AVP Merchant Services Address TX9-329-11-01 515 Congress Avenue, Austin, TX 78701 Telephone: 512-397-2241 Email: susan.sutton@bankamerica.com Page 6 of 43 BA Merchant Services LLC is registered with the Colorado Secretary of State to do business in the State. Its registration number is 20001249076. 14. Assignment and Successors Except as expressly provided in this Contract, the Bank agrees not to assign rights or delegate duties under this contract or subcontract any part of the performance required under this contract without the express, written consent of the State which shall not be unreasonably withheld or which is not already identified in the exhibits hereto. Such consent may include, at the State's sole discretion: A. The execution by the State, the Bank and the Assignee of a Novation Agreement in a form prescribed by the State, which Novation Agreement will become effective upon State approval or, B. Verification by the State of the assignation. Except as herein otherwise provided, this contract shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. This provision shall not be construed to prohibit assignments of the right to payment to the extent permitted by CRS 4-9-318,provided that written notice of assignment adequate to identify the rights assigned is received by the controller for Treasury. Such assignment shall not be deemed valid until receipt by such controller -- as distinguished from the State Controller -- at the address as stated in paragraph 13. The Bank assumes the risk that such written notice of assignment is received by the controller for the institution involved. 15. Changes By a written order, at any time, and without notice to any surety, the State may, subject to all appropriate adjustments, make reasonable changes within the general scope of work. If any such change order increases or decreases the Bank's cost of, or the time required for, performance of any part of the work under this contract, an adjustment shall be made and the contract modified in writing accordingly. Any adjustment in contract price made pursuant to this clause shall be determined in accordance with the Price Adjustment Clause of this contract. Failure of the parties to agree to an adjustment shall not excuse the Bank from proceeding with the contract as changed, provided that the State promptly and duly makes such provisional adjustments in payment or time for performance as may be reasonable. By proceeding with the work, the Bank shall not be deemed to have prejudiced any claim for additional compensation, or an extension of the time for completion. 16. Price Adjustments Any adjustment in contract price shall be made by mutual written agreement of the parties. 17. Force Majeure Neither the Bank nor the State shall be liable to the other for any delay in, or failure of performance of, any covenant or promise contained in this contract, nor shall any delay or failure constitute default or give rise to any liability for damages if, and only to the extent that, such delay or failure is caused by "force majeure". Force majeure means acts of God; acts of the public enemy; acts of the State and any governmental entity in its sovereign or contractual Page 7 of 43 capacity; fires; floods; epidemics; quarantine restrictions; strikes or other labor disputes; freight embargoes; or unusually severe weather. 18. Third Party Beneficiaries It is expressly understood and agreed that the enforcement of the terms and conditions of this contract and all rights of action relating to such enforcement, shall be strictly reserved to the State and the Bank. Nothing contained in this contract shall give or allow any claim or right of action whatsoever by any other third person. It is the express intention of the State and Bank that any such person or entity, other than the State or Bank, receiving services or benefits under this contract shall be deemed an incidental beneficiary only. 19. Governmental Immunity Notwithstanding anything herein to the contrary, no term or condition of this contract shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protection, or other provisions of the "Colorado Governmental Immunity Act", CRS 24-10-101, et seq., as now or hereafter amended. The parties understand and agree that the liability of the State for claims for injuries to persons or property arising out of negligence of the State of Colorado, its departments, institutions, agencies, boards, officials and employees is controlled and limited by the provisions of CRS 24-10-101, et seq., as now or hereafter amended and the risk management statutes, CRS 24-30-1501, et seq., as now or hereafter amended. Any liability of the State created under any other provision of this contract, whether or not incorporated herein by reference, shall be controlled by, limited to, and otherwise modified so as to conform to the above-cited laws. 20. Severability To the extent that this contract may be executed and performance of the obligations of the parties may be accomplished within the intent of this contract, the terms of this contract are severable, and should any term or provision hereof be declared invalid or become inoperative for any reason, such invalidity or failure shall not affect the validity of any other term or provision hereof. 21. Waiver The waiver of any breach of a term, provision, or requirement of this contract shall not be construed or deemed as waiver of any subsequent breach of such term, provision, or requirement, or of any other term, provision, or requirement. 22. Integration This contract along with its Colorado Special Provisions, the Fee-Proposal-Request; the service proposals from Bank of America Merchant Services Division, and various current and future merchant application documents and operating procedures attached hereto as Exhibits 2-4 is intended as the complete integration of all agreements, covenants, and understandings between the parties. No prior or contemporaneous addition, deletion, or other amendment hereto shall have any force or affect whatsoever, unless embodied herein in writing. No subsequent novation, renewal, addition, deletion, or other amendment hereto shall have any force or effect unless embodied in a writing executed and approved pursuant to the State Fiscal Rules. Page 8 of 43 23. Survival of Certain Contract Terms Notwithstanding anything herein to the contrary, the parties understand and agree that all terms and conditions of this contract and the exhibits and attachments hereto which may require continued performance, compliance, or effect beyond the termination date of this contract shall survive such termination date and shall be enforceable by the State as provided herein in the event of such failure to perform or comply by the Bank. 24. Modification and Amendment This contract is subject to such modifications as may be required by changes in federal or State law, or their implementing regulations. Any such required modification shall automatically be incorporated into and be part of this contract on the effective date of such change as if fully set forth herein. Except as provided above, no modification of this contract shall be effective unless agreed to in writing by both parties in an amendment to this contract that is properly executed and approved in accordance with applicable law. 25. Confidentiality of Records The Bank acknowledges that it may come into contact with confidential information contained in the records or files of the State in connection with this contract or in connection with the performance of its obligations under this contract. The Bank shall keep such records and information confidential and shall comply with all laws and regulations concerning the confidentiality of such records to the same extent as such laws and regulations apply to the State. The Bank shall notify its employees that they are subject to the confidentiality requirements as set forth above, and shall provide each employee with a written explanation of the confidentiality requirements before the employee is permitted access to confidential data. The Bath shall provide and maintain a secure environment that ensures confidentiality. The confidentiality of all information will be respected, and no confidential information shall be distributed or sold to any third party nor used by the Bank or the Bank's assignees and/or subcontractors in any way except as authorized by this contract. Confidential information shall not be retained in any files or otherwise by the Bank beyond the term of the contract. Disclosure of such information may be cause for legal action against the Bank. Defense of any such action shall be the sole responsibility of the Bank. The Bank shall notify the State of any breach in the security and confidentiality of consumer information held by the Bank in connection with the services performed under this Contract. The Bank shall notify the end user of any potential compromise in the security of their credit card or personal identification information and will educate such end users on how to protect their credit and identifying information, in accordance with applicable law. 26. Applicable Law The Bank agrees to strictly adhere to and comply with all applicable federal, state and local laws, statutes, regulations, and executive orders, as they currently exist and may hereafter be amended, which are incorporated herein by this reference as terms and conditions of this contract. 27. Licenses, Permits, and Responsibilities The Bank certifies that, at the time of entering into this contract, it has currently in effect all necessary licenses, certifications, approvals, insurance, permits, etc. required to properly perform the services and/or deliver the goods covered by this contract. The Bank warrants that it will Page 9 of 43 maintain all necessary licenses, certifications, approvals, insurance, permits, etc. required to properly perform this contract, without reimbursement by the State or other adjustment in contract price. Additionally, all employees of the Bank performing services under this contract shall hold the required licenses or certification, if any, to perform their responsibilities. The Bank further certifies that, if it is a foreign corporation or other entity, it currently has obtained and shall maintain any applicable certificate of authority to do business in the State of Colorado and has designated a registered agent in Colorado to accept service of process. Any revocation, withdrawal or non-renewable of necessary licenses, certifications, approvals, insurance, permits, etc. required for the Bank to properly perform this contract shall be grounds for termination of this contract by the State for default. 28. Intellectual Property Indemnification The Bank shall indemnify, hold harmless and defend, at the Bank's expense, the State (including its employees and agents), against any and all loss, cost, expense, or liability (including but not limited to attorney fees, including court costs and other legal expenses, and damages) arising out of any claim that a product or service provided under this contract, or its use, infringes a patent, copyright, trademark, trade secret or other intellectual property right. The Bank's obligation hereunder shall not extend to any combination of the product or service with any other product, system or method, unless: A. The product, system or method is: 1) provided by the Bank or the Bank's subsidiaries or affiliates; 2) specified by the Bank to work with the product or service; or 3) reasonably required, in order to use the product or service in its intended manner, and the infringement could not have been avoided by substituting another reasonably available product, system or method capable of performing the same function, or; B. It would be reasonably expected to use the product or service in combination with such product, system or method. The State shall notify the Bank within a reasonable time after receiving notice of a claim. Provided that the Bank promptly and reasonably investigates and defends any such claim, the Bank shall have control over the defense and settlement thereof; provided, however, that any such settlement shall be for money damages only unless the State otherwise consents in writing. The State shall furnish, at the Bank's reasonable request and expense, information and assistance necessary for such defense. In the event the Bank fails to vigorously pursue the defense and/or settlement of such claim, the State may assume the defense and settlement thereof and the Bank shall be liable for all costs and expenses incurred by the State in the pursuit thereof. In the event of such a claim, and if (1) the product or service is held to be infringing; (2) the Bank reasonably believes the product or service will be held to infringe, or; (3) where the Bank's use is restricted as a result of a claim of infringement then, the Bank shall at its expense either obtain the right for the State to continue using the product or service or replace or modify the product or service to be non-infringing and of equivalent functionality. If none of the alternatives is reasonably possible, the Bank shall refund a pro-rata portion of the amounts paid hereunder(based on the expected life of the product) Page 10 of 43 and reimburse the State for all reasonable expenses for removal and replacement of the product or service. 29. Litigation Reporting The Bank shall promptly notify the State when the Bank learns of any actual litigation in which it is a party defendant that involves services provided under this contract. The Bank shall, within five days after being served with a summons, complaint, or other pleading in a case and which has been filed in any federal or state court or administrative agency, shall deliver copies of such document to the representative designated in the "Notices" section of this contract. Notification requirements pursuant to this section also apply to any current and/or pending litigation. 30. Venue The parties agree that exclusive venue for any action related to performance of this contract shall be in the City and County of Denver, Colorado. 31. Audit, Inspection of Records, and Monitoring The Bank shall permit the State, federal government, or any other duly authorized agent of a governmental agency to audit, inspect, examine, excerpt, copy and/or transcribe the Bank's records related to this contract during its term and for a period of three years following termination of this contract or final payment hereunder, whichever is later, to assure compliance with the terms hereof, or to evaluate the Bank's performance hereunder. The Bank shall also permit these same described entities to monitor all activities conducted by the Bank pursuant to the terms of this contract. As the monitoring agency may in its sole discretion deem necessary or appropriate, such monitoring may consist of internal evaluation procedures, examination of program data, special analyses, on-site check, or any other reasonable procedure performed at reasonable times. 32. Cooperation of the Parties The Bank and the State agree to cooperate fully, to work in good faith, and to mutually assist each other in the performance of this contract. In connection herewith, the parties shall meet to resolve problems associated with this contract. Neither party will unreasonably withhold its approval of any act or request of the other to which the party's approval is necessary or desirable. 33. Tax Exempt Status The Bank recognizes and acknowledges that the State is not liable for any sales, use, excise, property or other taxes imposed by any federal, state or local government tax authority. The State is also not liable for any franchise or income taxes of the Bank. No taxes of any kind shall be charged to the State. 34. Warranties The Bank warrants that all goods furnished under this contract shall be new or in good working order, free from defects in materials or workmanship, installed properly and in accordance with manufacturers recommendations or other industry standards. The Bank warrants that the software used to perform the requirements set forth in this contract are merchantable and serviceable and are free of defects for the duration of this contract. The Bank shall replace defective goods at its own expense. The Bank expressly warrants and guarantees complete performance of the work in a manner acceptable to the State. Page 11 of 43 35. Prime Contractor and Subcontractors The Bank will assume ALL responsibility for the delivery, installation, and quality of the goods and/or services provided by this contract, regardless of whether or not the Bank uses subcontractors. The Bank will hold each and every one of its subcontractors, independent contractors and subsidiaries to the same standards to which the Bank in held pursuant to this Contract. The Bank shall be the sole point of contact with the State with regard to all matters covered by this contract. The State shall not initiate or maintain contact with any subcontractor unless such contact becomes necessary to mitigate the State's damage in the event the Bank is in default or breach of any term or obligation of this contract. Any subcontractor providing services to the State under this Agreement shall have in effect the same level of insurance coverages as the prime contractor. Page 12 of 43 SPECIAL PROVISIONS 1. CONTROLLER'S APPROVAL. CRS 24-30-202 (1) This contract shall not be deemed valid until it has been approved by the Controller of the State of Colorado or such assistant as he may designate. 2. FUND AVAILABILITY. CRS 24-30-202 (5.5) Financial obligations of the State of Colorado payable after the current fiscal year are contingent upon funds for that purpose being appropriated,budgeted,and otherwise made available. 3. INDEMNIFICATION. The Contractor shall indemnify, save, and hold harmless the State,its employees and agents,against any and all claims,damages, liability and court awards including costs,expenses,and attorney fees incurred as a result of any act or omission by the Contractor,or its employees, agents, subcontractors, or assignees pursuant to the terms of this contract. 4. INDEPENDENT CONTRACTOR. 4 CCR 801-2 The contractor shall perform its duties hereunder as an independent contractor and not as an employee. Neither the contractor nor any agent or employee of the contractor shall be or shall be deemed to be an agent or employee of the state. Contractor shall pay when due all required employment taxes and income tax and local head tax on any monies paid by the state pursuant to this contract. Contractor acknowledges that the contractor and its employees are not entitled to unemployment insurance benefits unless the contractor or third party provides such coverage and that the state does not pay for or otherwise provide such coverage. Contractor shall have no authorization,express or implied, to bind the state to any agreements, liability, or understanding except as expressly set forth herein. Contractor shall provide and keep in force workers'compensation(and provide proof of such insurance when requested by the state)and unemployment compensation insurance in the amounts required by law,and shall be solely responsible for the acts of the contractor, its employees and agents. 5. NON-DISCRIMINATION. The contractor agrees to comply with the letter and the spirit of all applicable state and federal laws respecting discrimination and unfair employment practices. 6. CHOICE OF LAW. The laws of the State of Colorado and rules and regulations issued pursuant thereto shall be applied in the interpretation, execution, and enforcement of this contract. Any provision of this contract, whether or not incorporated herein by reference, which provides for arbitration by any extra-judicial body or person or which is otherwise in conflict with said laws,rules, and regulations shall be considered null and void. Nothing contained in any provision incorporated herein by reference which purports to negate this or any other special provision in whole or in part shall be valid or enforceable or available in any action at law whether by way of complaint, defense, or otherwise. Any provision rendered null and void by the operation of this provision will not invalidate the remainder of this contract to the extent that the contract is capable of execution. At all times during the performance of this contract,the Contractor shall strictly adhere to all applicable federal and State laws,rules,and regulations that have been or may hereafter be established. 7. VENDOR OFFSET. CRS 24-30-202 (1) & CRS 24-30-202.4 Pursuant to CRS 24-30-202.4(as amended), the State Controller may withhold debts owed to State agencies under the vendor offset intercept system for: (a)unpaid child support debt or child support arrearages; (b)unpaid balance of tax,accrued interest, or other charges specified in Article 21,Title 39,CRS; (c)unpaid loans due to the Student Loan Division of the Department of Higher Education; (d)owed amounts required to be paid to the Unemployment Compensation Fund; and(e)other unpaid debts owing to the State or any agency thereof, the amount of which is found to be owing as a result of final agency determination or reduced to judgment as certified by the controller. 8. SOFTWARE PIRACY PROHIBITION Governor's Executive Order D 002 00 No State or other public funds payable under this Contract shall be used for the acquisition,operation, or maintenance of computer software in violation of United States copyright laws or applicable licensing restrictions. The Contractor hereby certifies that,for the term of this Contract and any extensions,the Contractor has in place appropriate systems and controls to prevent such improper use of public funds. If the State determines that the Contractor is in violation of this paragraph,the State may exercise any remedy available at law or equity or under this Contract, including, without limitation, immediate termination of the Contract and any remedy consistent with United States copyright laws or applicable licensing restrictions. 9. EMPLOYEE FINANCIAL INTEREST. CRS 24-18-201 & CRS 24-50-507 The signatories aver that to their knowledge,no employee of the State of Colorado has any personal or beneficial interest whatsoever in the service or property described herein. Page 14 of 43 THE PARTIES HERETO HAVE EXECUTED THIS CONTRACT CONTRACTOR: STATE OF COLORADO: BILL OW ENS GOVERNOR Bank of America, N.A. /s/ By Mike Coffman, State Treasurer BA Merchant Services, LLC Legal Name of Contracting Entity Social Security Number or FEIN LEGAL REVIEW: Signature of Authorized Officer Attorney General, John W. Suthers BY Print Name&Title of Authorized Officer CORPORATIONS: (A corporate attestation is required.) Attest (Seal) By (Corporate Secretary or Equivalent,or Town/City/County Clerk) (Place corporate seal here,if available) ALL CONTRACTS MUST BE APPROVED BY THE STATE CONTROLLER CRS 24-30-202 requires that the State Controller approve all state contracts. This contract is not valid until the State Controller, or such assistant as he may delegate, has signed it. The contractor is not authorized to begin performance until the contract is signed and dated below. If performance begins prior to the date below, the State of Colorado may not be obligated to pay for the goods and/or services provided. STATE CONTROLLER: Leslie M. Shenefelt By Date Page 15 of 43 Exhibit 2.0 CONTRACT FOR ALTERNATIVE FORMS OF PAYMENT SERVICES May 1, 2006 TRANSACTION FEE SCHEDULE InterChange RateAs set by card associations see attached MasterCard and Visa Interchange Rate Dues/Assessments—Mastercard 0.095% of the transaction Dues/Assessments—Visa 0.0925% of the transaction Bank's processing fee $ .05 Non-bankcard transaction fee $ .05 Setup Fee per State Agency $25.00 Chargeback Fee $8.00 Report Fee for all locations per month $9.95 Examples of transaction fees are presented in Exhibit 2.2 Proposal Tables 1 — 11. EQUIPMENT FEE SCHEDULE Model Purchase Rental Lease 24-mo 36-mo 48-mo Terminals Hypercom T7Plus $305.00 $21.95 $15.35 $11.25 $8.75 Hypercom T7P Impact $400.00 $25.00 $17.60 $12.90 $10.05 Hypercom T7P Thermal $390.00 $25.00 $17.55 $12.90 $10.00 Hypercom T77 Impact $450.00 $30.00 $23.00 $16.85 $13.10 Nurit 2085 $300.00 $25.00 $15.00 $11.00 $8.55 Omni 3200 $375.00 $25.00 $17.05 $12.50 $9.70 Verifone Tranz 380 $375.00 $20.95 N/A N/A N/A Omni 3750 Dual Comm $425.00 $35.95 N/A N/A N/A Printers Verifone 900 (used w/Tranz 380) $225.00 $14.95 $10.70 $7.85 $6.10 Pin Pads Hypercom S9 $125.00 $8.95 $5.95 $4.35 $3.40 Verifone 1000SE $99.00 $7.95 $5.10 $3.75 $2.90 Standard Flatbed $30.00 N/A N/A N/A N/A Imprinter $250.00 N/A N/A N/A N/A One-time Training Fee $100 Monthly Help Desk- $ 15 CyberSource Activation/Licensing Fee * $150 * Monthly Fee- $ 19.95 END OF FEE SCHEDULE Page 16 of 43 Exhibit 2.1 Proposal BankcfAmerica higherStandards December 6, 2005 Mr. Doug Windes Cash Manager State of Colorado Treasury Department- Room 10 1525 Sherman Street Denver, Colorado 80203 RE: Fee Proposal Request for Alternative Forms of Payment Services Dear Mr. Windes: Thank you for the opportunity to respond to the Fee Proposal Request for Alternative Forms of Payment Services. On behalf of Bank of America, we respectfully submit the enclosed response for these services. We are dedicated to providing you with exemplary financial services and we are confident you will find our response competitively priced, while providing The State with the most advanced services available at the best value. Bank of America is fully qualified to successfully deliver an optimal solution to The State of Colorado. Bank of America's approach is conceived of a strong alliance and partnership. We are committed to meet with The State on a regular basis to discuss new technology, services and products. Our job is to bring solutions to your issues, to provide comprehensive support and technical assistance, and to harness every appropriate resource that our global organization has to offer, as you need it. Our consultative approach brings each client the advantages of Bank of America's industry expertise, our grounded understanding of national and regional markets, and our global leadership in merchant services and technology. Bank of America would be willing and eager to enter into a contract with The State of Colorado. We would also be willing to enter into a contract with the portal integrator, Colorado Interactive, but it is subject to meeting all rules and regulations required by Visa and MasterCard guidelines. We look forward to the great privilege of serving you with the best value. Again, we appreciate this opportunity to present our proposal and look forward to discussing it with you. Respectfully submitted, Susan Sutton Assistant Vice President BA Merchant Services Page 17 of 43 Banko#AmericatkgherStandards Company Bank of America's national headquarters are based in Charlotte,NC, where it was incorporated. The Merchant Services Division manages Bank of America's merchant bankcard program. The division consists of: 1. Nationwide staff of over 2,000 2. Processing and customer service center in San Francisco,Louisville and Spokane. 3. Regional support offices in San Francisco, Sacramento,Los Angeles, Austin, Orange County, San Diego, Spokane, Phoenix, Dallas, Portland, Houston, Albuquerque,Miami,Charlotte, Las Vegas and several other major cities. Bank of America serves individuals, small businesses, large companies,public and private sector institutions and nonprofits through four major lines of business. Bank of America is the nation's largest consumer bank and the first to have a truly national retail franchise, with full-service banking in 29 states and the District of Columbia. Bank of America is also the nation's largest small business bank and the number one financial institution providing domestic and global cash management services. In addition, Bank of America operates one of the largest private banks in the United States,the third-largest bank- owned brokerage and one of the world's largest wealth management businesses. A leading financial partner for corporate America, Bank of America has captured the largest share of middle-market and large corporate relationships of any U.S.bank, including more than 95%of the Fortune 500. In 2004,Bank of America was the world's second most profitable banking institution and the world's fifth most profitable company. Bank of America is second largest merchant processor in the country. Our bankcard portfolio includes: • Over 460,000 Active Merchant Locations • Over 5 Billion Transactions Processed Annually • Over$250 Billion in Sales Processed Annually • Bank of America handles 1 out of every 5 Visa/MasterCard transaction processed nationally. Bank of America Merchant Services uses Vital Processing Services for authorization and capture of card payment transactions,which is the core product/service of our business.A division of Vital Processing Services includes Total Systems,which is used for processing payments and the merchant information management system of accounting. It is through this service that ACH entries for card transaction deposits are generated and transmitted to the relevant merchant depository accounts. Vital Processing Services, LLC(VITAL and/or the Company),a recognized leader in technology-based commerce enabling services, was established in 1996 as a merchant processing joint venture between Visa USA and TSYS. This venture combined the Point-of-Sale capabilities of Visa's Merchant Bank Services with portfolio management reporting and accounting strengths of TSYS. VITAL has emerged as the leading independent,third party processor for the merchant acquiring industry. Vital is headquartered is Tempe,Arizona,with operations in Columbus, Georgia. Vital employs approximately 800 associates. The address for Vital Processing Services headquarters is: Page 18 of 43 Vital Processing Services 8320 S. Hardy Drive Tempe,Arizona 85284 Phone: 480-333-7600 Fax: 480-333-7015 www.vitalps.com Bank of America Merchant Services routes transactions through the following credit card networks: Visa, MasterCard,Discover Card/Novus, American Express Card,JCB,Carte Blanche,Diners Club and Electronic Checks. The following Debit Card Networks are also available: Interlink, Star,Explore, EPS BuyPass gateway Maestro,PulsePay,Accel, Cash Station, MAC,NYCE,Honor,Most,Tyme,BankMate,MagicLine,and Armed Forces Financial Network(AFFN). BA Merchant Services currently supports a wide variety of POS terminals including Verifone, Hypercom, DataCard, and Lipman. These standalone units are available for purchase rental and lease thru Bank of America. Bank of America's proposal includes no programming fees for all current and future units. Bank of America is also excited to announce a new stand-alone terminal offering which will allow the terminal to operate in a dial-up and/or DSL/Cable modem connectivity. This product is known as the Verifone Omni 3750. It provides the merchant with high speed processing, eliminates dedicated phone lines, allows the merchant to connect multiple terminals to single IP ports, and provides exceptional security on transactions due to the use of secure socket layer encryption (SSL). Customer Service and Reporting Our Customer Service is all located in-house. Each Customer Service Representative has a minimum of 4 weeks of initial training and ongoing training thereafter. They are then teamed up with another representative as their back-up,with support available 24/7,365 days a year. Our trouble call codes are logged for merchants on our Tandem system. They are broken down for Terminal Support and Customer Service. There are numerous reports and ad hoc reports that can be requested through our data center if needed. We most commonly use the report by merchant,by store number and by trouble call code.All of our ACD reports come through a purchased reporting system in conjunction with a Rolm system. We receive hourly, daily, weekly, and monthly call volumes with most any kind of information needed. Our Customer Service department is made up of: • 120 Customer Service Terminal Support Representatives • 4 Customer Service Analysts • 10 Customer Service Supervisors • 2 Customer Service Trainers • 2 Customer Service Managers Page 19 of 43 BankotAmerica+ tlig her Standards For more information on customer service,contact: G.Whitney Wilson Whitney Wilson is Senior Vice President of the Service Call Center. Whitney has been with BA Merchant Services for 14 years and has held several leadership positions in Service and Account Management. In addition,an Account Manager will be assigned to your account to handle all escalated issues. This representative is available each day to answer any of your questions and to meet the special needs of The State of Colorado. In addition,our Account Mangers schedule regular review meetings with clients to meet the needs of each account. Following implementation review, sessions are typically conducted every six to twelve months. Depending on the individual client needs,they often include interchange and chargeback analysis and review, as well as processing issues and a review of service satisfaction. The Account Management team will also contact you with important or exciting changes in a timely fashion to inform you on important issues BA Merchant Services is committed to make every effort to assist in the management of your payment acceptance costs. Your Account Manager,working in unison with our Risk,Exception and Interchange processing departments, will periodically review your payment acceptance process for improvement opportunities. The results of this review will be reported to you along with specific recommendations relative to issues identified. Your account manager will work with you to implement any appropriate changes. BA Merchant Services has a web-based reporting to streamline the entire reporting and reporting management function called ACCESS. This allows users to easily locate on line the specific information they require and efficiently distribute the large amount of data resident in the current reports. ' . ACCESS does provide the ability to export information into Excel or other spreadsheet formats. Our online reporting also has the ability for billing reporting and exception item handling. ;lag Reporting is categorized for ease of use with operational areas; activity detail,deposit& r - - fee information,exception items(chargeback&retrieval reporting), interchange and I. management reports. Features include: • Merchant Reporting-provides an extensive list of reports available. d r; • Report Search-a robust search and query capability allowing The State of Colorado to easily find critical data such as card numbers,amounts and other critical c transaction data information. a • Retrieval/chargeback Information—another tool, in addition to Merchant Explorer,to review chargeback data. The State of Colorado has the ability to compare their chargeback statistics against other market segment merchants. • "My Reports"—allows a user to select their most frequently reviewed reports and have those available on each screen within the website for'one touch' access to data. • BA Merchant Services Updates—provides our merchants with quick access to critical information exchanges between our companies. Updates on many BAMS initiatives will be provided. Reports are guaranteed to be available by 8:00 a.m. via the web. We also offer e-mail and fax. Our reporting system allows you to export all reports, at any level of hierarchy. This functionality allows the Page 20 of 43 merchant the flexibility of creating their own unique report. Daily reports are retained for 70 days and monthly reports are retained for 6 months. We can provide daily,weekly,monthly or fiscal reporting in raw data formats allowing you to download this information into excel or a comma delimited format to create report queries. The information provided by our raw data files is limitless. Our formats provide information such as transaction level detail on chargebacks,rejects,adjustments,etc. This data is often fed directly into back office systems,such as Trintech,Chesapeake,or others for customization. Graphical Data Our latest release of ACCESS provides various reports in a graphical format. The following is a list of predefined graphical reports: ' Cost Component Statistics Report(unbundled&bundled)-report summarizes for merchants the cost components of doing business with BA Merchant Services. This tool can be an invaluable product for the treasury department. IC Qualifications Level Statistics Report-a tool that reports interchange levels for The State. IC Comparison Report-report reflects your Interchange levels on a year-to-year basis. Chargeback Percentage Report-Statistical report reflecting the top 5 chargeback reason codes for The State. • Chargeback Rate Industry Comparison-Report depicting your chargeback volume comparison to similar market segments. Great tool to compare yourself among other similar merchants in your industry. • Annual Volume Comparison Report-Report summarizes statistical information including number of credit and debit transaction on a year-to-year or year-to-date frequency. Management tool for you to review their transaction volumes. • Annual IC Qualification Review-Analysis tool to reflect Interchange levels as qualified The State of Colorado. • IC Qualification Market Segment Comparison-Report reflects interchange volume comparison to other merchants based on MCC. Another tool allowing The State to compare against other similar merchants. All ACCESS web reporting may be downloaded and created in bar,line or three-dimensional graphical tool reports. 3ir.•us..tl..w.n>.....t..... n "' Tr, rte... .y:.. --- dr t7 , - . . N.". "e_ ../� NMI. .M wawe a r • LIkd! LW w '�.t a:F+ ;yW� w.... 4 �Au....... fir. 0 �N4150,, ya .IAMr ..r , ;+rNti .9.M.: mil'.:• • ..Mr. J4al Nit 0 40. iri r'"'• ..... �w rw "a :::.• Wan ; ::1 Pillill 1 :.,:. •»«..-.•• E 1 1 F 3llF* F " - Jr' tiI}y' 1 frF4.i N4••3 jN.wN An .:.i 1xrri`�"Ay"UE".1 4"M+ * 5+�f 1;i₹' ( I Yt',i .Nx,n��t. tt.4'��'Wk�tt'.xr,sy !'�I.�t'�J"r f • t'`� '• �"{ ,:r tY ft 1� t 3 'r E . . z E t JS. itl i ? Page 21 of 43 Historical Data BA Merchant Services stores data to include reports for a time period of 13 months at the detail level and 25 months at the summary level. All reports are readily available to the merchant. Those merchants who deploy our ACCESS products have these reports readily available through their desktops without any intervention by BA Merchant Services. An additional capability of the web site allows the customer to search across reports using our Report Search function. Topic indexes are utilized to complete report searches spanning a period of the previous 190 days. Based on a Topic Index of Account Number,Batch File Number,Deposit Dollar Amount,or Merchant Date,the customer may search across all reports to query specific data or even determine the lifecycle of a transaction. Hierarchy Reportins Capabilities We provide reporting at various hierarchy levels: Holding Company,Corporate,Region,District,and Location. State and Agency information may be provided in an aggregate with the capability to"drill down"to State only and Agency only. The drill down capabilities enables the user to view from the highest level to the location level. Access may be defined by report at the various levels of the hierarchy. This is accomplished through the Remote Administration feature on the web. A Remote Administrator at the customer's site will be identified. That administrator will be authorized to create new Customer User Ids, delete old Customer User Ids,reset passwords,authorized access to reports and remove access to reports. There is no limit to the number of users that may be set up. We provide this service at no cost to you. Transaction Ouery ACCESS reporting has a transaction query tool, which allows detailed search for any transaction processed within the system. Detailed information such authorization codes,amount,card type,transaction amount, etc. are provided in detailed layout. Sample Contract Please see Appendix for a sample of the Bank of America Agreement and a list of proposed changes to the State's sample contract. Page 22 of 43 BankofAnericae Washer Standards Fee Tables TABLE 1 Fees for American Express Card - Level 1 data captured from a consumer card Transaction value= $100.00 Transaction Type Interchange Dues/assessment Processing Other TOTAL Over-the Counter $ .05 $ .05 PIN enter debit card $ .05 $ .05 Off-line debit card $ .05 $ .05 Key pad entered $ .05 $ .05 (non-card swipe) Internet with $ .05 $ .05 CVV/CVS value NOTES AND COMMENTS American Express rate and availability of funds should be quoted and contracted directly with American Express. Bank of America will act as a"switch"to route transactions to American Express. Bank of America will charge a transaction fee of$ .05 to route the transaction to American Express. TABLE 2 Fees for Discover Card - Level 1 data captured from a consumer card Transaction value= $100.00 Transaction Type Interchange Dues/assessment Processing Other TOTAL Over-the Counter $ .05 $ .05 PIN enter debit card $ .05 $ .05 Off-line debit card $ .05 $ .05 Key pad entered $ .05 $ .05 (non-card swipe) Internet with $ .05 $ .05 CVV/CVS value NOTES AND COMMENTS Discover rate and availability of funds should be quoted and contracted directly with Discover. Bank of America will act as a"switch"to route transactions to Discover. Bank of America will charge a transaction fee of$ .05 to route the transaction to Discover. Page 23 of 43 Bank of America limber Standards TABLE 3 Fees for Master Card - Level 1 data captured from a consumer card Transaction value = $100.00 Transaction Type Interchange Dues/assessment Processing Other TOTAL Over-the Counter 1.55% + $ .095% $ .05 0 1.795% .10 PIN enter debit card 0 0 $ .59 0 $ .59 Off-line debit card 1.55% + $ .095% $ .05 0 1.795% .10 Key pad entered 1.55% + $ .095% $ .05 0 1.795% (non-card swipe) .10 Internet with 1.55% + $ .095% $ .05 0 1.795% CVV/CVS value .10 NOTES AND COMMENTS If Cybersource is used for processing of the Internet transactions,an additional$ .10 per authorization will be added to the cost of processing. For any customer using their debit card as an on-line debit card(in person, using a pin pad),your fee would simply be a flat 59 cents without any additional association or transaction fee. Bank of America offers the benefit of pricing online debit transactions at a flat per transaction rate. The benefit of this pricing is that it takes the merchant out of the need to monitor that each transaction is being routed to the lowest possible regional network. Many consumers have multiple debit networks on a debit card. For example,a debit card may have a Pulse and an Interlink"bug"on the card which means the transaction could be routed to either network. Interlink is a higher cost network. Regional network fees+transaction fees pricing requires that the merchant monitor that the transaction is routed to the lower cost regional network. Flat rate fee pricing relieves the merchant from that responsibility. The total above is based on converting interchange plus dues/assessments plus processing fee into a bundled rate for comparison cost analysis. Page 24 of 43 Ban kof America IigherStandards TABLE 4 All fees for Visa Card - Level 1 data captured from a consumer card Transaction value = $100.00 Transaction Type Interchange Dues/assessment Processing Other TOTAL Over-the Counter 1.43% + $ .05 .0925% $ .05 0 1.6225% PIN enter debit card 0 1.6225% Off-line debit card 1.43% + $ .05 .0925% $ .05 0 1.6225% Key pad entered 1.43% + $ .05 .0925% $ .05 0 1.6225% (non-card swipe) Internet with 1.43% + $ .05 .0925% $ .05 0 1.6225% CVV/CVS value NOTES AND COMMENTS If Cybersource is used for processing of the Internet transactions,an additional$ .10 per authorization will be added to the cost of processing. For any customer using their debit card as an on-line debit card(in person,using a pin pad), your fee would simply be a flat 59 cents without any additional association or transaction fee. Bank of America offers the benefit of pricing online debit transactions at a flat per transaction rate. The benefit of this pricing is that it takes the merchant out of the need to monitor that each transaction is being routed to the lowest possible regional network. Many consumers have multiple debit networks on a debit card. For example,a debit card may have a Pulse and an Interlink"bug"on the card which means the transaction could be routed to either network. Interlink is a higher cost network. Regional network fees+ transaction fees pricing requires that the merchant monitor that the transaction is routed to the lower cost regional network. Flat rate fee pricing relieves the merchant from that responsibility. The total above is based on converting interchange plus dues/assessments plus processing fee into a bundled rate for comparison cost analysis. Page 25 of 43 AGENCY TRANSACTIONS (Assume no charge backs or any irregularities and settlement on the same day.) Table 5 All Fees—Master Card (Merit III) Department of Health & Environment A laboratory radiation equipment technician walks into the radiation division of the Department of Public Health and Environment to renew her license on Monday, November 7 2005. The amount is $100.00. She presents a Master Card (Merit III) for • payment. Please list below the transaction fees which will be incurred by the division. Amount Interchange fee Dues/assessment fee Processing fee TOTAL $100.00 1.55% $ .10 .095% $ 0 0% $ .05 1.645%+ $ .15 Other associated costs (please list) 1. 2. $ Etc $ Total cost of transaction $_1.75 Amount deposited in the state's bank account $_100_ Date of deposit 11/8/05 if Bank of America DDA 11/9/05 if non-Bank of America DDA Fixed costs (please list) Frequency 1. Maintenance fee $ 0_ 2. Report fee Monthly for all $ 9.95 merchant#s 3. Setup Fee One-time $25 Please include any notes or explanations to this transaction below. This transaction should qualify for MasterCard Public Sector interchange instead of Merit III. Public Sector requirements include MCC codes for government services Not elsewhere classified,MasterCard Consumer Card,Authorization must equal Transaction amount and mag stripe not required. Page 26 of 43 Banka#Americralf herStandards Table 6 All Fees —Master Card (Merit I) Department of Local Affairs A homeowner calls the board of assessment appeals in the Department of Local Affairs to obtain a page from a transcript on Wednesday, November 9, 2005. The amount is $10.00. He presents a Master Card (Merit I) for payment. Please list below the transaction fees which will be incurred by the department. Amount Interchange fee Dues/assessment fee Processing fee TOTAL $10.00 1.55% + $ .10 .095% + $ 0 0% $ .05 1.645% + $ .15 Other associated costs (please list) 1. $ 2. $ Etc $ Total cost of transaction $_.31_ Amount deposited in the state's bank account $ 10_ Date of deposit 11/10/05 if Bank of America DDA 11/11/05 if non-Bank of America DDA Fixed costs (please list) Frequency 1. Maintenance fee $ 0 2. Report fee Monthly for all $_9.95 merchant #s 3. Setup Fee Monthly $ 25 Please include any notes or explanations to this transaction below. Again,this transaction will qualify for MasterCard's Public Sector interchange rate. Page 27 of 43 Ban kct America alligherStandards Table 7 All Fees - Visa Card (CPS/Retail) Department of Regulatory Agencies A dentist calls the professional license division of the Department of Regulatory Agencies to renew her license on Friday, November 4, 2005. The amount is $200.00. She presents a Visa Card (CPS/Retail) for payment. Please list below the transaction fees which will be incurred by the division. Amount Interchange fee Dues/assessment fee Processing fee TOTAL $200.00 1.43% + $ .05 .0925% + $ 0 0% $ .05 1.5225% + $ .10 Other associated costs (please list) 1. $ 2. $ Etc $ Total cost of transaction $_3.15 Amount deposited in the state's bank account $ 200_ Date of deposit 11/7/05 if Bank of America DDA 11/8/05 if non-Bank of America DDA Fixed costs (please list) Frequency 1. Maintenance fee $ 2. Report fee Monthly for all $ 9.95 merchant#s 3. Setup Fee One time $ 25 Please include any notes or explanations to this transaction below. This transaction will qualify for Visa's CPS Retail 2 interchange program which is a lower interchange rate than CPS Retail. Page 28 of 43 Bankaf AmericaalBgher Standards Table 8 All Fees—American Express Card Department of Regulatory Agencies An accountant telephones the professional license division of the Department of Regulatory Agencies to renew her license on Friday, November 4, 2005. The amount is $50.00. She uses an American Express Card for payment. Please list below the transaction fees which will be incurred by the division. Amount Interchange fee Dues/assessment fee Processing fee TOTAL $50.00 % $ % $ % $ .05 % $ .05 Other associated costs (please list) 1. $ 2. $ Etc $ Total cost of transaction $ .05 Amount deposited in the state's bank account $ Date of deposit / /05 Fixed costs (please list) Frequency 1. Maintenance fee $ 2. Report fee $ 3. Etc $ Please include any notes or explanations to this transaction below. Rate and availability of funds to be provided by American Express. Bank of America to act as switch for transaction. Page 29 of 43 BankofAmericar Higher Standards Table 9 All Fees—Discover Card Department of Regulatory Agencies An accountant telephones the professional license division of the Department of Regulatory Agencies to renew her license on Friday, November 4, 2005. The amount is $50.00. She uses a Discover Card for payment. Please list below the transaction fees which will be incurred by the division. Amount Interchange fee Dues/assessment fee Processing fee TOTAL $50.00 % $ % $ % $+.05 % $_.05 Other associated costs (please list) 1. $ 2. $ Etc $ Total cost of transaction $_.05_ Amount deposited in the state's bank account $ Date of deposit / /05 Fixed costs(please list) Frequency 1. Maintenance fee $ 2. Report fee $ 3. Etc $ Please include any notes or explanations to this transaction below. Rate and availability of funds to be provided by Discover. Bank of America to act as switch for transaction. Page 30 of 43 flankofAnerica�IIgher Standards Table 10 All Fees—Statewide Portal Visa Card (CPS E-Commerce Basic) Division of Motor Vehicles A citizen logs onto the Statewide Internet Portal to renew his driver's license and register his vehicle on Tuesday, November 8, 2005. The fee for the driver's license is $15 and the vehicle registration fees and taxes total $485. A Visa card is used to complete the transaction. Please list below the fees which will be incurred by the division. Amount Interchange fee Dues/assessment fee Processing fee TOTAL $500.00 1.85%+ $ .10 .0925% + $ 0 _0_% $ .05 1.9425% + $ .15 Other associated costs (please list) 1. $ 2. $ Etc $ Total cost of transaction $_9.86 Amount deposited in the state's bank account $ 500_ Date of deposit 11/9/05 if Bank of America DDA 11/10/05 if non-Bank of America DDA Fixed costs (please list) Frequency I. Maintenance fee $ 2. Report fee Monthly for all $ 9.95 merchant #s 3. Setup Fee $ 25_ Please include any notes or explanations to this transaction below. Page 31 of 43 BankafAwerica�ilglterStandards Table 11 All Fees - Statewide Portal Visa CPS: E-commerce Preferred Department of Revenue A citizen makes a quarterly payment of$10,000.00 through the Statewide Portal on his 2005 State income taxes on Wednesday, November 15, 2005, with a Visa Card. Please list below the fees which will be incurred by the department. Amount Interchange fee Dues/assessment fee Processing fee TOTAL $10,000.00 1.85% + $ .10 .0925% + $ 0 _0_% $ .05 1.9425% + $ .15 Other associated costs @lease list) 1. $ 2. $ Etc $ Total cost of transaction $ 194.40 Amount deposited in the state's bank account $_10,000 Date of deposit 11/16/05 if Bank of America DDA 11/17/05 if non-Bank of America DDA Fixed costs (please list) Frequency 1. Maintenance fee $ 2. Report fee Monthly for all $_9.95 merchant#s 3. Setup Fee $ 25 Please include any notes or explanations to this transaction below. Page 32 of 43 Ban katAmerica a BigherStandards Proposed Fees InterChange Rate+Dues/Assessments+$ .05 Non-bankcard transaction fee-$ .05 $25 Setup Fee per Agency $ 8 Chargeback Fee $9.95 Report Fee for All Locations • See Appendix for MasterCard/Visa Interchange Program rates • See Appendix for Equipment Costs Page 33 of 43 Exhibit 3 CONTRACT FOR ALTERNATIVE FORMS OF PAYMENT SERVICES May 1,2006 STATEMENT OF WORK This exhibit contains the following sections: • Statement of work • Memorandum of Understanding This document defines the organizational support and establishes guidelines for the Bank's commitment to implementation, account management, and customer service levels (dated January 24, 2006). STATEMENT OF WORK I. PROCESSING TRANSACTIONS The Bank of America Merchant Services (the Bank) routes credit card transactions through the following credit card networks: a. Visa e. JCB b. MasterCard f Carte Blanche c. Discover Card/Novus g. Diners Club and; d. American Express Card h. Electronic Checks. The Bank routes debit card transactions through the following debit card networks: a. Interlink b. Star c. Explore d. EPS BuyPass gateway Maestro e. PulsePay f. Accel g. Cash Station h. MAC i. NYCE,Honor j. Most k. Tyme 1. BankMate m. MagicLine,and; n. Armed Forces Financial Network (AFFN). Page 34 of 43 All transactions can be routed via stand-alone terminals and POS Partner. Some limitations may apply for online debit for some internet-based transactions. Settlement is provided with a single settlement option. The Bank currently supports a wide variety of POS terminals including Verifone, Hypercom, DataCard, and Lipman. These stand alone units are available for purchase or rental through The Bank. The Bank's proposal includes no programming fees for all current and future units. This Contract does not cover any internet credit or debit card transactions through the State Internet Portal Authority, which is governed by a separate contract with the Authority. POSPartner provides many advantages to the State. This product is at priced at $250 for the software, $15 per month for support, and a $100 one- time implementation fee. Key features of POSPartner include: a. Offers multiple connectivity options including dial-up, SSL, IP/Frame,and Dial IP. b. Supports all payment forms: consumer and business credit, online and offline debit, and scheduled /recurring payment. c. Operates as a stand-alone unit or processes in a local area network (LAN) or wide area network (WAN)environment to integrate all of a business' transaction activity at one location. d. Allows export and import of transactions of transaction data. e. Integrates easily into point-of-sale and order management business processes. f. Capability for storing customer information for repeat customers. g. 24/7 toll-free customer support and online resources. h. Supports purchase card level III. i. Supports discretionary data field j. Comprehensive reporting. The Bank shall accept and process for all Visa and MasterCard credit and debit (check cards) issued in the United States, as well as international debit and credit cards displaying the Visa or MasterCard hologram. The Bank supports processing on all major debit networks. Check Cards issued by Visa and MasterCard can be processed and offer the flexibility of being processed off-line just as a credit only card is processed, or On-line just as an ATM only card is processed. Off-line Check Card transactions offer the point-of-sale convenience of a credit card, but reduce the need to write checks or carry cash since there are more than 30 million merchants that accept these cards. When a check card is processed Off-line the cardholder is identified through their signature so there is no need for a pin pad or pin entry. Off-line Check Card transactions are processed through the same processing stream as credit cards and do not require the entering of a Personal Identification Number (PIN) through this stream. On-line Check Card transactions reduce the need to write and carry cash while providing the security of an ATM transaction. When a check card is processed On-line the cardholder is identified through their PIN so the POS device must have a PIN pad attached and the cardholder must be present to enter their Personal Identification Number. A debit only card (Debit/ATM card without a Visa or MasterCard hologram) requires the consumer enter a PIN in order to complete the transaction. State agencies desiring acceptance of on-line debit will require terminals to be equipped with appropriate PIN Pads. These networks do not allow their cards to be used to process PIN-less debit/ATM cards. The following Debit Card Networks are available: a. Interlink, Star b. Explore c. EPS BuyPass gateway Maestro d. PulsePay e. Accel f. Cash Station g. MAC h. NYCE i. Honor j. Most k. Tyme 1. BankMate m. MagicLine and; n. Armed Forces Financial Network(AFFN). The Bank offers the benefit of pricing online debit transactions at a flat per transaction rate. The benefit of this pricing is that it takes the State agency out of the need to monitor that each transaction is being routed to the lowest possible regional network. Many consumers have multiple debit networks on a debit card. For example, a debit card may have a Pulse and an Interlink "bug" on the card which means the transaction could be routed to either network. Interlink is a higher cost network. Regional network fees plus transaction fees pricing requires that the State agency monitor that the transaction is routed to the lower cost regional network. Flat rate fee pricing relieves the State agency from that responsibility II. AUTHORIZATION AND CAPTURE The Bank uses Vital Processing Services, LLC (VITAL) for authorization and capture of card payment transactions, which is the core product/service of the Bank's business. A division of Vital Processing Services includes Total Systems (TSYS), which is used for processing payments and the State agency information management system of accounting. It is through this service that ACH entries for card transaction deposits are generated and transmitted to the relevant State agency depository accounts. Vital Processing Services is a recognized leader in technology-based commerce enabling services, was established 1996 as a merchant processing joint venture between Visa USA and TSYS. This venture combined the Point-of-Sale capabilities of Visa's Merchant Bank Services with portfolio management reporting and accounting strengths of TSYS. VITAL has emerged as the leading independent, third party processor for the merchant acquiring industry. VITAL is headquartered is Tempe, Arizona, with operations in Columbus, Georgia. VITAL employs approximately 800 associates. The address for Vital Processing Services headquarters is: Vital Processing Services 8320 S. Hardy Drive Tempe,Arizona 85284 Phone: 480-333-7600 Fax: 480-333-7015 www.vitalps.com Page 36 of 43 . The average response time for dial shall be 5-8 seconds for normal periods and 6-9 seconds for peak periods. This time-frame does not include dial time but only the duration between the moment the device transmits the request to the host system and the moment the host system replies to the device. For lease line connections, the average response time for normal and peak shall range from 0.2 to 1 second. Electronic authorization services shall be available 24 hours, 365 days of the year. Authorizations can be obtained via stand-alone terminals, PC-based software applications, internet applications, and interactive/touch tone/voice authorization services. Many of these applications can operate in a real-time and/or batch operations mode. In the event a State agency's electronic terminal is unavailable for use, the agency would rely on manual sales drafts and voice authorizations for back up. The Bank staffs its own voice authorization center in El Paso, Texas. When a terminal is made available for use again, the manual sales drafts would be input as force/post authorizations. Dial-pay, an Interactive Voice Response system is also available for back up. This option can be setup for each merchant number and provides an option to use the telephone for draft capture during periods of downtime. A toll free phone is dialed, the State agency's merchant number, card number, expiration date, and amount of sale is entered via a touch-tone telephone. An approval code or decline message will be provided. These transactions will then be settled at the end of the day. No additional input will be required. This eliminates the need to input the transactions as force/post authorizations. An additional fee of$ .50 per transactions would add to each transaction except during periods of Bank initiated downtime when electronic terminal services are not available. The full deposit (without any additional discount fees) will be sent to the agency's demand deposit bank account (DDA) at the bank of its choice within 48 hours after the agency has settled its batch. Deposits will be identified by merchant number. All other fees will be handled separately as requested. Discount fees for the Bank are deducted from the agency's DDA (checking) account on the third business day of the following month. The fees are deducted simultaneously with the agency's merchant services statement. The State shall have an account manager assigned to the account to handle error resolution, research, and other specific issues as needed. An account manager will be made available to the State during normal business hours for non-routine inquiries and escalation issues. III.IMPLEMENTATION Following contract execution for credit card acceptance processing, the Bank shall schedule a general informational meeting with the designated participating agency managers. The Bank's objective will be to obtain detailed information to ensure minimal disruption to the existing business during the conversion/installation transition. The Bank shall invest significant time in collaboration with State agencies to complete the implementation process. This will include Business Assessment requirements, Conceptual Page 37 of 43 Design (Identify and Define requirement), Detail Design and Implementation. These phases may include organizational issues, electronic requirements, training, and program design while providing the State with the resources and ongoing services necessary to ensure a smooth implementation. The Bank shall review, develop and document implementation timelines and deliverables with the State that meets the State's expectations and IT commitment. The Bank has a proven strategy of assigning an internal implementation team to facilitate this process. This team will draw on personnel across any needed functional area of the Bank from senior management, project management, account management, implementation, technical support, product management and marketing, systems, operations and customer service. This approach has proven to be a reliable method of implementing large clients similar to the State. The Bank has designated Ms. Timon Walton located in Dallas, Texas to be the implementation manager assigned to the State. She will be available to coordinate the implementation process as well as provide on-site training as required. IV.CHARGEBACKS The EMS system (Cadre) is a back-office acquirer system that provides the benefits of optical imaging and rule based logic to facilitate dispute resolution processors for chargebacks and sales draft retrievals. Chargeback/Retrieval requests are downloaded to the EMS system where they are researched, processed, and resolved through an established set of tasks and procedures. The EMS system is an integral and critical component of the Merchant Services Chargeback Unit. The EMS system is:Used to manage daily incoming and outgoing chargebacks and retrievals in an automated fashion b. Used to facilitate workflow for the associates by requesting or pending for required data such as; transaction or authorization information as well as bank documentation c. Used to create reporting used by the management team to monitor volumes and trends d. Used by the Bank's call center to address State agency inquires and by its Risk Management unit to monitor specific State agencies. The EMS system provides image storage capability, automates an extensive documentation process, and automates the delivery of information and images to Visa and MasterCard The Bank processes chargebacks for its merchants just as it process the transactions. The Bank passes through the items to and from the VISA and MasterCard Associations and issuing banks. The Bank does not have any control over chargebacks that the Cardholder and issuing bank may initiate. Once a chargeback is received, the Bank ensures it is a valid chargeback and meets the requirements set forth by the Associations. If a chargeback does not meet the requirements, the Bank immediately returns it to the issuing bank without notifying the State agency. For most chargebacks received, the Bank must pass them on to the State agency for additional information and documentation. The State agency then has 14 days to respond with the appropriate Page 38 of 43 documentation. At that point, the Bank reviews the documentation and if the Association regulations allow it, the Bank will return the item to the issuing bank. The Bank is unable to prevent any State agency from receiving chargeback, and is unable to guarantee the outcome of any chargeback received. However, the manner in which a State agency processes its transactions can reduce the risk and exposure to chargebacks. Retrieval Processing: • Faxed or mailed based on merchant preference • Merchants are allowed 14 days to respond • 2n° request is sent after 14 days if no response received Chargeback • Verify no credits processed Processing: • Notification mailed same day Chargeback is processed • Merchant is allowed 14 days to respond • Rebuttal response is processed within 5 days of receipt. Merchant is notified via mail. The Bank is proposing the use of Access.net for reporting. Access.net is available for viewing via the Internet. Access.net offers State agencies the ability to reconcile financial data, audit information and perform trend analysis on critical payment information. Features and benefits include: a. 24/7 access to critical payment and reporting information b. Allows for multiple users with controlled access to information c. Reporting available on a daily or monthly basis d. State of the art search engine on specific data elements,reducing research efforts e. Flexible and robust data allowing for data flow management f. Reduced fraud by immediate notification of exception data g. Reduced internal training efforts using point and click web technology h. Summary and detail info available for 70-days i. No downloads required-data is available online in real-time j. Electronic data available for use with your accounting and reconciliation programs k. Keyword search capability 1. Email and feedback functionality m. Full suite of report data including transaction activity, deposit, exception and interchange management n. Multiple reporting roll-up levels available in an easy-to-read format o. Data export capabilities for interfacing with spreadsheets, databases and data analysis tools p. Ability to print or export entire sections of reports q. Advanced search feature to look for authorization and capture data r. Customer management of users,security levels and access rights. s. Information secured using SSL encryption technology t. Remote Administrator capability- allows State agency administration of users to reset passwords, add/delete users in an online,real-time environment u. Ability to create customized user Ids v. Interactive help file and report guides to assist in internal training END OF STATEMENT OF WORK Page 39 of 43 MEMORANDUM OF UNDERSTANDING Between the State Of Colorado and Bank of America Merchant Services, LLC January 24, 2006 The purpose of this Memorandum of Understanding is to define the organizational support and establish guidelines for Bank of America's Commitment for Implementation, Account Management, and Customer Service Levels for merchant processing services. I. Implementation Team responsibilities. A. The Sales Officer shall be responsible for the following: 1. Escalate team issues internally on an on-going basis 2. Future sales opportunities 3. Overall responsibility for relationship with the State and services specified in the contract. B. The Implementation Consultant shall be responsible for the coordination and management of the implementation process. Responsibilities shall include: 1. Project assessment and data collection 2. Conversion project design, development, and timeline 3. Oversight of client training 4. Post-implementation monitoring for all new Agencies on an on-going basis 5. Transition to the relationship account managers C. Two Relationship Account Managers shall be responsible for on-going support and operational services: 1. Vendor support a) Merchant (staff onsite, managerial, franchises and corporate) b) Equipment installs /upgrades/maintenance c) On-going support d) Education/training e) End of day reconciliation f) Monitor daily card activity at the device level g) Reporting 2. Operational services a) Interchange Management b) Exception Item Handling c) Risk Management d) Reporting D. The specific services listed above are examples and do not exclude other services directly related to implementation, account management, and customer service. E. Bank of America may replace the sales officer, implementation team coordinator, or relationship manager(s) with notice to the State. The State at its sole discretion may request the replacement of an individual if it determines such replacement is in the best Page 40 of 43 interest of the State, such request will not be unreasonably delayed or denied by Bank of America. II. Meeting Schedules A. Bank of America and the State shall meet monthly in Colorado through the implementation period on a date mutually agreed to by the State and Bank of America. The implementation period is estimated to be six months from the effective date of the Merchant Services Agreement, and may be extended by mutual agreement of the parties. B. During the implementation period, ad-hoc on-site meetings in addition to the scheduled monthly meetings may be arranged by either party with the consent of the other party. C. Ad-hoc meetings also may be conducted via the Bank of America bridgeline for conference calls. Such calls can be scheduled upon two hours advance notice and can include an unlimited number of attendees, PROVIDED, HOWEVER, the number of dial-in attendees will not exceed the maximum dial-in portals. D. Following the implementation period, meetings may be conducted as frequently and in a location as mutually agreed to by the parties. Topics for discussion may include, but are not limited to: 1. Interchange analysis 2. Chargeback analysis and review 3. Processing issues 4. Service satisfaction 5. Identification of State agency/city/county/municipality sales opportunities III. Customer Service A. Bank of America Merchant Services shall not out-source customer service without prior notice to the State. B. Customer Service shall be provided toll free 24 hours a day, every day of the year. The customer service personnel shall effectively answer 96% of all questions during the initial phone call. Customer service is managed internally and is located in Spokane, WA. C. The Differentiated Service Team (DST) shall handle routine and non-emergency inquiries regarding account information, transaction records, and other account level issues and shall be available Monday- Saturday, 8:00 AM - Midnight ET. Upon entering its merchant account number, an entity may be routed to the Differentiated Service Team for immediate, enhanced support and one-call resolution. The team has complete transaction detail visible on line for on-the-spot answers to questions. This specialty service group may also support routine service issues. D. Escalation staff shall be available at the same times as the DST and also be available either at the request of the State or to assist a customer service representative or DST members with uncommon or unusual service situations. A customer service representative may escalate automatically to the escalation staff who may escalate to the staff supervisor should resolution require unusual expertise or intervention. END OF MEMORANDUM OF UNDERSTANDING Page 41 of 43 Exhibit 4 CONTRACT FOR ALTERNATIVE FORMS OF PAYMENT SERVICES May 1,2006 USER GUIDES AND SERVICE DOCUMENTS The following documents are included in this Exhibit 4: A. The appendices to the December 6, 2005 proposal from the Bank. i. BA Merchant Services Agreements BAMS MSA(8-2-05) B. Updates or revisions to these appendices. C. Merchant user guides or service agreements currently provided by the Bank to State agencies as part of establishing alternative forms of payment services. D. Future updates or revisions to these user guides or service agreements or new guides or agreements prepared by the Bank for use by State agencies. None of these current documents, future updates or revisions of these documents, or new guides or agreements will change the Paragraph 2 ORDER OF PRECEDENCE in this contract. In the event of a conflict between the Bank of America Merchant Services Agreement and the Contract or the Special Provisions, the Contract and Special Provisions will control. In any event, nothing shall obligate the State to indemnify Bank of America, agree to mandatory binding arbitration, waive its right to a jury trial nor grant a security interest or any other type of interest in any State bank accounts or Treasury deposits other than the Deposit Agreement and Reserve Account expressly established under this Contract. Further, the Special Provisions shall control and nothing shall limit the Bank's liability to the State under the indemnification special provision. Copies of current and future documents will be maintained at State Treasury and Bank of America Merchant Services, LLC. Page 42 of 43 Exhibit 5 CONTRACT FOR ALTERNATIVE FORMS OF PAYMENT SERVICES May 1,2006 OPTION LETTER Date: April 30, 2008 State Fiscal Year: 2009 Option Letter No. SUBJECT: Option to renew for an additional term In accordance with Paragraph 3 of contract with the routing number 2006 Department of Treasury f# 1, between the State of Colorado, Department of Treasury and Bank of America, National Association, Treasury hereby exercises the option for an additional contract term of one year at a the fees specified in Exhibit 2.0. The amount of the current Fiscal Year contract value is increased / decreased by $ to a new contract value of $ to reimburse the contractor for the services provided under this contract as described in Exhibit 3. Paragraph A in Paragraph 3 in the contract is hereby modified accordingly. The total contract value to include all previous amendments, option letters, etc. is $ APPROVALS: State of Colorado: , Treasurer Date ,2008 ALL CONTRACTS MUST BE APPROVED BY THE STATE CONTROLLER CRS 24-30-202 requires that the State Controller approve all state contracts. This contract is not valid until the State Controller, or such assistant as he may delegate, has signed it. The contractor is not authorized to begin performance until the contract is signed and dated below. If performance begins prior to the date below, the State of Colorado may not be obligated to pay for goods and/or services provided. State Controller By: Date: ,2008 Page 43 of 43 Hello