HomeMy WebLinkAbout20240437.tiffRESOLUTION
RE: APPROVE MASTER MERCHANT SERVICES CONTRACT AND PARTICIPATION
AGREEMENT (EXHIBIT E) FOR CREDIT CARD PROCESSING SERVICES, AND
AUTHORIZE CHAIR TO SIGN AND SUBMIT ELECTRONICALLY
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 Master Merchant Services Contract and
Participation Agreement (Exhibit E) among the County of Weld, State of Colorado, by and through
the Board of County Commissioners of Weld County, on behalf of the Accounting Department,
the Colorado Department of Treasury, Wells Fargo Merchant Services, LLC, and Wells Fargo
Bank, N.A., commencing upon full execution of signatures, with further terms and conditions being
as stated in said contract and agreement, and
WHEREAS, after review, the Board deems it advisable to approve said contract and
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 Master Merchant Services Contract and Participation Agreement
(Exhibit E) among the County of Weld, State of Colorado, by and through the Board of County
Commissioners of Weld County, on behalf of the Accounting Department, the Colorado
Department of Treasury, Wells Fargo Merchant Services, LLC, and Wells Fargo Bank, N.A., be,
and hereby is, approved.
BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized
to electronically sign and submit said contract and agreement.
The above and foregoing Resolution was, on motion duly made and seconded, adopted
by the following vote on the 21st day of February, A.D., 2024.
BOARD OF COUNTY COMMISSIONERS
ATTEST: dom./0 w `;41,
Weld County Clerk to the Board
BYi rl . �Wt-0i'GE.
APP
Deputy Clerk to the Board
inc
ounTy At orney
Date of signature:
WELD COUNTYRA
Ke . Ross, Chei
Perry L. ck, Pro-Tem
EXCUSED
Mike Freeman
ott K. James
cc •. A c 1 (cP/cD)
o3/IS/,24
2024-0437
AC0023
Con -I-vae-11).4184Z
MEMORANDUM
TO: BOCC
DATE: February 15, 2024
FROM: Chris D'Ovidio
SUBJECT: Wells Fargo Merchant Service LLC
The attached participation agreement with Wells Fargo Merchant Services is being signed in
conjunction with the state of Colorado agreement with Wells Fargo Merchant Services for credit card
processing services. By participating in the agreement negotiated by the state the County will
receive the states negotiated pricing for the credit card processing services provided by Wells Fargo.
This is consistent with wit the County practices in the past for these services with the last of such
agreement being sign3ed in February 2018.
Thanks
2024-0437
2121 1 C C2
DocuSign Envelope ID: C5ABA83B-05E7-4D18-6035-79A7A5967AEE
STATE OF COLORADO CONTRACT
For Merchant Services
COVER PAGE
State Agency
Department of Treasury
Contract Number
Insert CMS number or Other Contract Number
Contractors
Wells Fargo Merchant Services, LLC and
Wells Fargo Bank, N.A.
Implementation Period
The Effective Date through February 29, 2024
Contract Performance Beginning Date
March 1, 2024
Contract Maximum Amount
Initial Term
Not applicable.
Extension Terms
Not applicable.
Pursuant to a Participation Agreement, the amounts
payable by State Agencies and Political Subdivisions to
the Contractors are the payment of the fees set forth in
Exhibit C.
Total for All State Fiscal Years Not applicable.
Initial Contract Expiration Date
February 28, 2029
Contract Authority
§24-19.5-104, C.R.S., and §24-110-201, et seq., C.R.S.
Contractor was selected pursuant to Request for Proposal:
RFP-TRES-NP-23-001 re Merchant Card Services
Contract Purpose
The Contractor shall process credit card transactions (alternative forms of payment) and provide related equipment to State
Agencies and Political Subdivisions (as hereinafter defined).
Exhibits and Order of Precedence
The following Exhibits and attachments are included with this Contract:
1. Exhibit A — Scope of Work;
2. Exhibit B — PII Certifications;
3. Exhibit C — Pricing Terms;
4. Exhibit D — Wells Fargo Merchant Services Terms and Conditions, as amended by the Wells Fargo Merchant
Services Amendment;
5. Exhibit E — sample Participation Agreement;
6. Exhibit F — Clover Service Addendum; and
7. Exhibit G — sample Confirmation Page (see the Participation Agreement).
In the event of a conflict or inconsistency between this Contract and any Exhibit or attachment, such conflict or inconsistency
shall be resolved by reference to the documents in the following order of priority:
1. Colorado Special Provisions in §18 of the main body of this Contract.
2. The provisions of the other sections of the main body of this Contract.
3. Exhibit A, Scope of Work
4. Exhibit B, PII Certifications;
5. Exhibit C, Pricing Terms;
6. Exhibit D, Wells Fargo Merchant Services Terms and Conditions, as amended by the Wells Fargo Merchant Services
Amendment;
7. Exhibit F, Clover Service Addendum;
8. Exhibit E, sample Participation Agreement; and
9. Exhibit G, sample Confirmation Page (see the Participation Agreement).
Contract Number,
Page 1 of 26
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Principal Representatives
For the State:
Department of Treasury
200 E. Colfax Avenue, Room 140
Denver, Colorado 80203
Attention: Eric Rothaus
Email: Eric.Rothaus@state.co.us
For Contractor:
Wells Fargo Merchant Services
5700 DTC Parkway
Greenwood Village, Colorado 80111
Attention: Patty White, Senior Relationship Manager
Email: Patty.White@wellsfargo.com
SIGNATURE PAGE
THE PARTIES HERETO HAVE EXECUTED THIS CONTRACT
Each person signing this Contract represents and warrants that he or she is duly authorized to execute this Contract and to
bind the Party authorizing his or her signature.
CONTRACTOR
Wells Fargo Merchant Services, LLC
A Delaware limited liability company
Docusigned by:
L;n&Te
STATE OF COLORADO
Jared S. Polis, Governor
Department of Treasury
David L. Young, Treasurer
Doe
of Person Signing for Contractor
Date: 12/1/2023
FesetraesAaa1i7y: David L. Young, Treasurer
Dale: 12/1/2023
CONTRACTOR
Wells Fargo Bank, N.A.
DocuSigned by:
[.1� tiv4 sev, vice President
LEGAL REVIEW
Philip J. Weiser, Attorney General
DocuSigned by:
By: Di* G W
esc3HiffG.& Title of Person Signing for Signatory
Date: 12/1/2023
F;7�BPCA��@rAta00...
Dixon Waster, Assistant Attorney General
Date: 12/1/2023
In accordance with §24-30-202, C.R.S., this Contract is not valid until signed and dated below by the State Controller or an
authorized delegate.
STATE CONTROLLER
Robert Jaros, CPA, MBA, JD
ocuSigned by:
Pt,.,�.��,
By.oa
oo CiAa3
Name of Agency or IHE Delega alease 2lelete if contract will be routed to OSC for approval
Effective Date: March 01, 2024
Contract Number:
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TABLE OF CONTENTS
COVER PAGE 1
SIGNATURE PAGE 2
1. PARTIES 3
2. TERM AND EFFECTIVE DATE 3
3. DEFINITIONS 4
4. STATEMENT OF WORK 8
5. PAYMENTS TO CONTRACTOR 8
6. REPORTING - NOTIFICATION 11
7. CONTRACTOR RECORDS 11
8. CONFIDENTIAL INFORMATION -STATE RECORDS 12
9. CONFLICTS OF INTEREST 14
10. INSURANCE 15
11. BREACH OF CONTRACT 16
12. REMEDIES 17
13. DISPUTE RESOLUTION 19
14. NOTICES AND REPRESENTATIVES 19
15. RIGHTS IN WORK PRODUCT AND OTHER INFORMATION 19
16. STATEWIDE CONTRACT MANAGEMENT SYSTEM 20
17. GENERAL PROVISIONS 20
18. COLORADO SPECIAL PROVISIONS (COLORADO FISCAL RULE 3-3) 24
1. PARTIES
This Contract is entered into by and among the Contractors named on the Cover Page for this
Contract (collectively, the "Contractor"), and the STATE OF COLORADO, acting by and through
the State agency named on the Cover Page for this Contract (the "State" or "Treasury"). Contractor
and the State agree to the terms and conditions in this Contract.
2. TERM AND EFFECTIVE DATE
A. Effective Date / Implementation Period
This Contract shall not be valid or enforceable until the Effective Date. The State shall not
be bound by any provision of this Contract before the Effective Date, and shall have no
obligation to pay Contractor for any Work performed or expense incurred before the Contract
Performance Beginning Date shown on the Cover Page for this Contract or after the
expiration or sooner termination of this Contract. The Contractor shall coordinate the
commencement and implementation of the Services with the State, State Agencies, and
Political Subdivisions from the Effective Date through the Contract Performance Beginning
Date shown on the Cover Page (the "Implementation Period").
B. Initial Term
The Parties' respective performances under this Contract shall commence on the Contract
Performance Beginning Date shown on the Cover Page for this Contract and shall terminate
on the Initial Contract Expiration Date shown on the Cover Page for this Contract (the "Initial
Term"), unless sooner terminated or further extended in accordance with the terms of this
Contract.
C. Extension Terms - State's Option
Intentionally deleted.
Contract Number:
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D. End of Term Extension
If this Contract approaches the end of its Initial Term, or any Extension Term then in place,
the State, at its discretion, upon written notice to Contractor as provided in §14, may
unilaterally extend such Initial Term or Extension Term for a period not to exceed two months
(an "End of Term Extension"), regardless of whether additional Extension Terms are
available or not. The provisions of this Contract in effect when such notice is given shall
remain in effect during the End of Term Extension. The End of Term Extension shall
automatically terminate upon execution of a replacement contract or modification extending
the total term of this Contract.
E. Early Termination in the Public Interest
The State is entering into this Contract to serve the public interest of the State of Colorado as
determined by its Governor, General Assembly, or Courts. If this Contract ceases to further
the public interest of the State, the State, in its discretion, may terminate this Contract in
whole or in part. A determination that this Contract should be terminated in the public interest
shall not be equivalent to a State right to terminate for convenience. This subsection shall not
apply to a termination of this Contract by the State for Breach of Contract by Contractor,
which shall be governed by §12.A.i.
i. Method and Content
The State shall notify Contractor of such termination in accordance with §14. The
notice shall specify the effective date of the termination and whether it affects all or a
portion of this Contract, and shall include, to the extent practicable, the public interest
justification for the termination.
ii. Obligations and Rights
Upon receipt of a termination notice for termination in the public interest, Contractor
shall be subject to the rights and obligations set forth in §12.A.i.a.
iii. Payment
If the State terminates this Contract in the public interest, any amounts owed to
Contractor by a Participant under an applicable Participation Agreement at the time of
termination shall continue to be owing by the Participant following termination of the
Contract.
3. DEFINITIONS
The following terms shall be construed and interpreted as follows:
A. "2018 Master Merchant Services Contract" means the Master Merchant Services Contract
by and among the Contractor and Treasury, as amended, having an Effective Date of March
8, 2018 and expiring February 29, 2024.
B. "Breach of Contract" means the failure of a Party to perform any of its obligations in
accordance with this Contract, in whole or in part or in a timely or satisfactory manner. The
institution of proceedings under any bankruptcy, insolvency, reorganization or similar law,
by or against Contractor, or the appointment of a receiver or similar officer for Contractor or
any of its property, which is not vacated or fully stayed within 30 days after the institution of
such proceeding, shall also constitute a breach. If Contractor is debarred or suspended under
§24-109-105, C.R.S., at any time during the term of this Contract, then such debarment or
suspension shall constitute a breach.
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C. "Business Day" means any day in which the State is open and conducting business, but shall
not include Saturday, Sunday or any day on which the State observes one of the holidays
listed in §24-11-101(1), C.R.S.
D. "Chief Procurement Officer" means the individual to whom the Executive Director has
delegated his or her authority pursuant to §24-102-202, C.R.S., to procure or supervise the
procurement of all supplies and services needed by the State.
E. "Card Organization" means an entity formed to administer and promote credit and/or debt
cards, as defined in Exhibit D, the Terms and Conditions.
F. "Card Organization Adjustment" means an adjustment in prices, rates or service delivery
requirements to reflect increases and/or decreases by Card Organizations in interchange
assessments and other Card Organization fees or pass -through increases charged by third
parties for on-line communications and similar items as permitted in Section 6 of the Terms
and Conditions.
G. "Card Organization Rules" are defined in Exhibit D, the Terms and Conditions.
H. "Chargebacks" are defined in Exhibit D, the Terms and Conditions.
I. "Clover" means a credit card payment processor for small businesses, which is considered
an "all -in -one" system because it offers credit card processing along with POS hardware,
POS software, and a virtual terminal.
J. "Clover Service Addendum" means the "Addendum to Agreement for Special Provisions
Regarding Clover Service," attached hereto as Exhibit F, which is incorporated by reference
into a Participant's Merchant Services Agreement.
K. "Confirmation Page" means the Contractor's Confirmation Page, a sample of which is
attached hereto as Exhibit G, and is incorporated by reference into the Merchant Services
Agreement. Each Participant has either executed a Confirmation Page pursuant to the 2018
Master Merchant Services Contract or will execute a Confirmation Page as a new participant
pursuant to this Contract and a Participation Agreement.
L. "Contract" means this agreement, including all attached Exhibits, all documents
incorporated by reference, all referenced statutes, rules and cited authorities, and any future
modifications thereto.
M. "Contract Funds" means the funds that have been appropriated, designated, encumbered, or
otherwise made available for payment by a Participant pursuant to a Participation Agreement.
N. "CORA" means the Colorado Open Records Act, §§24-72-200.1, et seq., C.R.S.
O. "Deliverable" means the outcome to be achieved or output to be provided, in the form of a
tangible object or software that is produced as a result of Contractor's Work that is intended
to be delivered to the State or a Participant by the Contractor.
P. "Effective Date" means the date on which this Contract is approved and signed by the
Colorado State Controller or designee, as shown on the Signature Page for this Contract.
Q. "End of Term Extension" means the time period defined in §2.D.
R. "Exhibits" means the exhibits and attachments included with this Contract as shown on the
Cover Page for this Contract.
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S. "Extension Term" means the time period defined in §2.C.
T. "Goods" means any movable material acquired, produced, or delivered by Contractor as set
forth in this Contract and shall include any movable material acquired, produced, or delivered
by Contractor in connection with the Services.
U. "Incident" means any accidental or deliberate event that results in or constitutes an imminent
threat of the unauthorized access, loss, disclosure, modification, disruption, or destruction of
any communications or information resources of the State or a Participant, which are
included as part of the Work, as described in §§24-37.5-401, et seq., C.R.S. Incidents include,
without limitation: (i) successful attempts to gain unauthorized access to a State system, a
Participant system or State Records regardless of where such information is located; (ii)
unwanted disruption or denial of service; (iii) the unauthorized use of a State or Participant
system for the processing or storage of data; or (iv) changes to a State or Participant system
hardware, firmware, or software characteristics without the knowledge, instruction, or
consent of the State or Participant, where applicable.
V. "Initial Term" means the time period defined in §2.B.
W. "Merchant" means the State Agencies and Political Subdivisions that will utilize the
Services provided under this Contract through a Participant Agreement.
X. "Merchant Processing Application" means the Contractor's Merchant Processing
Application, which is incorporated by reference into the Merchant Services Agreement. Each
Participant has either executed a Merchant Processing Application pursuant to the 2018
Master Merchant Services Contract or will execute a Merchant Processing Application as a
new participant pursuant to this Contract and a Participation Agreement. For any new
Participant, the Merchant Processing Application is completed electronically or
digitally in Contractor's systems.
Y. "Merchant Services Agreement" is comprised of the Terms and Conditions, as amended by
the Merchant Services Amendment, both of which are attached hereto as Exhibit D, the
Addendum to Agreement for Special Provisions Regarding Clover Service (the "Clover
Service Addendum") attached hereto as Exhibit F, together with a Merchant Processing
Application executed by a Participant, the Pricing Terms attached hereto as Exhibit C, the
Operating Rules, a Confirmation Page executed by a Participant, and those other attachments
referenced therein, such as the Card Organization Rules. Through a Participation Agreement,
each Participant shall have a Merchant Services Agreement with the Contractor.
Z. "Merchant Services Amendment" means the Amendment to the Wells Fargo Merchant
Services Terms and Conditions attached hereto as Exhibit D.
AA. "Operating Rules" are the Wells Fargo Operating Rules available
wellsfargo.com/operatingrules.
BB. "Participant" means those State Agencies and Political Subdivisions that utilize this
Contract and the Contractor's Services through a Participation Agreement. Participant also
refers to a Merchant.
CC. "Participation Agreement" means the agreement between the Participant and the
Contractor, substantially in the form of Exhibit E, through which a Participant utilizes and
participates in this Contract and a Merchant Services Agreement. All Participants, including
those participants who have executed a previous Participation Agreement pursuant to the
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2018 Master Merchant Services Contract, will execute a Participation Agreement, a sample
of which is attached hereto as Exhibit E.
DD. "Party" means the State or Contractor, and "Parties" means both the State and Contractor.
EE. "PCI" means payment card information including any data related to credit card holders'
names, credit card numbers, or other credit card information as may be protected by state or
federal law.
FF. "PII" means personally identifiable information including, without limitation, any
information maintained by the State or a Participant about an individual that can be used to
distinguish or trace an individual's identity, such as name, social security number, date and
place of birth, mother's maiden name, or biometric records; and any other information that is
linked or linkable to an individual, such as medical, educational, financial, and employment
information. PII includes, but is not limited to, all information defined as personally
identifiable information in §§24-72-501 and 24-73-101, C.R.S. "PII" shall also mean
"personal identifying information" as set forth at § 24-74-102, et. seq., C.R.S.
GG. "Political Subdivisions" means a political subdivision of the State of Colorado or any
authorized agent.
HH. "Purchasing Card Level II" applies to determining the interchange rate. Level II requires
that data such as tax amount and customer code be supplied in addition to the standard
transaction date. (Visa only has a level II option.)
II. "Purchasing Card Level III" applies to determining the interchange rate. The third level
allows a Merchant to pass a detailed accounting of goods and services purchased to the buyer.
All the data for Level I and Level II shall also be passed to participate in Level III. (Visa and
MasterCard).
JJ. "Reserve Account" means an account established for a Participant and funded at the request
of Contractor in accordance with Exhibit D, the Terms and Conditions.
KK. "Settlement Account" means a demand deposit funding account established by a Participant
at a financial institution in accordance with Exhibit D, the Terms and Conditions, to be
debited and credited by Contractor for credit card transactions, fees, Chargebacks and other
amounts due under a Participation Agreement.
LL. "State Agencies" means the State of Colorado's executive, legislative and judicial branches
and their respective divisions, agencies, and work units, and for the purposes of this Contract,
State of Colorado institutions of higher education.
MM. "Services" means the services to be performed by Contractor as set forth in this Contract, the
Merchant Services Agreement, and shall include any services to be rendered by Contractor
in connection with the Goods.
NN. "State Confidential Information" means any and all State Records not subject to disclosure
under CORA. State Confidential Information shall include, but is not limited to, PII, PCI,
and State personnel records not subject to disclosure under CORA. State Confidential
Information shall not include information or data concerning individuals that is not deemed
confidential but nevertheless belongs to the State, which has been communicated, furnished,
or disclosed by the State to Contractor which (i) is subject to disclosure pursuant to CORA;
(ii) is already known to Contractor without restrictions at the time of its disclosure to
Contractor; (iii) is or subsequently becomes publicly available without breach of any
obligation owed by Contractor to the State; (iv) is disclosed to Contractor, without
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confidentiality obligations, by a third party who has the right to disclose such information;
or (v) was independently developed without reliance on any State Confidential Information.
OO. "State Fiscal Rules" means the fiscal rules promulgated by the Colorado State Controller
pursuant to §24-30-202(13)(a), C.R.S.
PP. "State Fiscal Year" means a 12 month period beginning on July 1 of each calendar year and
ending on June 30 of the following calendar year. If a single calendar year follows the term,
then it means the State Fiscal Year ending in that calendar year.
"State Records" means any and all State data, information, and records, regardless of
physical form, including, but not limited to, information subject to disclosure under CORA.
RR. "Subcontractor" means any third party engaged by Contractor to aid in performance of the
Work.
QQ.
SS. "Third -Party Processor" means a payment processor that routes a customer's credit card
information between a point -of -sale system and the customer's card network or bank.
TT. "Wells Fargo Merchant Services Terms and Conditions" or "Terms and Conditions"
means the Wells Fargo Merchant Services Terms and Conditions, as amended by the
Merchant Services Amendment, both of which are attached hereto as Exhibit D.
UU. "Work" means the Goods delivered and Services performed pursuant to this Contract.
VV. "Work Product" means the tangible and intangible results of the Work, whether finished or
unfinished, including drafts. Work Product includes, but is not limited to, documents, text,
software (including source code), research, reports, proposals, specifications, plans, notes,
studies, data, images, photographs, negatives, pictures, drawings, designs, models, surveys,
maps, materials, ideas, concepts, know-how, and any other results of the Work. "Work
Product" does not include any material that was developed prior to the Effective Date that is
used, without modification, in the performance of the Work.
Any other term used in this Contract that is defined in an Exhibit shall be construed and interpreted
as defined in that Exhibit.
4. STATEMENT OF WORK
Contractor shall complete the Work as described in this Contract and in accordance with the
provisions of its Exhibits A through G. The State shall have no liability to compensate Contractor
for the delivery of any goods or the performance of any services that are not specifically set forth
in this Contract.
5. PAYMENTS TO CONTRACTOR
A. Maximum Amount
Treasury, as a signatory to this Contract, shall not be liable to Contractor for any breach of
any payment or other obligation under a Participation Agreement. A Participant, in
accordance with the provisions of this §5, shall pay Contractor for Services provided to the
Participant under the Participation Agreement to which it is a party in the amounts and using
the methods set forth in this §5.
B. Payment Procedures
i. Payment
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a. Satisfactory performance under the terms of this Contract shall be a condition
precedent to a Participant's obligation to compensate Contractor. Contractor's
compensation for the Services delivered under a Participation Agreement shall be
based upon the prices and rates set forth in Exhibit C, which constitute all the
fees and expenses applicable to the Participants under this Contract and the
Participation Agreement. Except as disclosed in Exhibit C, Contractor shall not
assess or implement any additional fees or expenses. The fees and expenses set
forth in Exhibit C include equipment prices for new equipment only as of the
Effective Date. Refurbished and other equipment may be available at different
prices.
b. Contractor's fees and expenses set forth in Exhibit C (other than Card
Organization Adjustments) shall remain in effect during the term of this Contract,
including any extensions. Contractor shall be permitted to make Card
Organization Adjustments during the term of this Contract, including any
extensions, and shall provide written notice to the State and all Participants, in
accordance with §14 of this Contract and Section 5 of the Participant Agreement,
at least 10 days prior to any Card Organization Adjustment, unless a Card
Organization gives less notice, in which case Contractor shall provide notice as
soon as commercially practicable.
c. No later than the 5th Business Day following the close of each calendar month,
Contractor shall prepare and post on the web -based reporting tool, established by
each Participant, a statement of account for such Participant's Settlement
Account, setting forth all Services performed and transactions completed,
including without limitation Chargebacks and payments, during the preceding
month. The statement of account shall include all amounts due to Contractor by
the Participant for the preceding month, determined in accordance with the prices
and rates set forth in Exhibit C. A Participant may provide written notice to
Contractor electing to receive a written statement through the U.S. mail in
addition to or in lieu of on-line delivery, which statement shall be received by the
Participant not later than the 15th Business Day following the end of the preceding
month.
d. On or around the 8th Business Day of each month, Contractor may withdraw from
the Settlement Account established by each Participant funds in an amount equal
to all amounts payable by such Participant for the Services under the statement
for the preceding month. Contractor and a Participant, with the prior approval of
State, may agree to a different method of payment if such method is set forth in
the Participation Agreement between Contractor and the Participant and approved
by the State.
e. If a Participant disputes any of the amounts set forth in a monthly statement of
account, the Participant shall provide written notice to Contractor, in accordance
with §14 of this Contract and Section 5 of the Participation Agreement, within 60
days of the delivery of such statement, setting forth the disputed item(s) and the
reason that the Participant is disputing the amount. If the dispute involves a Card
Organization fee, Contractor shall assist the Participant in resolving the dispute
with the appropriate Card Organization in accordance with §6.12 of the Terms
and Conditions. If the dispute involves amounts charged by Contractor, the
dispute shall be resolved in accordance with the terms of this Contract.
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f. Except as otherwise provided in this §5(B)(i), a Participant shall fully pay each
invoice within 45 days of receipt thereof if the amount invoiced represents
performance by Contractor previously accepted by the Participant. Uncontested
amounts not paid by a Participant within 45 days shall bear interest on the unpaid
balance beginning on the 460i day at a rate not to exceed one percent per month
until paid in full; provided, however, that interest shall not accrue on unpaid
amounts that are subject to a good faith dispute. Contractor shall invoice a
Participant separately for accrued interest on delinquent amounts. The billing shall
reference the delinquent payment, the number of days interest to be paid and the
interest rate.
g.
At the sole discretion of a Participant, payments made to Contractor in error for
any reason, including, but not limited to overpayments or improper payments, and
unexpended or excess funds received by Contractor, may be recovered from
Contractor by deduction from subsequent payments under the Participation
Agreement to which the Participant is a party or other contracts, grants or
agreements between the Participant and Contractor or by other appropriate
methods and collected as a debt due to the Participant. Such funds shall not be
paid to any person or entity other than the Participant.
h. The acceptance of an invoice shall not constitute acceptance of any Work
performed or Deliverables provided under this Contract.
ii. Interest
Where applicable, amounts not paid by the State within 45 days of the State's
acceptance of the invoice shall bear interest on the unpaid balance beginning on the 45th
day at the rate of 1% per month, as required by §24-30-202(24)(a), C.R.S., until paid in
full; provided, however, that interest shall not accrue on unpaid amounts that the State
disputes in writing. Contractor shall invoice the State separately for accrued interest on
delinquent amounts, and the invoice shall reference the delinquent payment, the number
of days interest to be paid and the interest rate.
iii. Available Funds -Contingency -Termination
State Agencies and Political Subdivisions are prohibited by law from making
commitments beyond the term of the current State Fiscal Year. Therefore, Contractor's
compensation under a Participation Agreement with State Agencies and Political
Subdivisions beyond the current State Fiscal Year is contingent upon the continuing
availability of appropriations by the General Assembly (for State Agencies as provided
in the Colorado Special Provisions) and the governing authority of the Political
Subdivision; provided, however, that the Participant shall notify Contractor by no later
than the last day in May of the current State Fiscal Year if appropriations have not been
made for the following State Fiscal Year. If federal funds are used to fund a
Participation Agreement, in whole or in part, the performance of the Participant
thereunder is contingent upon the continuing availability of such funds. Payments
pursuant to a Participation Agreement shall be made only from available funds
encumbered for the Participation Agreement and the liability of a Participant for such
payments shall be limited to the amount remaining of such encumbered funds. If funds
are not appropriated by the General Assembly, the federal government, the governing
authority of a Political Subdivision, as applicable, or otherwise become unavailable to
fund a Participation Agreement, a Participant may terminate the Participation
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Agreement to which it is a party immediately, in whole or in part, without further
liability in accordance with the provisions hereof; provided, however, that any amounts
owed to Contractor by the Participant under the applicable Participation Agreement at
the time of termination shall continue to be owing by the Participant following
termination of the Participation Agreement.
6. REPORTING - NOTIFICATION
A. Quarterly Reports.
In addition to any reports required pursuant to §16 or pursuant to any other Exhibit, for any
contract having a term longer than three months, Contractor shall submit, on a quarterly basis,
a written report specifying progress made for each specified performance measure and
standard in this Contract. Such progress report shall be in accordance with the procedures
developed and prescribed by the State, provided that the contents of such progress reports are
mutually agreed upon by State and Contractor. Progress reports shall be submitted to the State
not later than 5 Business Days following the end of each calendar quarter or at such time as
otherwise specified by the State.
B. Litigation Reporting
If Contractor is served with a pleading or other document in connection with an action before
a court or other administrative decision making body, and such pleading or document relates
to this Contract or may affect Contractor's ability to perform its obligations under this
Contract, Contractor shall, within 10 days after being served, notify the State of such action
and deliver copies of such pleading or document to the State's Principal Representative
identified on the Cover Page for this Contract.
C. Performance Outside the State of Colorado or the United States, §24-102-206, C.R.S.
To the extent not previously disclosed in accordance with §24-102-206, C.R.S., Contractor
shall provide written notice to the State, in accordance with §14 and in a form designated by
the State, within 20 days following the earlier to occur of Contractor's decision to perform
Services outside of the State of Colorado or the United States, or its execution of an
agreement with a Subcontractor to perform, Services outside the State of Colorado or the
United States. Such notice shall specify the type of Services to be performed outside the State
of Colorado or the United States and the reason why it is necessary or advantageous to
perform such Services at such location or locations, and such notice shall be a public record.
Knowing failure by Contractor to provide notice to the State under this section shall constitute
a Breach of Contract. This section shall not apply if the Contract Funds include any federal
funds.
7. CONTRACTOR RECORDS
A. Maintenance
For each Participant, the Contractor shall maintain a file of all documents, records,
communications, notes and other materials relating to the Work (the "Contractor Records").
Contractor Records shall include all documents, records, communications, notes and other
materials maintained by Contractor that relate to any Work performed by Subcontractors, and
Contractor shall maintain all records related to the Work performed by Subcontractors
required to ensure proper performance of that Work. Contractor shall maintain Contractor
Records until the last to occur of: (i) the date three years after the date this Contract expires
or is terminated, (ii) final payment under the Participation Agreement is made, (iii) the
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resolution of any pending Contract matters, or (iv) if an audit is occurring, or Contractor has
received notice that an audit is pending, the date such audit is completed and its findings have
been resolved (the "Record Retention Period").
B. Inspection
Contractor shall permit the State, the federal government, the Participants, and any other duly
authorized agent of a governmental agency to audit, inspect, examine, excerpt, copy and
transcribe Contractor Records during the Record Retention Period. Contractor shall make
Contractor Records available during normal business hours at Contractor's office or place of
business, or at other mutually agreed upon times or locations, upon no fewer than 2 Business
Days' notice from the State, unless the State determines that a shorter period of notice, or no
notice, is necessary to protect the interests of the State. Upon request, Contractor shall cause
its Third -Party Processor to provide access to a copy of its SSAE16 (type II) audit report to
the State, its auditors, and the Participants. The Third -Party Processor asserts that its SSAE16
(type II) is a trade secret and confidential commercial information and not a public record
under CORA. The SSAE 16 document will be available for review at a Contractor office in
Denver, CO during normal business hours.
C. Monitoring
The State, the federal government, the Participants, and any other duly authorized agent of a
governmental agency, in its discretion, may monitor Contractor's performance of its
obligations under this Contract and the Participation Agreements using procedures as
determined by the State. The State shall monitor Contractor's performance in a manner that
does not unduly interfere with Contractor's performance of the Work.
D. Final Audit Report
Contractor shall promptly submit to the State a copy of any final audit report of an audit
performed on Contractor's records that relates to or affects this Contract or the Work, whether
the audit is conducted by Contractor or a third party.
8. CONFIDENTIAL INFORMATION -STATE RECORDS
A. Confidentiality — State Agencies
Contractor shall keep confidential, and cause all Subcontractors to keep confidential, all State
Records, unless those State Records are publicly available. Contractor shall not, without prior
written approval of the State, use, publish, copy, disclose to any third party, or permit the use
by any third party of any State Records, except as otherwise stated in this Contract, permitted
by law or approved in writing by the State. Contractor shall provide for the security of all
State Confidential Information in accordance with all policies promulgated by the Colorado
Office of Information Security and all applicable laws, rules, policies, publications, and
guidelines. Contractor and its Subcontractors shall provide for the security of PCI according
to the most recently updated PCI Data Security Standard from the PCI Security Standards
Council. Contractor shall immediately forward any request or demand for State Records to
the State's Principal Representative.
B. Confidentiality — Political Subdivisions
Contractor shall keep all records and information belonging to a Participant confidential at
all times and comply with all laws and regulations concerning confidentiality of information.
Contractor shall provide for the security of all Participant confidential information in
accordance with all policies promulgated by the Colorado Office of Information Security and
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all applicable laws, rules, policies, publications, and guidelines. Confidential information of
the State or of any Participant shall not be distributed or sold to any third party or used by
Contractor, its Third -Party Processor, or any of their respective employees and agents in any
way, except as authorized by this Contract or approved in writing by the State or by the
Participant to whom the confidential information belongs. Contractor shall, and shall cause
its Third -Party Processor to, provide and maintain a secure environment that ensures
confidentiality of all State records and other confidential information wherever located.
Confidential information shall not be retained in any files or otherwise by Contractor, its
Third -Party Processor, or any of their respective employees or agents, except as permitted in
this Contract or approved in writing by the State or the Participant to whom the confidential
information belongs.
C. Other Entity Access and Nondisclosure Agreements
Contractor may provide State Records to its agents, employees, assigns and Subcontractors
as necessary to perform the Work, but shall restrict access to State Confidential Information
to those agents, employees, assigns and Subcontractors who require access to perform their
obligations under this Contract. Contractor shall ensure all such agents, employees, assigns,
and Subcontractors sign agreements containing nondisclosure provisions at least as protective
as those in this Contract, and that the nondisclosure provisions are in force at all times the
agent, employee, assign or Subcontractor has access to any State Confidential Information.
D. Use, Security, and Retention
Contractor shall use, hold, and maintain State Confidential Information in compliance with
any and all applicable laws and regulations only in facilities located within the United States,
and shall maintain a secure environment that ensures confidentiality of all State Confidential
Information. Upon the expiration or termination of this Contract, Contractor shall return State
Records and Participants' confidential information provided to Contractor or destroy such
records and certify to the State that it has done so, as directed by the State. If Contractor is
prevented by law or regulation from returning or destroying State Confidential Information,
Contractor warrants it will guarantee the confidentiality of, and cease to use, such State
Confidential Information.
E. Incident Notice and Remediation
If Contractor becomes aware of any Incident, Contractor shall notify the State within a
reasonable time after discovery, and cooperate with the State regarding recovery,
remediation, and the necessity to involve law enforcement, as determined by the State. Unless
Contractor can establish that Contractor and its Subcontractors are not the cause or source of
the Incident, Contractor shall be responsible for the cost of notifying each person who may
have been impacted by the Incident. After an Incident, Contractor shall take steps to reduce
the risk of incurring a similar type of Incident in the future as directed by the State, which
may include, but is not limited to, developing and implementing a remediation plan that is
approved by the State at no additional cost to the State. The State may adjust or direct
modifications to this plan in its sole discretion, and Contractor shall make all modifications
as directed by the State. If Contractor cannot produce its analysis and plan within the allotted
time, the State, in its discretion, may perform such analysis and produce a remediation plan,
and Contractor shall reimburse the State for the actual costs thereof. The State may, in its sole
discretion and at Contractor's sole expense, require Contractor to engage the services of an
independent, qualified, State -approved third party to conduct a security audit. Contractor
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shall provide the State with the results of such audit and evidence of Contractor's planned
remediation in response to any negative findings.
F. Data Protection and Handling
Contractor shall ensure that all State Records and Work Product in the possession of
Contractor or any Subcontractors are protected and handled in accordance with the
requirements of this Contract, including the requirements of any Exhibits hereto, at all times.
G. Safeguarding PII
If Contractor or any of its Subcontractors will or may receive PII under this Contract,
Contractor shall provide for the security of such PII, in a manner and form acceptable to the
State, including, without limitation, use of appropriate technology, security practices,
computer access security, data access security, data storage encryption, data transmission
encryption, security inspections, and audits. Contractor shall be a "Third -Party Service
Provider" as defined in §24-73-103(1)(i), C.R.S., and shall maintain security procedures and
practices consistent with §§24-73-101, et seq., C.R.S. In addition, as set forth in §24-74-102,
et. seq., C.R.S., Contractor, including, but not limited to, Contractor's employees, agents and
Subcontractors, agrees not to share any PII with any third parties for the purpose of
investigating for, participating in, cooperating with, or assisting with federal immigration
enforcement. If Contractor is given direct access to any State databases containing PII,
Contractor shall execute, on behalf of itself and its employees, the certification attached
hereto as Exhibit B on an annual basis. Contractor's duty and obligation to certify as set forth
in Exhibit B shall continue as long as Contractor has direct access to any State databases
containing PII. If Contractor uses any Subcontractors to perform services requiring direct
access to State databases containing PII, the Contractor shall require such Subcontractors to
execute and deliver the certification to the State on an annual basis, so long as the
Subcontractor has access to State databases containing PII.
9. CONFLICTS OF INTEREST
A. Actual Conflicts of Interest
Contractor shall not engage in any business or activities, or maintain any relationships that
conflict in any way with the full performance of the obligations of Contractor under this
Contract. Such a conflict of interest would arise when a Contractor or Subcontractor's
employee, officer or agent were to offer or provide any tangible personal benefit to an
employee of the State or a Participant, or any member of their immediate family or his or her
partner, related to the award of, entry into or management or oversight of this Contract or a
Participation Agreement.
B. Apparent Conflicts of Interest
Contractor acknowledges that, with respect to this Contract, even the appearance of a conflict
of interest shall be harmful to the State's interests. Absent the State's prior written approval,
Contractor shall refrain from any practices, activities or relationships that reasonably appear
to be in conflict with the full performance of Contractor's obligations under this Contract.
C. Disclosure to the State
If a conflict or the appearance of a conflict arises, or if Contractor is uncertain whether a
conflict or the appearance of a conflict has arisen, Contractor shall submit to the State a
disclosure statement setting forth the relevant details for the State's consideration. Failure to
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promptly submit a disclosure statement or to follow the State's direction in regard to the
actual or apparent conflict constitutes a Breach of Contract.
D. Contractor acknowledges that all State employees are subject to the ethical principles
described in §24-18-105, C.R.S. Contractor further acknowledges that State employees may
be subject to the requirements of §24-18-105, C.R.S. with regard to this Contract.
10. INSURANCE
Contractor shall obtain and maintain insurance as specified in this section at all times during the
term of this Contract. All insurance carriers providing insurance shall have a minimum insurance
rating of A or higher.
A. Workers' Compensation
Workers' compensation insurance as required by state statute, and employers' liability
insurance covering all Contractor or Subcontractor employees acting within the course and
scope of their employment.
B. General Liability
Commercial general liability insurance covering premises operations, fire damage,
independent contractors, products and completed operations, blanket contractual liability,
personal injury, and advertising liability with minimum limits as follows:
i. $1,000,000 each occurrence;
ii. $2,000,000 general aggregate;
iii. $2,000,000 products and completed operations aggregate; and
iv. $50,000 any one fire.
C. Automobile Liability
Automobile liability insurance covering any auto (including owned, hired and non -owned
autos) with a minimum limit of $1,000,000 each accident combined single limit.
D. Protected Information
Liability insurance covering all civil, regulatory, and statutory damages, contractual
damages, data breach management exposure, and all loss income or extra expense as a result
of actual or alleged breach, violation or infringement of a right to privacy, consumer data
protection law, confidentiality or other legal protection for personal information as well as
State Confidential Information and Participants' confidential information with minimum
limits as follows:
i. $2,000,000 each claim; and
ii. $5,000,000 general aggregate.
E. Professional Liability Insurance
Professional liability insurance covering any damages caused by an error, omission or any
negligent act with minimum limits as follows:
i. $5,000,000 each occurrence; and
ii. $5,000,000 general aggregate.
F. Crime Insurance
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Crime insurance including employee dishonesty coverage with minimum limits as follows:
i. $1,000,000 each occurrence; and
ii. $1,000,000 general aggregate.
G. Additional Insured
Contractor shall cause State to be an additional insured on all commercial general liability
policies (leases and construction contracts require additional insured coverage for completed
operations) required of Contractor.
H. Primacy of Coverage
Coverage required of Contractor shall be primary and noncontributory over commercial
general and auto insurance or self-insurance program carried by the State.
I. Cancellation
Contractor agrees to provide the State with 30 days' written notice in the event of cancellation
which results in non-compliance with the insurance requirements of this §10 and
documentation of replacement insurance shall be provided showing no lapse in coverage.
J. Subrogation Waiver
The general liability and auto liability insurance policies secured or maintained by Contractor
in relation to this Contract shall include clauses stating that each carrier shall waive all rights
of recovery under subrogation or otherwise against Contractor or the State, State Agencies,
Participants, their agencies, institutions, organizations, officers, agents, employees, and
volunteers.
K. Certificates
Contractor shall provide to the State certificates evidencing Contractor's insurance coverage
required in this Contract within 7 Business Days following the Effective Date. No later than
15 days after the expiration date of Contractor's coverage, Contractor shall deliver to the
State certificates of insurance evidencing renewals of coverage. At any other time during the
term, upon request by the State, Contractor shall, within 10 Business Days following the
request by the State, provide to the State standard certificates of insurance evidencing
Contractor's insurance coverage required in this Contract.
L. Contractor use of Self -Insurance, Deductible, and/or Coinsurance
Contractor may satisfy any or all of the insurance requirements in this Contract by use of self-
insurance, deductible, and/or a captive insurance company (and any rating requirements are
not applicable to Contractor's self-insurance or to policies issued by a captive insurance
company). The responsibility to fund any financial obligation for self-insurance and the
amount of any deductible are assumed by, for the account of, and at the sole risk of
Contractor. The application of coverage within this self-insurance, election not to insure,
and/or deductible is deemed covered in accordance with the policy language and/or forms set
forth in this Contract.
11. BREACH OF CONTRACT
In the event of a Breach of Contract, the aggrieved Party shall give written notice of breach to the
other Party. If the notified Party does not cure the Breach of Contract, at its sole expense, within
30 days after the delivery of written notice, the Party may exercise any of the remedies as described
in §12 for that Party. Notwithstanding any provision of this Contract to the contrary, the State, in
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its discretion, need not provide notice or a cure period and may immediately terminate this Contract
in whole or in part or institute any other remedy in this Contract in order to protect the public
interest of the State; or if Contractor is debarred or suspended under §24-109-105, C.R.S., the State,
in its discretion, need not provide notice or cure period and may terminate this Contract in whole
or in part or institute any other remedy in this Contract as of the date that the debarment or
suspension takes effect.
12. REMEDIES
A. State's Remedies
If Contractor is in breach under any provision of this Contract or any Participation Agreement
and fails to cure such breach, the State or the Participant, as the case may be, following the
notice and cure period set forth in §11, shall have all of the remedies listed in this section in
addition to all other remedies set forth in this Contract or at law. The State or the Participant
may exercise any or all of the remedies available to it, in its discretion, concurrently or
consecutively.
i. Termination for Breach of Contract
In the event of Contractor's uncured breach, the State may terminate this entire Contract
or any part of this Contract and the Participant may terminate the Participation
Agreement. Contractor shall continue performance of this Contract or the Participation
Agreement to the extent not terminated, if any.
a. Obligations and Rights
To the extent specified in any termination notice, Contractor shall not incur further
obligations or render further performance past the effective date of such notice,
and shall terminate outstanding orders and subcontracts with third parties.
However, Contractor shall complete and deliver to the State or the Participant all
Work not cancelled by the termination notice, and may incur obligations as
necessary to do so within this Contract's terms. At the request of the State or the
Participant, Contractor shall assign to the State all of Contractor's rights, title, and
interest in and to such terminated orders or subcontracts. Upon termination,
Contractor shall take timely, reasonable and necessary action to protect and
preserve property in the possession of Contractor but in which the State or the
Participant has an interest. At the State's or the Participant's request, Contractor
shall return materials owned by the State or the Participant in Contractor's
possession at the time of any termination. Contractor shall deliver all completed
Work Product and all Work Product that was in the process of completion to the
State at the State's request or to the Participant at the Participant's request.
b. Payments
Notwithstanding anything to the contrary, the Participant shall only pay
Contractor for accepted Work received as of the date of termination. If, after
termination by the Participant, the Participant agrees that Contractor was not in
breach or that Contractor's action or inaction was excusable, such termination
shall be treated as a termination in the public interest, and the rights and
obligations of the Parties shall be as if the Participation Agreement had been
terminated in the public interest under §2.E.
c. Damages and Withholding
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Notwithstanding any other remedial action by the State or the Participant,
Contractor shall remain liable for any damages sustained by the State or the
Participant in connection with any breach by Contractor, and the Participant may
withhold payment to Contractor for the purpose of mitigating the Participant's
damages until such time as the exact amount of damages due to the Participant
from Contractor is determined. The Participant may withhold any amount that
may be due Contractor as the Participant deems necessary to protect the
Participant against loss including, without limitation, loss as a result of
outstanding liens and excess costs incurred by the Participant in procuring from
third parties replacement Work as cover.
ii. Remedies Not Involving Termination
The State or the Participant, in their discretion, may exercise one or more of the
following additional remedies:
a. Suspend Performance
Suspend Contractor's performance with respect to all or any portion of the Work
pending corrective action as specified by the State or Participant without entitling
Contractor to an adjustment in price or cost or an adjustment in the performance
schedule. Contractor shall promptly cease performing Work and incurring costs
in accordance with the directive of the State or the Participant, and the State or
the Participant shall not be liable for costs incurred by Contractor after the
suspension of performance.
b. Withhold Payment
Withhold payment to Contractor until Contractor corrects its Work.
c. Deny Payment
Deny payment for Work not performed, or that due to Contractor's actions or
inactions, cannot be performed or if they were performed are reasonably of no
value to the State or the Participant; provided, that any denial of payment shall be
equal to the value of the obligations not performed.
d. Removal
Demand immediate removal, in writing, of any of Contractor's employees, agents,
or Subcontractors from the Work whom the State or the Participant deems
incompetent, careless, insubordinate, unsuitable, or otherwise unacceptable or
whose continued relation to this Contract is deemed by the State or the Participant
to be contrary to the public interest or the best interest of the State or the
Participant.
e. Intellectual Property
If any Work infringes, or if the State or Participant in their sole discretion
determines that any Work is likely to infringe, a patent, copyright, trademark,
trade secret or other intellectual property right, Contractor shall, as approved by
the State or Participant: (i) secure that right to use such Work; (ii) replace the
Work with non -infringing Work or modify the Work so that it becomes non -
infringing; or, (iii) remove any infringing Work and refund the amount paid for
such Work to the State or the Participant.
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B. Contractor's Remedies
If the State or the Participant is in breach of any provision of this Contract and do not cure
such breach, Contractor, following the notice and cure period in §11 and the dispute
resolution process in §13, where applicable, shall have all remedies available at law and
equity.
13. DISPUTE RESOLUTION
A. Initial Resolution
Except as herein specifically provided otherwise, disputes concerning the performance of this
Contract or a Participation Agreement which cannot be resolved by the designated Contract
representatives shall be referred in writing to a senior departmental management staff
member designated by the State and a senior manager designated by Contractor for
resolution.
B. Resolution of Controversies
If the initial resolution described in §13.A fails to resolve the dispute within 10 Business
Days, Contractor shall submit any alleged breach of this Contract by the State to the
Procurement Official of the State Agency named on the Cover Page of this Contract as
described in §24-102-202(3), C.R.S. for resolution in accordance with the provisions of (24-
106-109, C.R.S., and §§24-109-101.1 through 24-109-505, C.R.S., (the "Resolution
Statutes"), except that if Contractor wishes to challenge any decision rendered by the
Procurement Official, Contractor's challenge shall be an appeal to the Executive Director of
the Department of Personnel and Administration, or their delegate, under the Resolution
Statutes before Contractor pursues any further action as permitted by such statutes. Except as
otherwise stated in this Section, all requirements of the Resolution Statutes shall apply
including, without limitation, time limitations.
14. NOTICES AND REPRESENTATIVES
Each individual identified as a Principal Representative on the Cover Page for this Contract shall
be the principal representative of the designating Party. All notices required or permitted to be
given under this Contract shall be in writing, and shall be delivered (A) by hand with receipt
required, (B) by certified or registered mail to such Party's principal representative at the address
set forth below or (C) as an email with read receipt requested to the principal representative at the
email address, if any, set forth on the Cover Page for this Contract. If a Party delivers a notice to
another through email and the email is undeliverable, then, unless the Party has been provided with
an alternate email contact, the Party delivering the notice shall deliver the notice by hand with
receipt required or by certified or registered mail to such Party's principal representative at the
address set forth on the Cover Page for this Contract. Either Party may change its principal
representative or principal representative contact information, or may designate specific other
individuals to receive certain types of notices in addition to or in lieu of a principal representative
by notice submitted in accordance with this section without a formal amendment to this Contract.
Unless otherwise provided in this Contract, notices shall be effective upon delivery of the written
notice. The Participant's principal representative is provided in Section 5 of the Participation
Agreement.
15. RIGHTS IN WORK PRODUCT AND OTHER INFORMATION
A. Work Product
Not applicable.
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B. Exclusive Property of the State
Except to the extent specifically provided elsewhere in this Contract, all State Records,
documents, text, software (including source code), research, reports, proposals,
specifications, plans, notes, studies, data, images, photographs, negatives, pictures, drawings,
designs, models, surveys, maps, materials, ideas, concepts, know-how, and information
provided by or on behalf of the State to Contractor are the exclusive property of the State
(collectively, "State Materials"). Contractor shall not use, willingly allow, cause or permit
Work Product or State Materials to be used for any purpose other than the performance of
Contractor's obligations in this Contract without the prior written consent of the State. Upon
termination of this Contract for any reason, Contractor shall provide all Work Product and
State Materials to the State in a form and manner as directed by the State.
C. Exclusive Property of Contractor
Contractor retains the exclusive rights, title, and ownership to any and all pre-existing
materials owned or licensed to Contractor including, but not limited to, all pre-existing
software, licensed products, associated source code, machine code, text images, audio and/or
video, and third -party materials, delivered by Contractor under the Contract, whether
incorporated in a Deliverable or necessary to use a Deliverable (collectively, "Contractor
Property"). Contractor Property shall be licensed to the State as set forth in this Contract or a
State approved license agreement: (i) entered into as exhibits to this Contract; (ii) obtained
by the State from the applicable third -party vendor; or (iii) in the case of open -source
software, the license terms set forth in the applicable open -source license agreement.
16. STATEWIDE CONTRACT MANAGEMENT SYSTEM
If the maximum amount payable to Contractor under this Contract is $100,000 or greater, either
on the Effective Date or at any time thereafter, this section shall apply. Contractor agrees to be
governed by and comply with the provisions of §§24-106-103, 24-102-206, 24-106-106, and 24-
106-107, C.R.S. regarding the monitoring of vendor performance and the reporting of contract
performance information in the State's contract management system ("Contract Management
System" or "CMS"). Contractor's performance shall be subject to evaluation and review in
accordance with the terms and conditions of this Contract, Colorado statutes governing CMS, and
State Fiscal Rules and State Controller Policies.
17. GENERAL PROVISIONS
A. Assignment
Subject to §13 of the Terms and Conditions, Contractor's rights and obligations under this
Contract are personal and may not be transferred or assigned without the prior, written
consent of the State. Any attempt at assignment or transfer without such consent shall be
void. Any assignment or transfer of Contractor's rights and obligations approved by the State
shall be subject to the provisions of this Contract.
B. Subcontracts
Contractor shall not enter into any subcontract in connection with its obligations under this
Contract without the prior, written approval of the State. Contractor shall submit to the State
a copy of each such subcontract upon request by the State. All subcontracts entered into by
Contractor in connection with this Contract shall comply with all applicable federal and state
laws and regulations, shall provide that they are governed by the laws of the State of
Colorado, and shall be subject to all provisions of this Contract.
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C. Binding Effect
Except as otherwise provided in §17.A, all provisions of this Contract, including the benefits
and burdens, shall extend to and be binding upon the Parties' respective successors and
assigns.
D. Authority
Each Party represents and warrants to the other that the execution and delivery of this
Contract and the performance of such Party's obligations have been duly authorized.
E. Captions and References
The captions and headings in this Contract are for convenience of reference only, and shall
not be used to interpret, define, or limit its provisions. All references in this Contract to
sections (whether spelled out or using the § symbol), subsections, exhibits or other
attachments, are references to sections, subsections, exhibits or other attachments contained
herein or incorporated as a part hereof, unless otherwise noted.
F. Counterparts
This Contract may be executed in multiple, identical, original counterparts, each of which
shall be deemed to be an original, but all of which, taken together, shall constitute one and
the same agreement.
G. Entire Understanding
This Contract represents the complete integration of all understandings between the Parties
related to the Work, and all prior representations and understandings related to the Work, oral
or written, are merged into this Contract. Prior or contemporaneous additions, deletions, or
other changes to this Contract shall not have any force or effect whatsoever, unless embodied
herein.
H. Digital Signatures
If any signatory signs this Contract using a digital signature in accordance with the Colorado
State Controller Contract, Grant and Purchase Order Policies regarding the use of digital
signatures issued under the State Fiscal Rules, then any agreement or consent to use digital
signatures within the electronic system through which that signatory signed shall be
incorporated into this Contract by reference.
I. Modification
Except as otherwise provided in this Contract, any modification to this Contract shall only be
effective if agreed to in a formal amendment to this Contract, properly executed and approved
in accordance with applicable Colorado State law and State Fiscal Rules. Modifications
permitted under this Contract, other than contract amendments, shall conform to the policies
issued by the Colorado State Controller.
This Contract is also subject to modification as set forth in Sections 3 and 22.12 of the Terms
and Conditions, including any amendments thereto. Contractor shall provide prompt written
notice of any modification to the State. Upon receipt of such notice by the State, the Parties
shall mutually cooperate to execute an amendment to this Contract to incorporate a material
amendment to the Terms and Conditions (Exhibit D), Pricing Terms (Exhibit C), or any other
provision of this Contract; provided, however, that the State may terminate this Contract
without penalty in the event: (i) any modification (other than a modification to the Operating
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Rules) is not acceptable to the State or (ii) any modification requires the State or any
Participant to indemnify or hold harmless any party, limit liability, be governed by any venue
or choice of state law provision contrary to this Contract, waive the right to jury trial, agree
to binding arbitration, or that conflicts with or is prohibited by Colorado law.
J. Statutes, Regulations, Fiscal Rules, and Other Authority
Any reference in this Contract to a statute, regulation, State Fiscal Rule, fiscal policy or other
authority shall be interpreted to refer to such authority then current, as may have been
changed or amended since the Effective Date of this Contract.
K. External Terms and Conditions
Notwithstanding anything to the contrary herein, the State shall not be subject to any
provision included in any terms, conditions, or agreements appearing on Contractor's or a
Subcontractor's website or any provision incorporated into any click -through or online
agreements related to the Work unless that provision is specifically referenced in this
Contract.
L. Severability
The invalidity or unenforceability of any provision of this Contract shall not affect the validity
or enforceability of any other provision of this Contract, which shall remain in full force and
effect, provided that the Parties can continue to perform their obligations under this Contract
in accordance with the intent of this Contract.
M. Survival of Certain Contract Terms
Any provision of this Contract that imposes an obligation on a Party after termination or
expiration of this Contract shall survive the termination or expiration of this Contract and
shall be enforceable by the other Party.
N. Taxes
The State is exempt from federal excise taxes under I.R.C. Chapter 32 (26 U.S.C., Subtitle
D, Ch. 32) (Federal Excise Tax Exemption Certificate of Registry No. 84-730123K) and from
State and local government sales and use taxes under §§39-26-704(l), et seq., C.R.S.
(Colorado Sales Tax Exemption Identification Number 98-02565). The State shall not be
liable for the payment of any excise, sales, or use taxes, regardless of whether any political
subdivision of the state imposes such taxes on Contractor. Contractor shall be solely
responsible for any exemptions from the collection of excise, sales or use taxes that
Contractor may wish to have in place in connection with this Contract.
O. Third Party Beneficiaries
Except for a Participant under a Participation Agreement and the Parties' respective
successors and assigns described in § 17.A, this Contract does not and is not intended to
confer any rights or remedies upon any person or entity other than the Parties. Enforcement
of this Contract and all rights and obligations hereunder are reserved solely to the Parties and
Participants. Any services or benefits which third parties receive as a result of this Contract
are incidental to this Contract, and do not create any rights for such third parties.
P. Waiver
A Party's failure or delay in exercising any right, power, or privilege under this Contract,
whether explicit or by lack of enforcement, shall not operate as a waiver, nor shall any single
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or partial exercise of any right, power, or privilege preclude any other or further exercise of
such right, power, or privilege.
Q. CORA Disclosure
To the extent not prohibited by federal law, this Contract and the performance measures and
standards required under §24-106-107, C.R.S., if any, are subject to public release through
the CORA.
R. Standard and Manner of Performance
Contractor shall perform its obligations under this Contract in accordance with the highest
standards of care, skill and diligence in Contractor's industry, trade, or profession.
S. Licenses, Permits, and Other Authorizations
Contractor shall secure, prior to the Effective Date, and maintain at all times during the term
of this Contract, at its sole expense, all licenses, certifications, permits, and other
authorizations required to perform its obligations under this Contract, and shall ensure that
all employees, agents and Subcontractors secure and maintain at all times during the term of
their employment, agency or subcontract, all license, certifications, permits and other
authorizations required to perform their obligations in relation to this Contract.
T. Indemnification
i. General Indemnification
Contractor shall indemnify, save, and hold harmless the State, each Participant, their
employees, agents and assignees (the "Indemnified Parties"), against any and all costs,
expenses, claims, damages, liabilities, court awards and other amounts (including
attorneys' fees and related costs) incurred by any of the Indemnified Parties in relation
to; (i) any breach or misrepresentation by Contractor under the Contract; or (ii) the
negligence or willful misconduct of Contractor, or its employees, agents,
Subcontractors, or assignees in connection with this Contract.
ii. Participant Responsibility
Participant agrees to pay or reimburse Contractor from its Settlement Account for all:
(1) Chargebacks; (2) refunds; or (3) Card Organization Fines (as defined in the Terms
and Conditions) imposed on Contractor by the Card Organizations (as defined in the
Terms and Conditions) as a result of Participant's or Participant's employees, agents,
or a third party acting on Participant's behalf, actions or inactions related to the Services
provided to Participant under this Contract and the Merchant Services Agreement.
iii. Confidential Information Indemnification
Disclosure or use of State Confidential Information by Contractor in violation of §8
may be cause for legal action by third parties against Contractor, the State, the
Participants, or their respective agents. Contractor shall indemnify, save, and hold
harmless the Indemnified Parties, against any and all claims, damages, liabilities,
losses, costs, expenses (including attorneys' fees and costs) incurred by the State or
Participant in relation to any act or omission by Contractor, or its employees, agents,
assigns, or Subcontractors in violation of §8.
iv. Intellectual Property Indemnification
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Contractor shall indemnify, save, and hold harmless the Indemnified Parties, against
any allegation that materials or Services provided by the Contractor under this Contract
infringes or violates a patent, copyright, trademark, trade secret, or any other
intellectual property right. Notwithstanding the foregoing, the Contractor shall have no
liability for such infringements or violations based on: (i) any unauthorized alteration
or modification of the materials and Services by any party other than the Contractor;
(ii) use of the materials or Services in any manner other than as permitted under this
Contract; (iii) use of the materials or Services in combination with any equipment or
software not authorized by Contractor or reasonably intended for use with the materials
or Services; or (iv) Contractor's compliance with specific information or instructions
provided to the Contractor by the State, State Agencies or Political Subdivisions. In no
event will Contractor be liable for any indirect, special consequential or punitive
damages, whether or not the likelihood of such damages was known to the Contractor,
and regardless of the form of the claim or action or the legal theory on which it is based.
v. Accessibility Indemnification
Contractor shall indemnify, save, and hold harmless the State, the Participants, their
employees, agents and assignees (collectively, the "Indemnified Parties"), against any
and all costs, expenses, claims, damages, liabilities, court awards and other amounts
(including attorneys' fees and related costs) incurred by any of the Indemnified Parties
in relation to Contractor's failure to comply with §§24-85-101, et seq., C.R.S., or the
Accessibility Standards for Individuals with a Disability as established by the Office of
Information Technology pursuant to Section §24-85-103 (2.5), C.R.S.
U. Accessibility
i. Contractor shall comply with and the Work Product provided under this Contract shall
be in compliance with all applicable provisions of §§24-85-101, et seq., C.R.S., and
the Accessibility Standards for Individuals with a Disability, as established by the
Governor's Office Of Information Technology (OIT), pursuant to Section §24-85-103
(2.5), C.R.S. Contractor shall also comply with all State of Colorado technology
standards related to technology accessibility and with Level AA of the most current
version of the Web Content Accessibility Guidelines (WCAG), incorporated in the
State of Colorado technology standards.
ii. The State may require Contractor's compliance to the State's Accessibility Standards
to be determined by a third party selected by the State to attest to Contractor's Work
Product and software is in compliance with §§24-85-101, et seq., C.R.S., and
the Accessibility Standards for Individuals with a Disability as established by the Office
of Information Technology pursuant to Section §24-85-103 (2.5), C.R.S.
18. COLORADO SPECIAL PROVISIONS (COLORADO FISCAL RULE 3-3)
These Special Provisions apply to all contracts except where noted in italics.
A. STATUTORY APPROVAL. §24-30-202(1), C.R.S.
This Contract shall not be valid until it has been approved by the Colorado State Controller
or designee.
B. FUND AVAILABILITY. §24-30-202(5.5), C.R.S.
Financial obligations of the State payable after the current State Fiscal Year are contingent
upon funds for that purpose being appropriated, budgeted, and otherwise made available.
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C. GOVERNMENTAL IMMUNITY.
Liability for claims for injuries to persons or property arising from the negligence of the State,
its departments, boards, commissions committees, bureaus, offices, employees and officials
shall be controlled and limited by the provisions of the Colorado Governmental Immunity
Act, §24-10-101, et seq., C.R.S.; the Federal Tort Claims Act, 28 U.S.C. Pt. VI, Ch. 171 and
28 U.S.C. 1346(b), and the State's risk management statutes, §§24-30-1501, et seq. C.R.S.
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, protections, or other provisions,
contained in these statutes.
D. INDEPENDENT CONTRACTOR.
Contractor shall perform its duties hereunder as an independent contractor and not as an
employee. Neither Contractor nor any agent or employee of Contractor shall be deemed to
be an agent or employee of the State. Contractor shall not have authorization, express or
implied, to bind the State to any agreement, liability or understanding, except as expressly
set forth herein. Contractor and its employees and agents are not entitled to
unemployment insurance or workers compensation benefits through the State and the
State shall not pay for or otherwise provide such coverage for Contractor or any of its
agents or employees. Contractor shall pay when due all applicable employment taxes
and income taxes and local head taxes incurred pursuant to this Contract. Contractor
shall (i) provide and keep in force workers' compensation and unemployment
compensation insurance in the amounts required by law, (ii) provide proof thereof when
requested by the State, and (iii) be solely responsible for its acts and those of its
employees and agents.
E. COMPLIANCE WITH LAW.
Contractor shall comply with all applicable federal and State laws, rules, and regulations in
effect or hereafter established, including, without limitation, laws applicable to
discrimination and unfair employment practices.
F. CHOICE OF LAW, JURISDICTION, AND VENUE.
Colorado law, and rules and regulations issued pursuant thereto, shall be applied in the
interpretation, execution, and enforcement of this Contract. Any provision included or
incorporated herein by reference which conflicts with said laws, rules, and regulations shall
be null and void. All suits or actions related to this Contract shall be filed and proceedings
held in the State of Colorado and exclusive venue shall be in the City and County of Denver.
G. PROHIBITED TERMS.
Any term included in this Contract or any exhibit thereto that requires the State to indemnify
or hold Contractor harmless; requires the State to agree to binding arbitration; limits
Contractor's liability for damages resulting from death, bodily injury, or damage to tangible
property; or that conflicts with this provision in any way shall be void ab initio. Nothing in
this Contract shall be construed as a waiver of any provision of §24-106-109, C.R.S.
H. SOFTWARE PIRACY PROHIBITION.
State or other public funds payable under this Contract shall not be used for the acquisition,
operation, or maintenance of computer software in violation of federal copyright laws or
applicable licensing restrictions. Contractor hereby certifies and warrants that, during the
term of this Contract and any extensions, Contractor has and shall maintain in place
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appropriate systems and controls to prevent such improper use of public funds. If the State
determines that Contractor is in violation of this provision, the State may exercise any remedy
available at law or in equity or under this Contract, including, without limitation, immediate
termination of this Contract and any remedy consistent with federal copyright laws or
applicable licensing restrictions.
I. EMPLOYEE FINANCIAL INTEREST/CONFLICT OF INTEREST. §§24-18-201 and
24-50-507, C.R.S.
The signatories aver that to their knowledge, no employee of the State has any personal or
beneficial interest whatsoever in the service or property described in this Contract. Contractor
has no interest and shall not acquire any interest, direct or indirect, that would conflict in any
manner or degree with the performance of Contractor's services and Contractor shall not
employ any person having such known interests.
J. VENDOR OFFSET AND ERRONEOUS PAYMENTS. §§24-30-202(1) and 24-30-
202.4, C.R.S.
[Not applicable to intergovernmental agreements] Subject to §24-30-202.4(3.5), C.R.S., the
State Controller may withhold payment under the State's vendor offset intercept system for
dells owed to State agencies for: (i) unpaid child support debts or child support arrearages;
(ii) unpaid balances of tax, accrued interest, or other charges specified in §§39-21-101, et
seq., C.R.S.; (iii) unpaid loans due to the Student Loan Division of the Department of Higher
Education; (iv) amounts required to be paid to the Unemployment Compensation Fund; and
(v) other unpaid debts owing to the State as a result of final agency determination or judicial
action. The State may also recover, at the State's discretion, payments made to Contractor in
error for any reason, including, but not limited to, overpayments or improper payments, and
unexpended or excess funds received by Contractor by deduction from subsequent payments
under this Contract, deduction from any payment due under any other contracts, grants or
agreements between the State and Contractor, or by any other appropriate method for
collecting debts owed to the State.
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Exhibit A
Scope of Work
1.1 General Program -Related Duties and Provisions
1.1.1 Contractor shall ensure that all pricing in the Contract will apply for all government
entities utilizing the program.
1.1.2 Contractor shall provide acceptance and processing channels for Visa, MasterCard,
American Express (where applicable), Discover and Diners Club cards.
1.1.3 For State Agencies, gross sales shall be deposited to the Treasury's designated bank
accounts. All fees and adjustments shall be settled as separate transactions.
1.2 Authorization and Capture
1.2.1 Contractor shall support the following authorization methods:
a) Telephone;
b) Swipe card terminal;
c) PC dial -up;
d) PC through the Internet;
e) POS over the Internet, with dial -up as backup;
f) Online gateway processors; and
g) Debit (PIN and PIN -less).
1.2.2 Contractor shall be able to support, at a minimum, the following capture methods used
by various Participants:
a) Point of Sale (Swipe Terminals);
b) Point of Sale Chip EVM;
c) Point of Sale NFV;
d) Mobile Point of Sale Terminals (Wireless);
e) Internet Capture Systems;
f) Interactive Voice Response (IVR) Systems;
g) Transactions submitted directly to Contractors Third -Party Gateways;
h) Manually Keyed Transactions; and
i) Web -based Electronic Check Processing.
1.2.3 Contractor shall provide a method for Merchant to obtain an authorization approval code
for all transactions. If Merchant fails to request an authorization code for a sales
transaction, then Contractor may do a Chargeback.
1.2.4 Authorization approvals shall remain valid for a minimum of 7 days, regardless of card
type and processing method.
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1.3 Settlement
1.3.1 Contractor is responsible for, and shall provide, settlement funds to the Merchant.
1.3.2 All settlement transactions shall be processed and transferred to the Merchant within 2
Business Days from the time a batch is received.
1.3.3 Contractor shall be responsible for all funds held in reserve that are derived from
settlement.
1.3.4 Contractor shall only be required to settle card transactions for card types specified in the
Contract.
1.3.5 All settlements for Visa, MasterCard, Discover and American Express card transactions
shall be net of credits, summary adjustments, applicable discount fees when due,
Chargebacks, and any other amounts due to the Merchant.
1.4 Ticket Retrieval and Chargebacks
1.4.1 Contractor shall provide a designated person to assist in managing Chargebacks.
1.4.2 An online system for managing Chargebacks shall be provided.
1.4.3 Chargebacks shall be processed within 5 Business Days.
1.4.4 Ticket Retrieval requests shall be processed within 2 Business Days.
1.5 Debit Card Processing
1.5.1 Contractor shall have the ability to process online debit transactions.
1.5.2 Contractor shall support both PIN and PIN -less debits.
1.6 Equipment/Software Deployment, Supplies and Services
1.6.1 Contractor shall be able to service all of the equipment listed in Exhibit C (the "Merchant
Equipment List") or be able to provide comparable equipment.
1.6.2 All equipment that Contractor provides under the Contract are available for purchase.
1.6.3 All equipment provided under the Contract shall contain a 1 year warranty and be in good
working order and free of defects. Additional warranties, if any, shall originate from the
third -party provider or manufacturer.
1.6.4 Contractor shall provide replacement equipment for any Merchant -owned terminals that
become inoperable. The Merchant shall be responsible for all fees related to the replaced
equipment, including shipping fees and monthly rental fees.
1.6.5 Contractor shall offer supplies that enhance the productivity or usability of the equipment.
1.6.6 Contractor may also provide, at the Merchant's discretion, wireless data communication
services. Such services shall require the use of wireless POS terminals and accessories,
as well as any applicable software, all of which may be provided by Contractor.
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1.6.7 Point of Sale (POS) Terminals
a) Contractor shall facilitate injection of new derived key encryption packages onto
Participant owned or leased terminals.
b) Contractor shall accept payments via phone -lone modem transmissions, and shall
provide multiple terminal options for phone -line transmission.
c) Contractor shall provide end -to -end encryption (E2EE) solutions for mobile card
acceptance.
d) Contractor shall support EMV and contactless payments for all card -present
environments.
1.6.8 Third -Party Gateway Interaction
a) Contractor shall provide a payment gateway application program interface (API) for
coding.
b) Contractor shall provide certification and support (SDK) to these vendors in coding
to the API.
c) Contractor shall provide non-exclusive tokenization options to manage recurring
payments.
d) In addition to credit card acceptance, all API platforms shall support electronic check
acceptance.
e) Contractor shall provide test environments with 24/7/365 accessibility, unless
notification is provided, for development.
I) Contractor shall provide all vendors code to the Contractor's payment gateway API.
1.7 System Capabilities
1.7.1 Contractor shall have the capability to connect to networks and Third -Party Processors
already in use. This is particularly important for Participants that process payment card
transactions through online, a POS system, or using PC software.
1.7.2 Contractor's processing software shall support Purchasing Card Levels II and III.
1.8 Security and Payment Card Industry Data Security Standards (PCI DSS)
Contractor shall comply with the following standards:
1.8.1 Contractor shall be in compliance with all current PCI 3.2 standards, including
multifactor authentication and TLS 1.2 requirements. In addition, Contractor shall be
actively working towards becoming compliant with PCI 4.0 standards;
1.8.2 Contractor shall only provide PCI compliant equipment to Participants;
1.8.3 Contractor shall ensure that cardholder information relating to transactions (e.g.
authorizations, settlements, reversals, etc.) is stored appropriately;
1.8.4 Contractor shall ensure that cardholder transactions are transmitted in accordance with
PCI requirements;
1.8.5 Contractor shall provide its attestation of PCI compliance to Treasury on an annual basis,
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or as otherwise determined by Treasury;
1.8.6 Contractor shall describe its organization's philosophy for categorizing the State of
Colorado at a particular level under the PCI DSS;
1.8.7 Contractor shall provide a strong method of securing data (e.g., tokenization, end -to -end
encryption, point-to-point encryption);
1.8.8 Contractor shall assist Merchants with the preparation of all PCI DSS required reports;
and
1.8.9 Contractor shall assist Merchants to remedy any PCI DSS deficiencies as needed.
1.9 Disaster Recovery
Contractor shall maintain a set of documents, instructions, and procedures which enable the
Contractor to respond to accidents, disaster, emergencies, or threats without any hindrance to
their business continuity.
1.10 Merchant and Online Reporting and System Access
1.10.1 Contractor shall be responsible for generating and distributing reports, which shall
include, but not be limited to, the following:
a) Monthly Merchant Report: This report shall include transaction detail, interchange
amounts, fees, and downgrades, etc.;
b) Quarterly Merchant Report: This report shall provide summary detail of the quarterly
Merchant activity;
c) Ad -hoc Report: This report shall consist of any requested, and available information;
d) Annual Report: This report shall consist of monthly and quarterly data, and any
additional information as requested by Treasury; and
e) Any other reports required by the Merchant or Treasury.
1.10.2 Contractor shall ensure that users have system access, which shall include, but not be
limited to the following:
a) Transaction detail;
b) Chargebacks (if any);
c) All Fee information; and
d) Details of any account debits.
1.11 Implementation and Conversion
Treasury anticipates that current Merchants will be converted to the new Contract program by
the Contract Performance Beginning Date provided on the Contract's Cover Page. Therefore,
Contractor will be required to do the following in order to ensure a smooth transition:
1.11.1 Assign a Dedicated Project Manager;
1.11.2 Review current equipment and arrange for any replacement equipment;
1.11.3 Work with all Participants to obtain access to online system; and
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1.11.4 Demonstrate and train all Participants on use of online system.
1.12 Ecommerce, Online Payment Processing and New Technology
1.12.1 Contractor shall provide a secure online system for payment processing and reporting.
1.12.2 Contractor shall provide Participants with the ability to continue the use of Clover.
1.123 New Technology: Contractor shall provide new technology under the Contract at any
point during its Term in order for Treasury to obtain new products and services, not
already contained in the Contract, provided such technology and services are within the
scope of the Contract and are necessary to ensure continuity of the program. If new
technology and services are added to the Contract, then Treasury shall negotiate any
additional cost or fees at the time of need.
1.13 Customer Service and Quality
Contractor shall provide best -in -class customer service necessary to ensure efficient, supportive
Merchant card services operations. Contractor shall perform all necessary customer service, as
outlined herein, and as otherwise may be reasonably necessary. This includes, but is not limited
to, the following:
1.13.1 Providing phone, email, and web -based chat support from 8:00 a.m. to 5:00 p.m.,
Mountain Time, Monday through Friday, excluding State holidays.
1.13.2 Providing Merchants with a voice messaging system during times that the call center is
unavailable.
1.133 Utilizing a customer authentication protocol to prevent unauthorized account access.
1.13.4 Providing staff who can communicate in English and if available, Spanish.
1.13.5 Providing training for all customer service representatives to ensure staff has ample
knowledge of each Merchant account.
1.13.6 Providing a toll -free Help Desk number for equipment issues, funding, voice
authorizations, supplies, checkbooks, and general questions.
1.13.7 Providing technical support to assist with best practices and setting up on-line payment
processing.
1.13.8 Responding to all telephone calls and emails within 1 Business Day of receipt.
1.13.9 Establishing an escalation protocol, to be approved by Treasury, for the quick resolution
of customer complaints and difficult issues.
1.14 Client Services
1.14.1 Key Personnel
a) Contractor shall designate a dedicated team of Key Personnel to serve Treasury and
each Merchant. The team shall include:
i.) An Account Manager, who shall be:
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Jessie Breneman
Merchant Services Account Manager
Wells Fargo Merchant Services
1 Western Maryland Parkway
Hagerstown, Maryland 21740
Phone: (240) 313-1141
Email: Jessica.Breneman@wellsfargomerchantservicesllc.com
ii.) A Senior Account Manager, who shall be:
Patty White
Wells Fargo Merchant Services
5700 DTC Parkway
Greenwood Village, Colorado 80111
Email: Patty.White@wellsfargo.com
iii.) An eReceivables Consultant who shall be:
Brian McFadden
Wells Fargo Merchant Services
1700 Lincoln St, 7th Floor
Denver, Colorado 80203
Email: Brian.Mcfadden@wellsfargo.com
; and
iv.) A Relationship Manager, who shall be:
Kevin Garrow
Wells Fargo
1700 Lincoln St, 9t Floor
Denver, Colorado 80203
Email: Kevin.M.Garrow@wellsfargo.com
b) Changes in Control, Organization or Key Personnel
i.) In the event of any change in the majority ownership, control, or business
structure of Contractor, or of any other material change in Contractor's
business, partnership or corporate organization, Contractor shall immediately
notify Treasury of such change in writing. Contractor agrees to promptly
provide Treasury with such additional information as may be requested.
ii.) Contractor shall notify each Merchant of any proposed changes to Key
Personnel prior to implementing such changes. Contractor will notify each
Merchant in writing that changes have been made, within 2 calendar days after
implementing such changes.
iii.) In the event of any changes to Key Personnel, Contractor shall immediately
designate interim Key Personnel reasonably acceptable to Treasury and,
within 6 months, shall designate permanent Key Personnel.
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1.14.2 Contractor shall consult with Treasury regarding the following:
a) Merchant performance and operations;
b) Attending meetings as requested;
c) Being available via phone and/or email between the hours of 8:00 a.m. and 5:00 p.m.,
Mountain Time, Monday through Friday, State of Colorado holidays excluded; and
d) Providing Merchant files, records, documents and data that are in Contractor's
possession and control, upon request.
1.15 Performance Standards
Contractor shall adhere to the following Key Performance Measures:
1.15.1 Authorization System Availability — 99.95% net of scheduled outages 24 hours a day,
365 days a year.
1.15.2 DDA (including ACH) Funding File Timelines
a) 99.5% delivered to Contractor settlement account next Business Day.
b) 99.5% delivered to non -Contractor settlement account second Business Day.
1.15.3 Statement Accuracy — 95% of total number of statements are accurate.
1.15.4 Chargeback Timeliness — 99% processed in 5 Business Days.
1.15.5 Retrieval Timeliness — 98% processed in 2 Business Days.
1.16 Merchant Education and Resources
1.16.1 Contractor shall provide webinars to assist in onboarding new entities.
1.16.2 Contractor shall provide continuing educational webinars to all users on PCI DSS
compliance.
1.16.3 Online FAQs specific to Merchant topics (i.e. Chargebacks, ticket retrieval, etc.).
1.17 Participation Agreements
1.17.1 Participation. Use of the Contract by State Agencies and Political Subdivisions is subject
to the approval of Treasury. Issues of interpretation and eligibility for participation are solely
within the authority of Treasury.
1.17.2 Parties to a Participation Agreement. State Agencies and Political Subdivisions wishing
to obtain Services available under this Contract shall enter into a separate Participation
Agreement with Contractor, substantially in the form of Exhibit E. The terms and conditions of
the Contract shall apply to all Participants executing a Participation Agreement.
1.17.3 Term of Participation Agreements. A Participation Agreement between Contractor and
a Participant shall be effective upon signature of the parties thereto, approval by Treasury, and
such other approvals as may be required by the governing authority of the Participant. All
Participation Agreements shall terminate upon the termination of the Contract, unless sooner
terminated under the terms specified therein. Contractor shall complete its obligations described
Exhibit A Page 7 of 9
DocuSign Envelope ID: C5ABA83B-05E7-4D18-B035-79A7A5967AEE
in a Participation Agreement prior to the termination of the Participation Agreement. A
Participant shall compensate the Contractor for all obligations completed in accordance with its
specifications during the term of the Participation Agreement. A Participant shall not be liable to
compensate the Contractor for any work performed after the termination of the Participation
Agreement to which such Participant is a party.
1.17.4 Liability for Payment Obligations. Each Participant shall be solely liable with respect to
payments due and other obligations under the Participation Agreement to which it is a party and
neither Treasury nor any other Participant shall have any obligations or liability under such
Participation Agreement.
1.17.5 Accounts. Each Participant will be required to establish a Settlement Account, as
specified in the Terms and Conditions. The Contractor shall transfer all credits or other payments
collected from third parties on behalf of a Participant into the Settlement Account established by
such Participant. Under Section 15 of the Terms and Conditions, the Contractor has the right to
establish a Reserve Account for a Participant to help mitigate Contractor's risk exposure under
the Participation Agreement to which the Participant is a party. In such event, the Participant
shall be obligated to fund such Reserve Account in accordance with the requirements of Section
15 of the Terms and Conditions.
1.17.6 Performance Issues. Within 20 calendar days of the receipt of written notice from a
Participant identifying one or more performance issues, the Contractor shall meet with the
Participant to resolve such issues. The Participant shall have the authority and discretion to
resolve performance issues arising under the Participation Agreement to which the Participant is
a party. Failure by the Contractor to maintain satisfactory performance after the receipt of notice
from the Participant and the opportunity to cure in accordance with §11 of the Contract shall
constitute a breach of such Participation Agreement.
1.17.7 Remedies. If the Contractor is in breach under any provision of a Participation
Agreement, the Participant to the Participation Agreement shall have all of the remedies listed in
§12(A) of the Contract, in addition to all other remedies set forth in other sections of the Contract,
with respect to such Participation Agreement. A Participant may exercise any or all of the
remedies available to it, in its sole discretion, concurrently or consecutively.
1.17.8 Communications. Contact information for Contractor's support staff are set forth in
Section 1.14 of this Exhibit A. Contractor shall provide and maintain current contact information
for support staff throughout the term of the Contract, which may be used by Participants for
notices, inquiries or other communications. Contractor may change contact information for its
support staff upon 20 calendar days prior written notice to Treasury and each Participant,
pursuant to §14 of the Contract and Section 5 of the Participation Agreement.
1.17.9 Termination by Treasury. Treasury may terminate any Participation Agreement and the
right of the Participant thereto to participate in the Contract if Treasury determines that it is in
the best interests of the State of Colorado, including without limitation, in the event a
Participant:
i. fails to comply with the terms and conditions of the Contract or the Participation
Agreement;
ii. facilitates credit card transaction fraud;
Exhibit A Page 8 of 9
DocuSign Envelope ID: C5ABA83B-05E7-4D18-B035-79A7A5967AEE
iii fails to administer credit card transactions in accordance with the terms of the
Contract; or
iv. permits or facilitates operational defects in its administration of credit card
transactions.
The State shall provide 20 days prior written notice of termination to the Participant and
Contractor, in accordance with §14 of the Contract and Section 5 of the Participation
Agreement.
1.18 Disaster Recover — Business Continuity Plan
The Contractor has commercially reasonable procedures in place to prevent an interruption of
service delivery under the Contract and a commercially reasonable disaster recovery — business
continuity plan in effect in the event of a disaster. Such plans shall be tested by Contractor on an
annual basis during each State Fiscal Year of the Contract term, at a minimum. Contractor shall
provide the State with an initial overview of such plans, and annual updates and testing results
thereafter at least 30 days prior to the anniversary date of this Contract.
1.19 Termination
In the event the Contract or any Participation Agreement is terminated, with or without cause,
the Contractor shall promptly remit to the Participant(s) affected by such termination all
Contract Funds in the Contractor's possession or custodianship and shall provide the State and
the Participant with a complete accounting of any pending sales upon termination of the
Contract or any Participation Agreement.
Exhibit A Page 9 of 9
DocuSign Envelope ID: C5ABA$3B-05E7-4O18-8035-79A7A5967AEE
EXHIBIT B-PII CERTIFICATIONS
STATE OF COLORADO
THIRD PARTY ENTITY / ORGANIZATION CERTIFICATION FOR ACCESS TO
PII THROUGH A DATABASE OR AUTOMATED NETWORK
I. Pursuant to § 24-74-105, C.R.S., I, Stacey Anderson on behalf of Wells Fargo
Merchant Services, LLC (the "Organization"), hereby certify under the penalty of perjury
that the Organization has not and will not use or disclose any Personal Identifying
Information, as defined by § 24-74-102(1), C.R.S., for the purpose of investigating for,
participating in, cooperating with, or assisting Federal Immigration Enforcement, including
the enforcement of civil immigration laws, and the Illegal Immigration and Immigrant
Responsibility Act, which is codified at 8 U.S.C. §§ 1325 and 1326, unless required to do so
to comply with Federal or State law, or to comply with a court -issued subpoena, warrant or
order.
I hereby represent and certify that I have full legal authority to execute this certification on
behalf of the Or argzg fig..
Signature: �+ atiu
b'
8ac.o5a a�l7oaaFo...
Printed Name: Stacey Anderson
Title: vice President
Date:
12/1/2023
II. Pursuant to § 24-74-105, C.R.S., I, Stacey Anderson , on behalf of Wells Fargo Bank,
N. A. (the "Organization II"), hereby certify under the penalty of perjury that the
Organization II has not and will not use or disclose any Personal Identifying Information,
as defined by § 24-74-102(1), C.R.S., for the purpose of investigating for, participating in,
cooperating with, or assisting Federal Immigration Enforcement, including the enforcement
of civil immigration laws, and the Illegal Immigration and Immigrant Responsibility Act,
which is codified at 8 U.S.C. §§ 1325 and 1326, unless required to do so to comply with
Federal or State law, or to comply with a court -issued subpoena, warrant or order.
I hereby represent and certify that I have full legal authority to execute this certification on
behalf of the Organizatio� Js�9,edby:
Signature: ,--.9,314,071544r3
f atd�,YiO�,
Printed Name: Stacey Anderson r'''
Title: vice President
Date: 12/1/2023
Exhibit B Page 1 of 1
DocuSign Envelope ID: C5ABA83B-05E7-4D18-B035-79A7A5967AEE
Exhibit E
State of Colorado
Department of Treasury
Merchant Services Participation Agreement
This Participation Agreement (Participation Agreement) is made and entered into by and among Wells
Fargo Merchant Services, LLC, Wells Fargo Bank, N.A. (collectively, the Contractor), and
(Participant).
The parties agree as follows:
1. Background
1.1. The State of Colorado, acting by and through the Department of Treasury (State), has entered
into a State of Colorado Contract, having an Effective Date of , with Contractor
to process credit card transactions or merchant services on behalf of State Agencies and Political
Subdivisions (MS Contract). Capitalized terms used but not defined in this Participation
Agreement shall be defined in the MS Contract.
1.2. Pursuant to §§ 24-19.5-104 and 24-110-201, et seq., C.R.S., and consistent with the MS Contract,
State Agencies and Political Subdivisions (each a Participant) wishing to obtain services and
goods under the MS Contract may enter into a participating agreement with Contractor.
Participants new to the MS Contract after March 1, 2024 will also be required to complete a
Merchant Processing Application and Confirmation Page, as provided in the MS Contract.
1.3. State Agencies and Political Subdivisions are exempt from federal income taxes under Internal
Revenue Code, Title 26, §115.
1.4. The Participant has the authority to enter into this Participation Agreement under the MS
Contract and has obtained all required approvals, clearances and coordination from and with
appropriate agencies.
1.5. Funds have been budgeted, appropriated and otherwise made available and a sufficient
unencumbered balance thereof remains available for payment.
2. Participation Terms and Conditions
2.1. This Participation Agreement is issued under and subject to the terms and conditions of the MS
Contract, including any and all Exhibits, schedules and attachments thereto, as may be
amended from time to time.
2.2. All parties agree to adhere to and be bound by the terms and conditions of the MS Contract, as
may be amended.
Page 1 of 6
DocuSign Envelope ID: C5ABA83B-05E7-4D18-6035-79A7A5967AEE
2.3. Commencing on the Effective Date of this Participation Agreement (as hereinafter provided),
Contractor shall provide to the Participant credit card processing services and the equipment
set forth in Exhibit C to the MS Contract. The Participant agrees to use the credit card
processing equipment only for purposes set forth herein and in the MS Contract.
2.4. Contractor shall complete the work described in this Participation Agreement in accordance
with the terms and conditions herein and in the MS Contract, including any and all Exhibits.
2.5. The parties acknowledge and agree that participation in the MS Contract is limited to State
Agencies and Political Subdivisions of the State of Colorado.
3. Fees To Be Paid to Contractor
3.1. Participant shall pay Contractor from Contract Funds for Services and Goods provided to and
accepted by the Participant under this Participation Agreement, using the methods set forth in
§5(B) of the MS Contract. All fees charged by Contractor shall be determined in accordance
with the prices and rates set forth in Exhibit C to the MS Contract.
3.2. Participant shall establish a separate Settlement Account for deposits and fee payments
attributable to the Participant. Amounts due to Contractor by Participant under this
Participation Agreement shall be debited monthly from Participant's Settlement Account unless
a different method of payment is set forth in this Participation Agreement and approved by the
State.
3.3. Participant understands that under § 15 of the Terms and Conditions, as amended, Contractor
has the right to fund a Reserve Account from Participant's revenues to cover Chargebacks,
adjustments, fees, Card Organization Fines and any penalties, and other charges due under
Exhibit C to the MS Contract.
3.4. Under no circumstances shall the State be responsible to Contractor or any other person or
entity for any loss, liability, deposit, fee or credit card transaction which is attributable to the
Participant.
4. Effective Date and Termination
4.1. Effective Date. This Participation Agreement shall become effective on the date it is signed by
Contactor and Participant and approved by the State and such other approvers as may be
required under applicable law. In the event that the Effective Date is prior to March 1, 2024,
Contractor's services under this Participation Agreement shall commence on March 1, 2024.
4.2. This Participation Agreement shall remain in full force and effected until terminated as
provided in this Section 4, the MS Contract, or upon termination of the MS Contract.
Page 2 of 6
DocuSign Envelope ID: C5ABA83B-05E7-4D18-B035-79A7A5967AEE
4.3. If Participant intends to terminate its participation in the MS Contract, it shall notify the State in
writing, in accordance with §14 of the MS Contract, at least one (1) calendar month prior to the
effective date of the termination. Participant shall be responsible for returning to Contractor
equipment provided by Contractor under this Participation Agreement and settling its
Settlement Account with Contractor. In the event Contractor has funded a Reserve Account
with respect to this Participation Agreement, the Reserve Account shall be settled in
accordance with § 15 of the Terms and Conditions.
4.4. Participant or Contractor may terminate this Participation Agreement at any time by giving the
other party thirty (30) days prior written notice.
4.5. In the event of non-payment by Participant of amounts due under this Participation Agreement
for forty-five (45) days or more, Contractor may cease processing transactions after fifteen (15)
days prior written notice to the Participant.
4.6. The State may terminate the Participant's participation in the MS Contract if the State
determines that it is in the best interest of the State, including without limitation, in the event
the Participant:
4.6.1.1. Fails to comply with the terms and conditions of the MS Contract or this
Participation Agreement;
4.6.1.2. Facilitates credit card transaction fraud;
4.6.1.3. Fails to administer credit card transactions in accordance with the MS Contract;
or
4.6.1.4. Permits or facilitates operational defects in its administration of credit card
transactions.
5. Notices
5.1. 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 sent by
electronic mail when transmitted to the applicable address so specified in (or pursuant to) this
Section 5.1, hand -delivered, delivered by facsimile and confirmed by telephone with an original
mailed or hand -delivered thereafter, mailed by certified or registered mail with postage
prepaid to the party or its successor, or if given by any other means, when actually received at
the address specified as follows:
If to Participant:
Participant:
Name:
Title:
Page 3 of 6
DocuSign Envelope ID: C5ABA83B-05E7-4D18-B035-79A7A5967AEE
Address:
Email Address: _
If to Contractor:
Name:
Title:
Address:
Email Address:
5.2. 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.
5.3. A copy of any notice given with respect to termination of this Participation Agreement or any
changes in a party's contact information also shall be sent to the State at the following address:
If to State:
Deputy Treasurer
Department of the Treasury
200 East Colfax Avenue
State Capital, Suite 140
Denver, Colorado 80203
Email: eric.rothaus@state.co.us
6. Miscellaneous Provisions
6.1. Participant agrees to abide by the State's decision on all matters involving the MS Contract. The
State may amend the MS Contract at any time in accordance with the MS Contract.
6.2. This Participation Agreement incorporates the terms of Exhibit D to the MS Contract, the MS
Contract, and all of the Exhibits attached thereto. This Participation Agreement contains the
entire understanding of the parties and supersedes any and all previous discussions, proposals,
or agreements, if any, between Contractor and Participant with respect to the subject matter
hereof.
6.3. By executing this Participation Agreement, the Participant acknowledges that it has received a
copy of the MS Contract, and all Exhibits and Schedules, including Exhibit D to the MS Contract.
6.4. The Participant acknowledges and agrees that Contractor may provide the State with
information related to this Participation Agreement, transactions processed under this
Page 4 of 6
DocuSign Envelope ID: C5ABA83B-05E7-4D18-B035-79A7A5967AEE
Participation Agreement, including but not limiting the Participant's compliance or non-
compliance with the terms and conditions of the MS Contract and the Merchant Services
Agreement.
6.5. This Participation Agreement may not be amended except by instrument in writing signed by
authorized representatives of Contractor and Participant and approved by the State and such
other parties as may be required by applicable law.
6.6. The Participation Agreement is between Contractor and the Participant and their successors
and assigns.
Page 5 of 6
DocuSign Envelope ID: 437746AC-FA10-472E-BASF-3E657C435993
The parties hereto have executed this Participation Agreement
*Persons signing for Contractor hereby affirm that they are authorized to act on Contractor's behalf
and acknowledge that the Participant and the State are relying on their representation to that effect.
Wells Fargo Merchant Services, LLC
Weld County Government
By: Paul coufal
By: Kevin D. Ross
Title: V. P, Merchant Services RelationsltjpeManzlgrinentnSenior
Leader
uocuamom,
Pa Ctuf4
Docuatonea by:
C6Auk. V. foss
...
* Signature
Date: 2/22/2024
wra- -...
Signature
Date: 2/22/2024
Wells Fargo Bank, N.A.
Participant
Legal Review
By:
By: Paul coufal
Title: V. P, Merchant Services Relationshiffitllanagement
Senior Leader
Dogneedbby�:
rz'L
066DOE06010O1C7...
* Signature
Date: 2/22/2024
Signature
Date:
All Participation Agreements Require Approval By The
Colorado Department of Treasury
Sandy Tan
ByDocuSigned by:
.
C
9122E7B10EE04A0...
Title: Banking Relationship Manager
Effective Date: 2/22/2024
Page 6 of 6
ntrctF
Entity Information
Entity Name *
WELLS FARGO BANK
Contract Name*
WELLS FARGO MERCHANT SERVICES
Contract Status
CTB REVIEW
Entity ID*
@00003550
O New Entity?
Contract ID
7842
Contract Lead"
CDOVIDIO
Contract Lead Email
cdovidio@weldgov.com;c
pattelli@weldgov.com
Parent Contract ID
Requires Board Approval
YES
Department Project #
Contract Description *
PARTICIPATION AGREEMENT WITH WELLS FARGO MERCHANT SERVICES AS AN EXTENSION OF THE STATE OF
COLORADO AGREEMENT TO PROVIDED CREDIT CARD PROCESSING SERVICES.
Contract Description 2
Contract Type"
AGREEMENT
Amount*
$ 0.00
Renewable*
NO
Automatic Renewal
Grant
IGA
Department
ACCOUNTING
Department Email
CM-
Accounting@weldgov.com
Department Head Email
CM-Accounting-
DeptHead@weldgov.com
County Attorney
GENERAL COUNTY
ATTORNEY EMAIL
County Attorney Email
CM-
COUNTYATTORNEY@WEL
DGOV.COM
If this is a renewal enter previous Contract ID
If this is part of a MSA enter MSA Contract ID
Requested BOCC Agenda Due Date
Date* 02/17/2024
02/21/2024
Will a work session with BOCC be required?*
NO
Does Contract require Purchasing Dept. to be
included?
NO
Note: the Previous Contract Number and Master Services Agreement Number should be left blank if those contracts
are not in OnBase
Contract Dates
Effective Date
Termination Notice Period
Contact Information
Contact Info
Review Date*
11/01/2028
Committed Delivery Date
Renewal Date
Expiration Date*
02/28/2029
Contact Name Contact Type Contact Email Contact Phone 1 Contact Phone 2
Purchasing
Purchasing Approver Purchasing Approved Date
Approval Process
Department Head
CHRIS D'OVIDIO
DH Approved Date
02/15/2024
Final Approval
BOCC Approved
BOCC Signed Date
BOCC Agenda Date
02/21/2024
Finance Approver
CHRIS D'OVIDIO
Legal Counsel
BRUCE BARKER
Finance Approved Date Legal Counsel Approved Date
02/15/2024 02/16/2024
Tyler Ref #
AG 022124
Originator
CDOVIDIO
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