3 Master Agreement - NASPO Commercial Cards Contract 00719.pdf

MASTER CONTRACT NO. 00719 COMMERCIAL CARD SERVICES 1

(Rev. 2020-03-11)

AMENDED AND RESTATED

COOPERATIVE PURCHASING MASTER AGREEMENT

NO. 00719

COMMERCIAL CARD SERVICES

For Use by Eligible Participating States

By and Between

STATE OF WASHINGTON

DEPARTMENT OF ENTERPRISE SERVICES

and

U.S. BANK NATIONAL ASSOCIATION

Dated: July 9, 2020

MASTER CONTRACT NO. 00719 COMMERCIAL CARD SERVICES 2

AMENDED AND RESTATED

COOPERATIVE PURCHASING MASTER AGREEMENT

NO. 00719

COMMERCIAL CARD SERVICES

This Amended and Restated Cooperative Purchasing Master Agreement (“Master Agreement”) is made and entered into by and between Enterprise Services acting by and through the State of Washington (“Enterprise Services”) and U.S. Bank National Association, a Delaware corporation (“Contractor or U.S.

Bank”) and is dated as of July 9, 2021.

RECITALS

A. Pursuant to Legislative authorization, Enterprise Services, on behalf of the State of Washington, is authorized to develop, solicit, and establish master contracts for goods and/or services to support Washington state agencies. See RCW 39.26.050(1). The Washington State Legislature has authorized Enterprise services to make these master contracts available, pursuant to an agreement in which Enterprise Services ensures full cost recovery, to other local or federal government agency or entity, public benefit nonprofit organizations, or any tribes located in the State of Washington. See

RCW 39.26.050(1) & (2).

B. The Washington State Legislature also has authorized Enterprise Services to participate in, sponsor, conduct, or administer certain cooperative purchasing agreements for the procurement of goods or services. See RCW 39.26.060(1). One of the approaches that Enterprise Services utilizes to participate in cooperative purchasing agreements with other states is NASPO ValuePoint.

C. NASPO ValuePoint is the cooperative contracting arm of the National Association of State Procurement Officials (NASPO). NASPO ValuePoint is led by state procurement officers from member states. NASPO ValuePoint does not award contracts, rather, it assists states, for an administrative fee, in their collaboration pertaining to solicitations and the resulting Master Agreements.

D. Pursuant to the NASPO ValuePoint cooperative purchasing model, a state serves as the ‘lead state’ to conduct a competitive procurement in compliance with that state’s procurement laws and award a master agreement with a contractor for the specified goods or services. States (including the District of Columbia and the organized territories of the United States), including the lead state, then may participate in that Master Agreement by executing a Participating Addendum. Until a Participating Addendum is executed by the applicable state (a ‘participating state’), no agency or other eligible organization (a ‘purchasing entity’) may utilize the products and services offered pursuant to the cooperative purchasing Master Agreement. Under Washington law, at the time of solicitation, states may provide supplemental substantive terms and conditions to inform the competitive procurement. In addition, pursuant to their Participating Addendum, states may require certain administrative terms and conditions (e.g., a vendor management fee for sales within the state, state registration and reporting). Contractor, MASTER CONTRACT NO. 00719 COMMERCIAL CARD SERVICES 3 however, has no obligation to condition execution of a Participating Addendum on substantive terms and conditions that were not competitively procured.

E. Enterprise Services, as a part of a cooperative purchasing competitive governmental procurement, with administrative support from NASPO ValuePoint, issued Competitive Solicitation No. 00719/00819, dated June 4, 2019, regarding Commercial Card Services.

Eleven (11) states indicated an intent to utilize the resulting cooperative purchasing Master Agreement.

F. Enterprise Services and a stakeholder team consisting of representatives from Washington, Oregon, California, Colorado, and Minnesota evaluated all responses to the Competitive Procurement and identified Contractor as the Apparent Successful Bidder (ASB) for Category 1 - Commercial Card Services.

G. Enterprise Services determined that entering into this Master Agreement will meet the cooperative purchasing needs and be in the best interest of the State of Washington.

H. The purpose of this Master Agreement is to enable Participating States and Purchasing Entities to utilize Commercial Card Services as set forth herein.

I. Enterprise Services and U.S. Bank entered into an agreement for the products and services listed herein dated July 9, 2020 (the “Prior Agreement”), and now the parties desire to amend and restate the Prior Agreement in its entirety to add additional terms and conditions for the purpose of providing the applicable products and services.

AGREEMENT

NOW THEREFORE, in consideration of the mutual promises, covenants, and conditions set forth herein, the parties hereto hereby agree as follows:

1. TERM. The term of this Master Agreement begins July 9, 2020 and ends on December 31, 2025. The Commercial Card services provided pursuant to this Master Agreement start January 1, 2021 and end on December 31, 2025; provided, however that, the contract term shall be extended for twenty-four

(24) months if, in Enterprise Services’ sole, reasonable judgement, which shall occur no later than June 30, 2024, Contractor meets the following performance metrics:

Reports: Contractor provides timely and accurate reports as detailed in this Master Agreement and Participating Addendums; and Rebate: Contractor provides timely and accurate rebates as detailed in this Master Agreement and Participating Addendums.

Notwithstanding any provision to the contrary, to effectuate a smooth transition for Participating States and Purchasing Entities for Commercial Card Services to begin on January 1, 2021, Contractor shall provide implementation and transition support to Participating States who wish to utilize the Master Agreement, beginning upon the date such Participating State and Contractor executes a Participating Addendum. For the avoidance of doubt, no rebate calculations as set forth in Exhibit B

– Rebate/Incentive Share shall be made under this Agreement prior to January 1, 2020.

2. PARTICIPANTS. Use of this Master Agreement may be authorized by Participating States for use by Purchasing Entities as set forth herein.

MASTER CONTRACT NO. 00719 COMMERCIAL CARD SERVICES 4

2.1. PARTICIPATING STATES. For the purpose of this Master Agreement, a Participating State shall mean: any state, or U.S. territory (e.g., District of Columbia, Puerto Rico, etc.) (“State”) that executes a Participating Addendum with the Contractor, such Participating Addendum will authorize Purchasing Entities for such Participating State. Such Participating Addendum must be executed by the chief procurement officer for the applicable state; provided however, that some States, with state authority to do so and permission from such state chief procurement officer, may authorize local governments, political subdivisions, and other entities to execute a Participating Addendum. Contractor may not provide Commercial Card Services under this Master Agreement until a Participating Addendum acceptable to the Participating State and Contractor is executed.

2.2. PURCHASING ENTITIES. For the purpose of this Master Agreement, a Purchasing Entity is any eligible entity authorized by a Participating State and approved by Contractor in accordance with the approval procedures set forth in Exhibit D – Establishing a Card User Agreement to participate in the Master Agreement (i.e. to purchase from the Master Agreement) pursuant to a Participating Addendum. Purchasing Entities will be required to execute a Card User Agreement (CUA) as outlined in this Master Agreement and shall be financially committed to the card account.

2.3. PARTICIPATING ADDENDUM. For the purpose of this Master Agreement, a Participating Addendum is the document executed between a Participating State and Contractor that enables eligible Purchasing Entities to utilize the Master Agreement. The terms and conditions set forth in the Master Agreement are applicable to any Purchasing Entity except to the extent altered, modified, supplemented, or amended by a Participating Addendum as required by a Participating State’s laws, regulations or procedures. The expectation is that these alterations, modifications, supplements, or amendments will be addressed in the Participating Addendum with the consent of the Participating State and Contractor.

Contractor shall email a fully executed PDF copy of each Participating Addendum to PA@naspovaluepoint.org to support documentation of participation and posting in appropriate databases.

2.4. PARTICIPATING ADDENDUM CHANGES. Participating Addenda shall not be construed to amend the Master Agreement provisions pertaining to NASPO ValuePoint program requirements.

3. SCOPE – INCLUDED GOODS/SERVICES AND PRICE.

3.1. SCOPE. Pursuant to this Master Agreement, Contractor is authorized to provide only those goods and/or services set forth in Exhibit A – Commercial Card Products and Exhibit G - Commercial Card Requirements and provide the Rebate/Incentive Share as set forth in Exhibit B – Rebate/Incentive Share. Contractor shall not represent to any Participating State or Purchasing Entity under this Master Agreement that Contractor has contractual authority to provide any goods and/or services beyond those set forth in Exhibit A – Commercial Card Products and Exhibit G - Commercial Card Requirements.

3.2. LEAD STATE’S ABILITY TO MODIFY SCOPE OF MASTER AGREEMENT. Subject to mutual agreement between the parties, Enterprise Services reserves the right to modify the goods and/or services included in this Master Agreement; Provided, however, that any such modification shall be effective only upon thirty (30) days advance written notice; and Provided further, that any such modification must be within the scope of this Master Agreement.

mailto:PA@naspovaluepoint.org

MASTER CONTRACT NO. 00719 COMMERCIAL CARD SERVICES 5

3.3. INCENTIVE SHARE ADJUSTMENT. Incentive share and fees shall remain firm and fixed for the term of the Agreement; provided that in the event of a decrease or increase in the Interchange Rates by five percent (5%) or more, U.S. Bank will have the right (but not obligation) to replace the current Rebate/Incentive Share with a new Rebate/Incentive Share proportionate to the change of the revised Interchange Rates. Contractor will provide written justification to the Contract Administrator with validation of the adjustment to the Interchange Rate table;

Enterprise Services reserves the right to negotiate a greater incentive share at any time during the life of the Agreement. A greater incentive share must be mutually agreed between the Parties. A Participating State may negotiate the specifics of the Incentive Share Component, but shall not exceed the total basis points offered by the Contractor.

3.4. PRICE CEILING. Except as provided in Section 3.3 above, Contractor’s Basis Points as set forth in this Master Agreement shall be fixed. Contractor’s fees (e.g. overnight card delivery and international transactions) set forth in this Agreement shall be the maximum fees Contractor may charge during the term of the Master Agreement. See Exhibit E – Supplemental Services.

3.5. MASTER AGREEMENT INFORMATION. Enterprise Services shall maintain and provide information regarding this Master Agreement, including scope and pricing, to the eligible Participating Entities.

4. REPRESENTATIONS AND WARRANTIES.

4.1. CONTRACTOR REPRESENTATION AND WARRANTIES. Contractor makes each of the following representations and warranties as of the effective date of this Master Agreement and at the time any Card User Agreement (CUA) is placed pursuant to this Master Agreement and Participating Addendum. If, at the time of any such agreement, Contractor cannot make such representations and warranties, the Contractor shall not process any additional CUA and shall, within three (3) business days notify Enterprise Services, in writing, of such breach.

(a) QUALIFIED TO DO BUSINESS. Contractor represents and warrants that it is a validly existing national bank that is authorized and qualified to do business in the State of Washington and all other states of the United States (each, a “U.S. State”), that it possesses documentation that reflects this authorization from the office of the Comptroller of the Currency, and that it is current, in full compliance, and has paid all applicable taxes owed to the State of Washington. Contractor further represents and warrants that it will do the equivalent for any U.S. State for which it executes a Participating Addendum.

(b) SUSPENSION & DEBARMENT. Contractor represents and warrants that neither it nor its principals or affiliates presently are debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in any governmental contract by any governmental department or agency within the United States.

(c) WAGE VIOLATIONS. Contractor represents and warrants that, during the term of this Master Agreement and the three (3) year period immediately preceding the award of the Master Agreement, it is not determined, by a final and binding citation and notice of assessment issued by the Washington Department of Labor and Industries or through a civil judgment entered by a court of limited or general jurisdiction, to be in willful violation of any provision of Washington state wage laws set forth in RCW chapters 49.46, 49.48, or 49.52.

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(d) PAY EQUALITY. Contractor represents and warrants that, among its workers, similarly employed individuals are compensated as equals. For purposes of this provision, employees are similarly employed if the individuals work for the same employer, the performance of the job requires comparable skill, effort, and responsibility, and the jobs are performed under similar working conditions. Job titles alone are not determinative of whether employees are similarly employed. Contractor may allow differentials in compensation for its workers based in good faith on any of the following: a seniority system; a merit system; a system that measures earnings by quantity or quality of production; a bona fide job-related factor or factors; or a bona fide regional difference in compensation levels. A bona fide job-related factor or factors may include, but not be limited to, education, training, or experience, that is:

consistent with business necessity; not based on or derived from a gender-based differential; and accounts for the entire differential. A bona fide regional difference in compensation level must be consistent with business necessity; not based on or derived from a gender-based differential; and account for the entire differential.

Notwithstanding any provision to the contrary, upon breach of warranty and Contractor’s failure to provide satisfactory evidence of compliance within thirty (30) days, Enterprise Services may suspend or terminate this Master Agreement and any Purchasing Entity hereunder similarly may suspend or terminate its use of the Master Agreement and/or any Participating Addendum entered into pursuant to the Master Agreement.

(e) EXECUTIVE ORDER 18-03 WORKERS’ RIGHTS (MANDATORY INDIVIDUAL ARBITRATION).

Contractor represents and warrants, as previously certified in Contractors bid submission, that Contractor does NOT require its employees, as a condition of employment, to sign or agree to mandatory individual arbitration clauses or class or collective action waivers. Contractor further represents and warrants that, during the term of this Master Agreement, Contractor shall not, as a condition of employment, require its employees to sign or agree to mandatory individual arbitration clauses or class or collective action waivers.

(f) QUALITY OF GOODS AND SERVICES. Contractor represents and warrants that any goods and/or services provided pursuant to this Master Agreement, shall conform to this Master Agreement and Cardholder User Agreement, and shall be provided in full compliance with applicable law. In addition, Contractor agrees that it will use commercially reasonable efforts to deliver such goods and services in a manner consistent with the portion of Contractor’s response to the Competition Solicitation attached as Exhibit G – Commercial Card Requirements; provided that in the event Contractor fails to do so, Enterprise Services’ sole remedy shall be to terminate this Agreement after providing Contractor with notice and a reasonable opportunity to cure.

(g) NO EFFECT OF ADDITIONAL TERMS AND CONDITIONS. Contractor represents and warrants that any Authorized Users agreement to “click through” or other terms and conditions shall not be binding and shall have no force or effect as to the Services of this Master Agreement or Participating Addendum, except that each Purchasing Entity’s access and use of U.S. Bank’s Access Online web-based application may be subject to the terms and conditions of the applicable “click-through” agreement, as in effect as of February 26, 2020, except that Purchasing Entity shall not be bound by any terms and

MASTER CONTRACT NO. 00719 COMMERCIAL CARD SERVICES 7

conditions that provide for (i) the amendment of such agreement without written consent of both parties, (ii) the indemnification of any party; (iii) the governing law or venue requirements, (iv) the waiver of any applicable statute of limitations period, (v) that incorporate any terms or conditions by reference, or (vi) any term or condition that conflicts with the terms and conditions of this Agreement.

(h) PROCUREMENT ETHICS & PROHIBITION ON GIFTS. Contractor represents and warrants that it complies fully with all applicable procurement ethics restrictions including, but not limited to, restrictions against Contractor providing gifts or anything of economic value, directly or indirectly, to Purchasing Entity’s employees. Contractor further represents and warrants that it will do the equivalent for any Participating State for which it executes a Participating Addendum.

(i) WASHINGTON’S ELECTRONIC BUSINESS SOLUTION (WEBS). Contractor represents and warrants that it is registered in Washington’s Electronic Business Solution (WEBS), Washington’s contract registration system and that, all of its information therein is current and accurate and that throughout the term of this Master Agreement, Contractor shall maintain an accurate profile in WEBS.

(j) STATEWIDE PAYEE DESK. Contractor represents and warrants that it is registered with the Statewide Payee Desk, which registration is a condition to payment.

(k) MASTER AGREEMENT PROMOTION; ADVERTISING AND ENDORSEMENT. Contractor represents and warrants that it shall use commercially reasonable efforts both to promote and market the use of this Master Agreement with eligible Participating Entities and ensure that those entities that utilize this Master Agreement are eligible Participating Entities. Contractor understands and acknowledges that neither Enterprise Services nor any Purchasing Entity are endorsing Contractor’s goods and/or services or suggesting that such goods and/or services are the best or only solution to their needs. Accordingly, Contractor represents and warrants that it shall make no reference to Enterprise Services, the State of Washington, or any Participating or Purchasing Entity in any promotional material without the prior written consent of Enterprise Services.

(l) MASTER AGREEMENT TRANSITION. Contractor represents and warrants that, in the event this Master Agreement or a similar contract, is transitioned to another contractor (e.g., Master Agreement expiration or termination), Contractor shall use commercially reasonable efforts to assist Enterprise Services for a period of nine (9) months to effectuate a smooth transition to another contractor to minimize disruption of service and/or costs to the State of Washington and all other Participating Entities.

4.1. PURCHASING ENTITY AND CONTRACTOR MUTUAL REPRESENTATIONS AND WARRANTIES. U.S. Bank and Purchasing Entity respectively represent and warrant, at all times during the applicable Participating Addendum or Card User Agreement, that:

(a) The applicable Participating Addendum or Card Used Agreement constitutes a valid, binding, and enforceable agreement of such party;

(b) The execution of the Participating Addendum or Card User Agreement and the performance of its obligations under the applicable Participating Addendum or Card User Agreement are within its authorized powers; has been authorized by all

MASTER CONTRACT NO. 00719 COMMERCIAL CARD SERVICES 8

necessary action; and does not constitute a breach of any agreement between itself and any other party;

(c) It shall comply with all requirements of the applicable Participating Addendum or Card User Agreement;

(d) It complies with all applicable state, territorial and federal statutes, ordinances, rules, regulations, and requirements of governmental authorities (collectively, “Governmental Regulations”) related to the Participating Addendum and its execution and performance of the Participating Addendum will not contravene any Governmental Regulations applicable to it; and

(e) It possesses the financial capacity to enter into and perform all of its obligations under the Participating Addendum or Card User Agreement.

4.2. PURCHASING ENTITY REPRESENTATIONS AND WARRANTIES. Purchasing Entity represents and warrants, at all times during their Participating Addendum or Card User Agreement, that:

(a) Purchasing Entity shall use Commercial Cards, and shall instruct its Cardholders to use Commercial Cards, solely for Participating State’s or Participant’s business purposes;

(b) Purchasing Entity has received any and all necessary consents from Cardholders prior to providing U.S. Bank with any Cardholder Identification Information;

(c) The material information provided by Purchasing Entity to U.S. Bank is true, complete, and accurate; and

(d) No third-party consent or approval, including, without limitation, a lender, is required with respect to the execution of the Participating Addendum, or if any such third-party consent or approval is required, Purchasing Entity has obtained any and all such consents or approvals.

Except as expressly provided herein, U.S. Bank makes no warranties, express or implied, in law or in fact, including, without limitation, the implied warranties of fitness for a particular purpose and of merchantability, either to Participating State or to any other person or third party, with respect to the Commercial Card program provided by U.S. Bank or its representatives, or with respect to U.S. Bank’s Commercial Card management software made available by U.S. Bank to Purchasing Entity or any other person for its use, in connection with this Master Agreement, Participating Addendum or Card User Agreement and any services thereunder.

5. USING THE MASTER AGREEMENT – ESTABLISHING A CARD USER AGREEMENT.

5.1. ESTABLISHING A CARD USER AGREEMENT (CUA). Purchasing Entities shall establish a Card User Agreement as described in Exhibit D – Establishing a Card User Agreement or as modified by the Participating State’s Participating Addendum in order to receive cards, establish access to the online system, and leverage any other goods and/or services from this Master Agreement.

5.2. DELIVERY REQUIREMENTS. Contractor must ensure that delivery of goods and/or services will be made as required by this Master Agreement, the Participating Addendum or as otherwise mutually agreed in writing between the Purchasing Entity and Contractor.

MASTER CONTRACT NO. 00719 COMMERCIAL CARD SERVICES 9

5.3. ON SITE REQUIREMENTS. Contractor, its agents, employees, or subcontractors shall comply, in all respects, with Purchasing Entity’s physical, fire, access, or other security requirements required by any Participating State or Eligible Purchaser while on their premises.

6. STATEMENTS & PAYMENT.

6.1. CONTRACTOR STATEMENT. Contractor shall submit to Purchasing Entity’s designated statement contact properly itemized managing account statements. Such statements shall, upon request by the applicable entity and subject to character space limitations, itemize the following:

(a) Master Agreement No. 00719

(b) Participating Addendum No.

(c) Contractor name, address, telephone number, and email address for billing issues (i.e., Contractor Customer Service Representative); and

(d) Statement amount.

Statements will not be processed for payment until receipt of a complete statement as specified herein.

6.2. PAYMENT. Payment is the sole responsibility of, and will be made by, the Purchaser. Payment is due within the earlier of forty-five (45) days of statement or the date required in the applicable Participating State’s prompt pay act or similar legislation. If Purchaser fails to make timely payment(s), Contractor may invoice in the amount of up to one percent (1%) per month on the amount overdue or a minimum of $2, or as otherwise agreed in the applicable Participating Addendum.

6.3. OVERPAYMENTS. Contractor promptly shall refund to Purchaser the full amount of any erroneous payment or overpayment. Such refunds shall occur promptly upon discovery by Contractor or within thirty (30) days of written notice to Contractor; Provided, however, that so long as Purchaser is not in monetary default at such time, Purchaser shall have the right to elect to have either direct payments or written credit memos issued. If Contractor fails to make timely payment(s) or issuance of such credit memos, Purchaser may impose a one percent (1%) per month on the amount overdue thirty (30) days after notice to the Contractor.

6.4. NO ADDITIONAL CHARGES. Unless otherwise specified herein, Contractor shall not include or impose any additional charges including, but not limited to, charges for shipping, handling, or payment processing.

6.5. TAXES/FEES. Contractor promptly shall pay all applicable taxes on its operations and activities pertaining to this Master Agreement.

6.6. BILLING DISPUTES; SUSPENSION AND FOREIGN TRANSACTIONS. Any Purchasing Entity shall communicate all disputes regarding Charges or billing for the Commercial Card program within sixty (60) days of the Statement date to Contractor in accordance with the Network operating rules and regulations, identifying the specific items and the basis for such dispute.

If the amount owing under a Commercial Card account (other than amounts subject to a bone fide dispute) has not been paid in full when due, the Commercial Card is delinquent.

Contractor may suspend any Commercial Card that is delinquent. Contractor may recover any reasonable legal fees and other expenses incurred in collecting any delinquent amounts on a Commercial Card. If a Commercial Card is used for Charges in a currency other than the

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billing currency, due to fluctuations in foreign exchange rates, a credit may not be the same amount as the original Charge.

7. MASTER AGREEMENT MANAGEMENT.

7.1. MASTER AGREEMENT ADMINISTRATION. The parties hereby designate the following administrators as the respective single points of contact for purposes of this Master Agreement. Enterprise Services’ contract administrator shall provide Master Agreement oversight. Contractor’s contract administrator shall be Contractor’s principal contact for business activities under this Master Agreement. The parties may change contractor administrators by written notice as set forth in Section 7.4 below.

Enterprise Services Contractor Attn: Team Cypress, Contract 00719 Washington Dept. of Enterprise Services PO Box 41411 Olympia, WA 98504-1411 Email: DESTeamCypress@des.wa.gov Tel: (360) 407-2218

Attn: CPS Contracts Manager 901 Marquette Ave S Minneapolis, MN 55402

EP-MN-A175

Tel: (310) 363-5850

7.2. CONTRACTOR RELATIONSHIP MANAGER. In each Participating Addendum, Contractor shall designate a Relationship Manager who shall be responsible for addressing Purchaser issues pertaining to this Master Agreement and Participating Addendum. Notwithstanding any provision to the contrary, Contractor agrees that upon written notice from Participating State it shall collaborate with such State to transition the Relationship Manager duties to an alternative representative so as to achieve the mutually beneficial relationship intended by this Agreement.

7.3. ACCOUNT COORDINATOR. In each Participating Addendum, Contractor shall designate one or more Account Coordinators who shall be responsible for addressing Purchaser issues pertaining to this Master Agreement and Participating Addendum. Notwithstanding any provision to the contrary, Contractor agrees that upon written notice from Participating State it shall collaborate with such State to transition the Account Coordinator duties to an alternative representative so as to achieve the mutually beneficial relationship intended by this Agreement.

7.4. NOTICES. Any notices required to be delivered under this Agreement shall be in writing and delivered by electronic mail, or by U.S. certified mail, return receipt requested, postage prepaid, and shall be sent to the respective addressee at the respective address set forth below or to such other address as the parties may specify in writing:

Enterprise Services Contractor Attn: Legal Services Manager Washington Dept. of Enterprise Services PO Box 41411 Olympia, WA 98504-1411

Attn: Law Division – Corporate Payment Systems U.S. Bank National Association 800 Nicollet Mall, Suite 2100 Minneapolis, MN 55402

Notices shall be deemed effective two (2) days after the date of mailing, if sent by U.S.

certified mail, or upon acknowledgment from the recipient, if sent by electronic mail.

mailto:DESTeamCypress@des.wa.gov

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8. CONTRACTOR SALES REPORTING; ADMINISTRATIVE FEE; & CONTRACTOR REPORTS.

8.1. NASPO VALUEPOINT ADMINISTRATIVE FEE. Contractor shall pay to NASPO ValuePoint, or its assignee, a NASPO ValuePoint Administrative Fee of one-quarter (1/4 or 25%) of one basis point (0.0025% or 0.000025) of the National Annual Volume no later than seventy-five (75) days following the end of the calendar year; provided that NASPO ValuePoint, or its assignee, has provided the necessary payment instructions and signed any associated forms that Contractor reasonably determines is necessary to effectuate such payment. The NASPO ValuePoint administrative fee is not negotiable. This fee may not be adjusted in any Participating Addendum. This fee is to be included as part of the pricing submitted with the bid.

8.2. PARTICIPATING STATE ADMINISTRATIVE FEE. Some states may require an additional fee be paid directly to the state only on purchases made by Purchasing Entities within that state. The fee level, payment method and schedule for such reports and payments will be incorporated into the Participating Addendum that is made a part of the Master Agreement. The Contractor may adjust the Master Agreement pricing accordingly for purchases made by Purchasing Entities within the jurisdiction of the state. All such agreements shall not affect the NASPO ValuePoint Administrative Fee percentage or the prices paid by the Purchasing Entities outside the jurisdiction of the state requesting the additional fee. The NASPO ValuePoint Administrative Fee set forth above shall be based on the sum of Standard Volume and Non- Standard Volume.

9. NASPO VALUEPOINT SUMMARY AND DETAILED USAGE REPORTS. In addition to other reports that may be required by the Master Agreement, Contractor shall provide the following NASPO ValuePoint reports.

9.1. SUMMARY SALES DATA. Contractor shall submit quarterly sales reports directly to NASPO ValuePoint using the NASPO ValuePoint Quarterly Sales/Administrative Fee Reporting Tool found at http://www.naspo.org/WNCPO/Calculator.aspx. Any/all sales made under this Master Agreement shall be reported as cumulative totals by state. Even if Contractor experiences zero (0) sales during a calendar quarter, a report is still required. Reports shall be due no later than sixty (60) days following the end of the calendar quarter (as specified in the reporting tool).

9.2. DETAILED SALES DATA. Contractor also shall report to Enterprise Services and to NASPO ValuePoint, detailed sales data by: (1) Participating State, (2) Entity/Customer Type, coded as State Government, Local Government, Higher Education, K12, Non-Profit; (3) total number of transactions; (4) total dollar value of transactions. Reports are due on a quarterly basis and must be received by Enterprise Services and NASPO ValuePoint no later than sixty (60) days after the end of the reporting period. Reports shall be delivered to Enterprise Services and to NASPO ValuePoint electronically through a designated portal, email, CD-ROM, flash drive or other method as determined by Enterprise Services and NASPO ValuePoint. Detailed sales data reports shall include sales information for all sales under Participating Addenda executed under this Master Agreement.

9.3. NATIONAL ANNUAL SALES INCENTIVE REPORT. Contractor shall provide the NASPO ValuePoint Cooperative Development Coordinator and Enterprise Services Contract Administrator with a National Annual Sales Volume Incentive Report reflecting each State’s total annual spend, and National Annual Volume Rebate earned no later than sixty (60) days after the end of the calendar year.

http://www.naspo.org/WNCPO/Calculator.aspx

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9.4. NASPO VALUEPOINT EXECUTIVE SUMMARY. Contractor shall provide NASPO ValuePoint an executive summary each quarter that includes, at a minimum, a list of states with an active Participating Addendum, states that Contractor is in negotiations with and any Participating Addendum roll out or implementation activities and issues. NASPO ValuePoint and Contractor will determine the format and content of the executive summary. The executive summary is due thirty (30) days after the conclusion of each calendar quarter.

9.5. REPORT OWNERSHIP. Timely submission of these reports is a material requirement of the Master Agreement. Enterprise Services and NASPO ValuePoint shall have a perpetual, irrevocable, non-exclusive, royalty free, transferable right to display, modify, copy and otherwise use reports, data and information provided under this section.

9.6. CONFIDENTIALITY OF DETAILED SALES DATA AND PARTICIPATING ADDENDA. Participating Addenda, as well as transaction data relating to Orders under this Master Agreement that identify the entity/customer, transaction dates, line item descriptions and volumes, and prices/rates, shall be Confidential Information. Except as required by law, Contractor shall hold Confidential Information in confidence and shall not transfer or otherwise disclose Confidential Information to third parties or use Confidential Information for any purposes whatsoever other than what is necessary to the performance of purchase transactions under this Master Agreement. Contractor shall advise each of its employees and agents of their obligations to keep Confidential Information confidential. This provision does not apply to disclosure to the Lead State, a Participating State or any governmental entity exercising an audit, inspection, or examination pursuant to this Master Agreement. To the extent permitted by law, Contractor shall notify the Lead State of the identity of any entity seeking access to the Confidential Information described in this subsection.

10. NASPO VALUEPOINT COOPERATIVE PROGRAM MARKETING AND PERFORMANCE REVIEW.

10.1. NASPO VALUEPOINT COOPERATIVE PROGRAM. Contractor agrees to work cooperatively with NASPO ValuePoint personnel. Contractor agrees to present plans to NASPO ValuePoint for the education of Contractor’s contract administrator(s) and sales/marketing workforce regarding the Master Agreement, including the competitive nature of NASPO ValuePoint procurements, the Master Agreement and Participating addendum process, and the manner in which qualifying entities can participate in the Master Agreement.

10.2. LOGOS. NASPO ValuePoint logos may not be used by the Contractor in sales and marketing until a logo use agreement is executed with NASPO ValuePoint.

10.3. ANNUAL CONTRACT REVIEW. Contractor agrees to participate in an annual contract performance review at a location selected by Enterprise Services and NASPO ValuePoint, which may include a discussion of marketing action plans, target strategies, marketing materials, as well as Contractor reporting and timeliness of payment of administration fees.

11. RECORDS RETENTION & AUDITS.

11.1. RECORDS RETENTION. Contractor shall maintain books, records, documents, and other evidence pertaining to this Master Agreement and Card User Agreements (CUA) entered into by Participating or Purchasing Entities under it to the extent and in such detail as shall adequately reflect performance and administration of payments and fees. Contractor shall retain such records for a period of six (6) years following expiration or termination of this Master Agreement or final payment for any order placed by a Participating or Purchasing Entity

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against this Master Agreement, whichever is later; Provided, however, that if any litigation, claim, or audit is commenced prior to the expiration of this period, such period shall extend until all such litigation, claims, or audits have been resolved.

11.2. AUDIT. Enterprise Services reserves the right to audit, or have a designated third party audit, applicable records to ensure that Contractor has properly issued the Purchasing Entity the applicable rebate/incentive share. Accordingly, Contractor shall permit Enterprise Services, any Participating or Purchasing Entity, and any other duly authorized agent of a governmental agency, to audit, inspect, examine, copy and/or transcribe Contractor’s books, documents, papers and records directly pertinent to this Master Agreement or agreements entered into by Participating and/or Purchasing Entities under it for the purpose of making audits, examinations, excerpts, and transcriptions. This right shall survive for a period of six (6) years following expiration or termination of this Master Agreement or final payment for any account under this Master Agreement, whichever is later; Provided, however, that if any litigation, claim, or audit is commenced prior to the expiration of this period, such period shall extend until all such litigation, claims, or audits have been resolved.

11.3. UNDERPAYMENT OF REBATE/INCENTIVE SHARE. Without limiting any other remedy available to any Participating or Purchasing Entity, in the event of a material underpayment of the Rebate/Incentive Share, in addition to compensating such Participating or Purchasing Entity for the deficiency, Contractor shall reimburse such Participating or Purchasing Entity for its reasonable out-of-pocket expenses incurred to discover and calculate the amount of such deficiency, or twenty-five (25%) of the amount of the deficiency, whichever is less.

12. INSURANCE.

12.1. REQUIRED INSURANCE. During the term of this Master Agreement, Contractor, at its expense, shall maintain in full force and effect the insurance coverages set forth in Exhibit C – Insurance Requirements.

12.2. WORKERS COMPENSATION. Contractor shall comply with applicable workers’ compensation statutes and regulations (e.g., RCW Title 51, Industrial Insurance). If Contractor fails to provide industrial insurance coverage or fails to pay premiums or penalties on behalf of its employees as may be required by law, Enterprise Services may terminate this Master Agreement. This provision does not waive any of the Washington State Department of Labor and Industries (L&I) rights to collect from Contractor. In addition, Contractor waives its immunity under RCW Title 51 to the extent it is required to indemnify, defend, and hold harmless the State of Washington and its agencies, officials, agents, or employees.

12.3. INSURANCE CERTIFICATE. Prior to commencement of performance and annually thereafter, Contractor shall provide to Enterprise Services a written endorsement to the Contractor’s general liability insurance policy or other documentation evidence acceptable to the Lead State that (1) names the participating States identified in the Competitive Solicitation as additional insureds, (2) provides for written notice of cancellation shall be delivered in accordance with the policy provisions, and (3) provides that the Contractor’s liability insurance policy shall be primary, with any liability insurance of any Participating State as secondary and noncontributory. Unless otherwise agreed in any Participating Addendum, other state Participating Entities’ rights and Contractor’s obligations are the same as those specified in the first sentence of this subsection except the endorsement is provided to the applicable state.

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13. PUBLIC INFORMATION. This Master Agreement, all related documents, and all records created as a result of the Master Agreement are subject to public disclosure as required by Washington’s Public Records Act, RCW chapter 42.56. In addition, Participating Addendums and related records shall be subject to public disclosure as required by applicable law pertaining to such Purchasing Entity. Consistent with the Public Records Act, to the extent that any such Contractor document or record – in whole or in part – includes information exempted or protected from disclosure by the Public Records Act, Contractor may mark such document or record – the exempted or protected portions only – with the specific basis for protection under the Public Records Act. In the event that Enterprise Services receives a public records disclosure request that pertains to such properly marked documents or records, Enterprise Services shall notify Contractor of such disclosure request and of the date that the records will be released to the requester unless Contractor, at Contractor’s sole expense, timely obtains a court order enjoining such disclosure, Enterprise Services shall release the requested documents on the date specified. Contractor’s failure properly to identify exempted or protected information or timely respond after notice of request for public disclosure has been given shall be deemed a waiver by Contractor of any claim that such materials are protected or exempt from disclosure.

14. CLAIMS

14.1. ASSUMPTION OF RISKS; CLAIMS BETWEEN THE PARTIES. Contractor assumes sole responsibility and all risks of personal injury or property damage to itself and its employees, and agents in connection with Contractor’s operations under this Master Agreement. Enterprise Services has made no representations regarding any factor affecting Contractor’s risks. Contractor shall pay for all damage to any Purchaser’s property resulting directly or indirectly from its acts or omissions under this Master Agreement, even if not attributable to negligence by Contractor or its agents.

14.2. THIRD-PARTY CLAIMS; INDEMNITY. Contractor shall defend, indemnify, and hold harmless Enterprise Services and any Purchaser and their employees and agents from and against all third-party claims, demands, judgments, assessments, damages, penalties, fines, costs, liabilities or losses including, without limitation, sums paid in settlement of claims, attorneys’ fees, consultant fees, and expert fees (collectively “claims”) arising from any negligent or wrongful act or omission of Contractor or its successors, agents, and subcontractors under this Master Agreement, except to the extent such claims are caused by Enterprise Services or any Purchasers’ negligence or wrongful act or omission. Contractor shall take all steps needed to keep Purchaser’s property free of liens arising from Contractor’s activities, and promptly obtain or bond the release of any such liens that may be filed.

14.3. THIRD- PARTY CLAIMS; INDEMNITY - INTELLECTUAL PROPERTY. Contractor shall defend, indemnify and hold harmless Enterprise Services and any Purchaser, along with their officers and employees, from and against claims, damages or causes of action including reasonable attorney fees and related costs arising out of the claim that Contractor’s operations/products or their use, infringes Intellectual Property rights of any person or entity.

(1) The Contractor’s obligations under this section shall not extend to any combination of the Product with any other product, system or method, unless the Product, system or method is:

(a) Provided by the Contractor or the Contractor’s subsidiaries or affiliates;

(b) Specified by the Contractor to work with the Product; or

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(c) Reasonably required, in order to use the product in its intended manner, and in the infringement could not have been avoided by substituting another reasonably available product, system or method capable of performing the same function; or

(d) It would be reasonably expected to use the Product in combination with such product, system, or method.

(2) The indemnified party shall notify the Contractor within a reasonable time after receiving notice of an intellectual property claim. Even if the indemnified party fails to provide reasonable notice, the Contractor shall not be relieved from its obligations unless the Contractor can demonstrate that it was prejudiced in defending the intellectual property claim resulting in increased expenses or loss to the Contractor.

If the Contractor promptly and reasonably investigates and defends any intellectual property claim, it shall have no control over the defense and settlement of it.

However, the indemnified party must consent in writing for any money damages or obligations for which it may be responsible. The indemnified party shall furnish, at the Contractor’s reasonable request and expense, information and assistance necessary for such defense. If the Contractor fails to vigorously pursue the defense or settlement of the intellectual property claim, the indemnified party may assume the defense or settlement of it and the Contractor shall be liable for all costs and expenses, including reasonable attorneys’ fees and related costs, incurred by the indemnified party in the pursuit of the intellectual property claim. Unless otherwise agreed in writing, this section is not subject to any limitations of liability in this Master Agreement or in any other document executed in conjunction with this Master Agreement.

14.4. THIRD-PARTY CLAIMS; INDEMNITY: NASPO. Contractor’s indemnity obligations set forth above shall extend to an obligation to defend, indemnify, and hold harmless, NASPO and NASPO ValuePoint) to the same extent as Enterprise Services and any Purchaser.

15. DISPUTE RESOLUTION. The parties shall cooperate to resolve any dispute pertaining to this Master Agreement efficiently, as timely as practicable, and at the lowest possible level with authority to resolve such dispute. If, however, a dispute persists and cannot be resolved, it may be escalated within each organization. In such situation, upon notice by either party, each party, within five (5) business days shall reduce its description of the dispute to writing and deliver it to the other party.

The receiving party then shall have three (3) business days to review and respond in writing. In the event that the parties cannot then agree on a resolution of the dispute, the parties shall schedule a conference between the respective senior manager of each organization to attempt to resolve the dispute. In the event the parties cannot agree, either party may resort to court to resolve the dispute.

16. DEFAULTS AND REMEDIES.

16.1. SUSPENSION & TERMINATION FOR DEFAULT. Enterprise Services may suspend Contractor’s operations under this Master Agreement immediately by written cure notice of any default.

Suspension shall continue until the default is remedied to Enterprise Services’ reasonable satisfaction; Provided, however, that, if after thirty (30) days from such a suspension notice, Contractor remains in default, Enterprise Services may terminate Contractor’s rights under this Master Agreement. All of Contractor’s obligations to Enterprise Services and Purchasers survive termination of Contractor’s rights under this Master Agreement, until such obligations have been fulfilled.

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16.2. CONTRACTOR DEFAULT. Each of the following events shall constitute default of this Master Agreement and Participating Addendum by Contractor:

(a) Contractor fails to perform or comply with any of the terms or conditions of this Master Agreement;

(b) Contractor breaches any representation or warranty provided herein; or

(c) Contractor enters into proceedings relating to bankruptcy, whether voluntary or involuntary.

16.3. PURCHASING ENTITY DEFAULT. Any Purchasing Entity will be in default of the applicable Participating Addendum or Card User Agreement upon the occurrence of any of the following events (each, a “Purchasing Entity Default”):

(a) any material violation of its obligations set forth in or the applicable security, confidentiality, or intellectual property sections as set forth in the Master Agreement;

(b) any failure to make a payment on any Commercial Cards as set forth in the applicable billing and payment sections;

(c) any material default of any other agreement between U.S. Bank and Purchasing Entity that has not been cured in the time specified in the applicable agreement;

(d) any representations or warranties that fail to be true and correct at any time during the term;

(e) any material violation of any other covenants, conditions, or provisions set forth in the Master Agreement or applicable Participating Addendum or Card User Agreement;

(f) the filing of a…