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HomeMy WebLinkAboutexhibit2CHASE COMMERCIAL CARD PROGRAM Master Agreement This Chase Commercial Card Program Master Agreement (the "Agreement") is dated as of , 2004, between the CITY OF MIAMI (the "City"), a municipal corporation of the State of Florida, and CHASE MANHATTAN BANK USA, National Association ("Chase"), a Delaware corporation. RECITALS WHEREAS, Chase is a member and licensee of Visa U.S.A., Inc. ("Visa") and MasterCard International, Inc. ("MasterCard") and as such is authorized to Issue Visa and MasterCard credit cards bearing Visa and MasterCard logos and service marks, to open Visa and MasterCard accounts and to offer Visa and MasterCard services and benefits as they may be made available; and WHEREAS, Chase has developed a commercial card system composed of Visa and MasterCard credit cards and unique card -use controls, and Chase offers specialty reports to facilitate and expedite the purchase of, and payment for, goods and services acquired for the legitimate business benefit of a business concern (the "Program"); and WHEREAS, the City desires to participate in the Program, subject to the terms of this Agreement; NOW, THEREFORE, in consideration of the foregoing premises and the mutual agreements, provisions, and covenants contained in this Agreement, the parties agree as follows: SECTION 1 DEFINITIONS 1.1 DEFINITIONS. Certain terms used in this Agreement, unless the context requires otherwise, shall have the following meanings, "Account" means the Visa or MasterCard account of a Cardholder and/or the City maintained with Chase. "Billing Cycle" means a monthly period that ends on the same day each calendar month, unless such day is not a Business Day, in which case, the last day of such period shall be the Business Day immediately before or after such day. "Business Day" means a day, other than a Saturday or a Sunday, on which commercial banks generally are open for business in Salt Lake City, Utah, and New York, New York. "Card" means a Visa or MasterCard charge card issued by Chase pursuant to this Agreement. "Card Cancellation Confirmation" means a written statement executed by an Authorized Signer, in form and substance satisfactory to Chase, identifying certain Cards by Account numbers and Cardholder names and confirming (i) that the City has retrieved and destroyed such Cards, or (ii) that the City used reasonable efforts to retrieve such Cards but was unable to do so. "Cardholder" means an individual in whose name a Card is issued or any other employee, officer or director of, or other individual designated by, the City as being expressly authorized to use a Card or Account. "Cardholder Agreement" means an agreement between Chase and a Cardholder governing the use of a corporate travel and entertainment Card, as amended from time to time. "Ordinary Course Transactions" means all Transactions that arc made for the business purposes of the City or otherwise benefit the City directly or indirectly. "Other Transactions" means all Transactions which are not Ordinary Course Transactions. "Transaction" means a purchase, a cash advance, the use of a convenience check, or any other account activity that results in a debit to an Account. "Unauthorized Transaction" means any Transaction by a person, other than the Cardholder to whom the relevant Card was issued, who was not authorized to use such Card or Account by either such Cardholder or the City and from which Transaction neither the Cardholder nor the City receives any direct or indirect benefit. SECTION 2 CARD ISSUANCE 2.1 PROGRAM PARTICIPATION. Subject 10 the terms of this Agreement, Chase shalt issue Cards to, and/or establish Accounts for, the City with such capabilities as may be elected by the City on Exhibit A hereto. The City and Cardholders shall use the Cards and Accounts for business or commercial purposes only and not for personal, family, or household purposes. The City shall instruct all Cardholders to use the Cards and Accounts strictly for business or commercial purposes. 2.2 EMBOSSING; LICENSE TO USE MARKS. Chase shall prepare Cards bearing the Cardholder's name or a description of a vehicle by make, model and vehicle identification number, as appropriate, and, if elected, the City's name, trademark, or logo (the "Marks"), in a form supplied by the City and conforming to Chase and Visa/MasterCard guidelines. If the City elects to have its Marks embossed on the Cards or provides them to Chase for other uses, the City hereby grants Chase a non-exclusive limited license to apply the Marks to the Cards solely for use in connection with the Program and for no other purpose. 2.3 CARD DELIVERY. Chase may deliver Cards and/or related materials to the City or directly to the relevant Cardholders. Upon its receipt of any Card, the City shall promptly deliver such Card to the Cardholder named thereon together with any related materials supplied by Chase. From time to time during the term of this Agreement, Chase may recommend and/or implement security procedures regarding the custody and handling of Cards. The City agrees to comply with such security procedures. 2.4 CREDIT LIMITS; CREDITWORTHINESS. (a) Subject to the terms of this Agreement and the Cardholder Agreements, Chase shall authorize extensions of credit with respect to (a) each Card or Account up to a specified total dollar amount (the "Account Credit Limit"), and (b) all Cards and Accounts up to a specified total dollar amount (the "Aggregate Credit Limit"). In no event shall Chase be obligated to grant credit in excess of any applicable credit limit. Chase may at any time investigate (i) the creditworthiness of any Cardholder to whom a Card is to be or has been issued, and (ii) the financial condition of the City, in connection with the issuance of Cards, maintenance of Accounts, and establishment of credit limits. (b) Chase at any time may cancel or suspend the right of any Cardholder to use any Card or Account, decline to issue or establish any Card or Account. As a result of its periodic evaluation of the City's financial condition, Chase may increase or decrease any Account Credit Limit or the Aggregate Credit Limit, modify the time Chase Manhattan Bark USA, N.A. Shared/SMComma ram SlCtudlCorrpliante/Bileen'sDo cnts/Cityof]se ai/CityofMisestl0.2a94Joe Confidential for payment of Corporate Liability obligations, or require additional collateral. At the option of Chase, it may suspend the rights of all Cardholders to use any Cards or Accounts, without notice, if more than one percent of Cardholders are more than 60 days past due. 2.5 ISSUANCE, RENEWAL, REPLACEMENT AND CANCELLATION OF CARDS. (a) Promptly following its execution of this Agreement, the City will provide to Chase a written or electronically transmitted request (a "Card Request") which shall include the names, titles, and corporate addresses of those Cardholders and the make, model and vehicle identification number of vehicles to whom or for which the City wishes Chase to issue a Card or establish an Account, The City may, from time to time, submit additional Card Requests authorizing the issuance of new Cards or the establishment of new Accounts. The City agrees not to submit, without the prior written consent of Chase, a Card Request with respect to any person whose Card privileges have previously been canceled. At the option of the City, it may guarantee the charges associated with a particular Cardholder who would not otherwise qualify to utilize the Cards. Each Card Request must be executed by a person (an "Authorized Signer") for whom Chase has an effective Authority Certification. An "Authority Certification" shall mean a certificate of an authorized officer or representative of the Ciry certifying to the identity of the then -incumbent officers, partners, members or other representatives of the City who are authorized to execute Card Requests and certifying the authenticity of a specimen signature of each Authorized Signer listed in such Authority Certification. The Authority Certification most recently received by Chase shall supersede any prior Authority Certification unless specifically stated to the contrary in writing. (b) Where emergency issuance of a Card is requested, Chase may fulfill such request at an additional charge as set forth on Exhibit B. The billing for such charge shall occur in the next billing statement for the relevant Account. Unless Chase receives contrary written instructions from the City, and subject to Chase's rights hereunder, Chase shall replace each expiring Card with a replacement Card at least 30 days prior to the Card's expiration date. (c) Each Cardholder shall be required to sign the Card issued to such Cardholder and shall be subject to the terms of the Cardholder Agreement, if any.. (d) The City shall promptly make a request pursuant to Section 2.5(e) that a Card or Account be canceled, or that the authority of any Cardholder to use a particular Card or Account be terminated, as the case may be, if'. (i) the City or a Cardholder knows of or suspects the loss, theft or possible unauthorized use of a Card or Account. In such event, the Ciry shall not be liable for any Transactions occurring on the Card or Account after the effective time of such request. In addition, the City shall not be liable for any Transactions, resulting from Card theft or other fraudulent use by non - Cardholders, occurring on the Card or Account prior to the effective time of such request if the suspected loss, theft or unauthorized use was promptly reported to Chase in accordance with Section 2.5(e), unless such theft or fraudulent use occurs as a result of the City's lack of reasonable security precautions and controls surrounding the Cards or Accounts or such use results in a benefit, directly or indirectly, to the City or any Cardholder; (ii) the City wishes to cancel a Card or Account or terminate the authority of any Cardholder to use a particular Card or Account. In such event, the City shall not be liable for any Transactions occurring on the Card or Account (or Transactions made by such Cardholder, as the case may be) after the effective time of such request; or (iii) the Cardholder's employment or other relationship with the City is terminated. In such case, the City agrees to provide such documentation or information including the home address and home phone number of the Cardholder along with such actions as Chase may request in connection with a corporate liability waiver claim with Visa, MasterCard or any insurer relating to such terminated Cardholder. Any balance outstanding associated with such Cardholder shall become immediately due and payable. Chase will make available to the City any corporate liability waiver coverage extended by Visa or MasterCard. 1f the effective time of the City's request is not within two Business Days after such termination, or if the City fails to provide the documentation or take the actions requested by Chase as a result of such termination, the City shall be liable for all Transactions with respect to such Cardholder's Card and Account occurring prior to the effective time of the City's request but shall not be liable for any Transactions occurring on the Card or Account after such time. (e) Each request made pursuant to Section 2 5(d) shall be made by telephone (at 1400-270.7760 or such other number as Chase may provide), fax, electronic mail, or paymentNetTM and shall specify (i) the relevant Cardholder's name, Account number and last known home and business address, and (ii) such other information as the City shall deem appropriate or Chase shall reasonably request. The City's request shall be deemed effective when Chase receives such request and makes the corresponding changes in its processing system (which changes shall be made promptly, taking into account the mode of transmission and time of receipt). 2,6 TRANSACTION DATA, SECURITY PROCEDURES AND ACCOUNT MAINTENANCE. (a) Unless an alternative reporting system is selected in Exhibit B, Chase shall make Card and Account transaction data available to the City through Chase's paymentNetTM Internet -based reporting system. Through PaymentNetTM, Chase shall provide the City with password -protected daily access to Card and Account transaction data and other reports at no additional charge to the City. Such reporting shall be provided in accordance with such manuals, training materials and other information as Chase shall provide from time to time, If the City selects an alternative reporting system, the City's use of such alternative system shall be subject to the terms contained in a Transaction Data Addendum attached hereto. (b) For the use of PaymentNetTM the Ciry agrees to be bound by and to adhere to the following security procedures, terms, and conditions (the "Security Procedures"), which Chase may revise from time to time upon written notice to the City: (i) PaymentNetTM may be accessed solely through the use of a user identification code and password (collectively, the "Access Code") Chase shall assign an initial Access Code to an individual authorized to create and disseminate additional Access Codes (such individual is referred to as the "Program Administrator"). An authorized officer of the City shall designate a Program Administrator, (ii) The City Program Administrator shall assign Access Codes to Users designated by the City as authorized to (I) access and use the Service, (2) create and disseminate Access Codes to individuals who are authorized to use PaymentNetTM (such individuals are referred to as "Authorized Users") and (3) designate additional Program Administrators within the City. The City shall be responsible for ensuring that each Program Administrator creates and disseminates Access Codes in accordance with Chase's Security Procedures, (iii) The City shall safeguard all Access Codes and be responsible for all use of Access Codes issued by the Program Administrator. Chase may conclusively presume that all business conducted using an Access Code emanates from a Program Administrator or Authorized User and is conducted in the City's name. Any unauthorized use of an Access Code (except for unauthorized use by a Chase employee) shall be solely the responsibility of the City. (c) The City may from time to time, and in accordance with guidelines established by Chase, perform certain account maintenance functions, including, without limitation, adjustment of Account Credit Limits and blocking of Visa and MasterCard Merchant Category Codes ("MCCs") The Ciry will not hold Chase liable for (i) actions taken by Chase, in good faith and without negligence, upon the instructions of the City or any Authorized Signer, or (ii) any maintenance activity performed by any member of the City Group or any other person using a City password. SECTION 3 CARD AND ACCOUNT USE 3.1 PURCHASES. Cardholders may use Cards and Accounts to purchase, in the normal course of business, goods and services in accordance with the MCCs selected and/or blocked at the City's request and that do not exceed any transactional limits established by the City, Chase shalt use reasonable efforts to deny requests for purchase authorizations that fall outside such parameters or it believes is an Unauthorized Transaction, and to deny requests for cash advances for Cardholders who are not permitted to obtain cash advances or who have exceeded the predetermined cash advance limit, provided Transaction authorization is required, Chase Manhattan Bank USA, N.A. 2 Confidential SharedlSMCommonIMIS/Card1CorgplianceEiterssaDucumerrts.CilyofMiami/City Ntiami,10-26A4.doc The parties acknowledge, however, that authorizations and declinations are necessarily based on the accuracy of the Transaction data transmitted to Chase. Under no circumstances shall Chase be liable to the Cardholder or the City (nor shall the Cardholder or the City be relieved of its obligation to pay the amounts charged or advanced) in the event any such Transactions are permitted on the basis of inaccurate or misleading data or other factors beyond the reasonable control of Chase. 3.2 USE OF CARDS. Each Transaction is subject to the terms and conditions of the Cardholder Agreement, if any, in effect at the time of the Transaction. Chase shall have no obligation or responsibility to the City or to any Cardholder in the event that any merchant, entity or person refuses to honor a Card or Account. A Card or Account may be used only by the Cardholder to whom it is issued or who is authorized to use it, as the case may be, and may not be transferred to another Cardholder or any other person or entity. Without limiting any other rights of Chase hereunder or under applicable law, Chase may refuse to authorize any Transaction in the event that: (a) any balance owed in respect of the Account to which such Transaction relates or any balance owed by the City on any Account, is past due; (b) the amount of the Transaction plus the outstanding balance (including Transactions authorized but not yet posted) of all Accounts would exceed the Aggregate Credit Limit; (c) the amount of the Transaction plus the outstanding balance (including Transactions authorized but not yet posted) of the relevant Account would exceed the Account Credit Limit for such Account; or (d) any other reason exists for declining a Transaction as set forth herein, in the Cardholder Agreement or the operating regulations of Visa or MasterCard or under applicable law. 3.3 OBLIGATIONS OF THE CITY. The City shall: (a) establish and maintain a process to ensure the timely and accurate reimbursement of all legitimate business expenses to its Cardholders; (b) not exceed or permit Cardholders to exceed the Aggregate Credit Limit or any Account Credit Limit; (c) return to Chase, or provide a Card Cancellation Confirmation with respect to, all Cards and related Program materials upon the expiration or termination of this Agreement; and (d) make all reasonable attempts to ensure that each Cardholder complies with the terms of the Cardholder Agreement, if any. 3.4 REWARDS PROGRAM; DISCLOSURE OF ACCOUNT INFORMATION. (a) Under a "Rewards" incentive program, participating Cardholders may be eligible to earn awards by using their Cards for travel and entertainment purchases. Solely for the purposes of such Rewards program, Chase may be required to transmit to a third party or its designated program administrator monthly reports showing, for each participating Cardholder, the net amount charged to such Cardholder's Account for travel and entertainment purchases for the reporting period. (b) The City or its Authorized Signer may designate some or all of the City's Cardholders as "participating" Cardholders for purposes of this Section 3.4. If any of its Cardholders are designated as "participating" Cardholders, the City shall pay to Chase all fees, charges and assessments imposed(whether imposed on Chase, the City, the Cardholders or otherwise) in respect of the administration of the Rewards program for such participating Cardholders, including, without limitation, all fees, charges and assessments related to enrollment. redemption, and administration, the cost of all bonus miles and other awards given under the program, and any per -Card or per -Account fees. All amounts payable under this Section 3.4 shall be due and payable 14 days after the date of Chase's invoice with respect thereto. 3,5 EXPENSE REPORTING; DISCLOSURE OF ACCOUNT INFORMATION. At its discretion, the City or its Authorized Signer may instruct Chase to furnish specific Transaction data to third parties that provide expense reporting products or services to the City. Solely for the purpose of facilitating the City's expense reporting objectives, Chase shall transmit to such third parties the Transaction data identified in such instructions. 3.6 CITY OBLIGATIONS RELATING TO DISCLOSURE OF ACCOUNT INFORMATION. The City shall clearly disclose to each of its Cardholders the extent, if any, to which Chase will provide Transaction and Account information to third parties pursuant to Sections 3.4 and 3.5 above. The City, on behalf of the City Group, hereby releases and agrees to indemnify and hold harmless each member of the Chase Group from and against any loss, claim, damages, liability, cost, expense, action or cause of action whatsoever that any Cardholder, any member of the City Group, or any other third party may have against any member of the Chase Group, or to which any member of the Chase Group may become subject, arising out of or relating to the provision by Chase of Transaction or Account information to third parties pursuant to Section 3.4 or Section 3,5, SECTION 4 LIABILITY FOR USE 4.1 PROMISE TO PAY. (a) Regardless of any established credit limits, the City agrees to pay and perform when due all of its Obligations, As used herein, the term "Obligations" means all obligations of the City under this Agreement, including without limitation: (i) with respect to contingent liability travel and entertainment Accounts, the City's obligations described in Exhibit A, and (ii) with respect to all other Accounts, the indebtedness, obligations and liabilities arising under such Accounts, including, without limitation, all charges, fees and other amounts payable under or in connection with each such Account; and (iii) any and all costs (including attorneys' fees) incurred in enforcing the obligations of the Cardholder and the City hereunder. (b) The City's Obligations with respect to contingent liability travel and entertainment Accounts shall be enforceable irrespective of the validity, legality or enforceability of the Cardholders' obligations and shall not in any way be affected by or conditional upon (i) any action taken under the Cardholder Agreements or the exercise of any right or power thereby conferred, (ii) the bankruptcy or similar proceedings involving or affecting a Cardholder, the City or others, (iii) any modification, alteration, or amendment of, or addition to, any Cardholder Agreement whether with or without the City's knowledge or consent, or (iv) any other action, inaction or circumstance whatsoever (with or without notice to or knowledge of or consent by the City) that may in any manner vary the risks of the City or might otherwise constitute a legal or equitable discharge of any surety or guarantor. The City hereby waives all defenses based on occurrences of the types described in clauses (i) through (iv) above. (c) Except as expressly set forth herein, the City hereby waives all presentments; demands for performance or payment; protests; notices of protest, nonperformance, dishonor, default and non-payment; notices of the existence, creation or occurrence of new or additional obligations by the Cardholders; and all other notices or formalities. (d) All amounts due under the Cards and Accounts shall be billed directly to the City via periodic statements and shall be payable in full upon receipt by the City, except as otherwise provided in this Agreement with respect to contingent liability travel and entertainment Accounts, Such statements may, at Chase's option, be sent by mail or made available electronically via paymeriLNetTM, the Internet, or other means. The City shall remit payment to Chase under the terms described herein. (e) All payments hereunder shall be made in U.S. dollars and by wire transfer (or such other payment arrangement as is mutually agreed upon by the City and Chase). All charges will be posted to Accounts in U.S. dollars Transactions in foreign currencies will be converted to U.S. Dollars at the exchange rate determined by MasterCard (or its affiliates) or Visa (or its affiliates), using their then current currency conversion procedures and charges. Such Transactions will be subject to any applicable fees described in Exhibit B. The currency conversion rate used on the conversion date may differ from the rate in effect on the date a Card or Account is used. (f) With respect to Account balances subject to the City's guaranty (as described on Exhibit A), in the event that any amount owing by a Cardholder remains unpaid for 61 days after the date of the first invoice on which such amount appears and Chase believes that the City may be liable for such amount pursuant to this Agreement, Chase may invoice the City for such amount. Upon receipt of the invoice, the City shall immediately pay to Chase the full amount thereof for which it is liable pursuant to this Agreement. If the City determines that the invoice contains charges for which it is not liable, the City must submit documentary evidence in support thereof, in form satisfactory to Chase, as well as submit any documentation and take any actions required by Visa or MasterCard in connection with its corporate liability waiver program, in the event such coverage is available. (g) Upon the earlier of termination, notice of intent terminate, or notice of intent not to renew this Agreement, the City's Obligations with respect to contingent 3 Chase Manhattan Bank USA, N.A. Sh•raNICoramonfillIS/Card/Cowliance/Eilttn'snocannents/Cjiy Miami/City oft iiami.1020A4.doc Confidential liability travel and entertainment Accounts shall become jointly and severally liable for any and all amounts that are presently or may become due and outstanding under this Agreement. 4.2 DISPUTED AMOUNTS. (a) The City and its Cardholders shall use their best efforts to resolve all business -to -business purchase disputes directly with the relevant merchants, including, without limitation, any disputes relating to purchase price discrepancies or quality, warranty, or performance issues. (b) The City or Cardholder may dispute an amount reflected on a billing statement (unless the Transaction resulted from the use of a Card on which no Cardholder's name is embossed, in which event the City or Cardholder may not dispute such amount based an fraud) if (i) the amount does not reflect the actual amount of the Transaction; (ii) the Transaction did not result from the use of the relevant Card or Account; or (iii) the amount being disputed is a fee that is not properly accrued under this Agreement, The City or Cardholder shall notify Chase in writing of its intention to dispute an amount within 60 days following the date of the billing statement on which the disputed Transaction or fee first appears. Chase shall promptly investigate the dispute. If Chase determines that the amount is properly payable, the City or Cardholder, as the case may be, wilt remit such amount to Chase on the City's (or the Cardholder's, as the case may be) receipt of its next billing statement. Fees (including interest, finance charges, or late fees) may accrue with respect to the disputed amount pending resolution of the dispute only if it is determined that the amount is properly payable. 4.3 CIIARGEBACKS. In the event that any Transaction is posted to an Account involving fraud, unauthorized use, or any other circumstance under which the merchant may be held liable under applicable Visa or MasterCard rules, the City or Cardholder shall so notify Chase in writing. Chase shall attempt to charge the Transaction back to the merchant in accordance with Visa or MasterCard procedures; provided, however, if the Transaction resulted from the use of a Card on which no Cardholder's name is embossed, no chargeback will be granted for such Transaction. Any accepted chargeback will be credited to the City's or Cardholder's next billing statement. The City or Cardholder shall not be relieved of liability for the Transaction if the chargeback is rejected in accordance with Visa or MasterCard rules. SECTION 5 PROGRAM FEES, TERM AND TERMINATION OF AGREEMENT 5.1 FEES. The City agrees to pay to Chase all applicable fees described in Exhibit B. Such fees will be included in the billing statement for the Billing Cycle in which the fees accrue. 5.2 TERM. This Agreement shall have an initial term (the "Initial Term") of five years commencing on the date hereof and shall be renewed automatically for successive two-year terms (each a "Renewal Term") unless written notice of termination is given by either party at least 90 days prior to the end of the Initial Term or any Renewal Term. In addition, either party may terminate this Agreement at any time upon 90 days' prior written notice to the other party. Prior to expiration or termination of this Agreement for any reason, the City agrees to either retrieve all Cards from Cardholders, cut such Cards in half, and return them to Chase; or provide a Card Cancellation Confirmation with respect to such Cards. 5.3 DEFAULT. As used in this Agreement, the term "Default" shall mean'. (i) failure of the City to remit payment to Chase in accordance with the terms hereof; (ii) the failure of either parry to comply with any other term of this Agreement or any other agreement between the parties, provided such failure is not remedied within 15 days of the defaulting party's receipt of written notice from the other party specifying the breach; (iii) the representation by the City of any facts, either in this Agreement or in its financial information provided to Chase in connection with this Agreement, that prove to have been materially incorrect or misleading when such representation was made; (iv) the filing by or against either party of any petition in bankruptcy, insolvency, receivership, or reorganization or pursuant to any other debtor relief law or the entry of any order appointing a receiver, custodian, trustee, liquidator, at any other person with similar authority with respect to the assets of either party; (v) the insolvency, dissolution, reorganization, assignment for the benefit of creditors or any other material adverse change in the financial condition of either party; (vi) the entry of any adverse judgment, order, or award against the City that has a material adverse impact on the financial condition of the City; (vii) any change in control or material change of ownership of the City or any event having a material adverse financial impact on the City or a detrimental effect on the City's ability to perform the Obligations, including, without limitation, the taking of any action by the City to consolidate or merge or sell any substantial parr of its assets; (viii) any default by the City under the terms of any material indebtedness owed by the City to any third party or other Chase related entity; (ix) fraudulent or other unauthorized use of Cards or Accounts or credit losses with respect thereto exceeding Chase's operating tolerances; or (x) failure of the City to satisfy the requirements of Chase under Section 2.4 (b). 5.4 REMEDIES; DAMAGES. (a) Either party may terminate this Agreement at any time upon the Default of the other party. Except where a remedy is expressly provided herein or as otherwise provided in Section 5 4(b) or (c), termination of this Agreement will be a party's sole remedy for breach; provided, that no termination or expiration of this Agreement shall release or discharge the City from the payment of any amount otherwise payable under this Agreement. (b) Upon a Default by the City, Chase may, in its sole discretion, suspend all services and obligations hereunder or may shorten the Billing Cycle in lieu of termination of this Agreement until such time as Chase determines 10 its satisfaction that such Default has been cured. By suspending its services and obligations, Chase shall not be deemed to have waived any right which it may have, whether as a result of the Default or otherwise, to terminate this Agreement. (c) A breaching party shall be liable for any actual damages caused by its breach, but neither party will be liable under any provision of this Agreement for any punitive or exemplary damages, or for any special, indirect or consequential damages (including, without limitation, costs incurred in developing and implementing the Program, lost revenues, lost profits, or lost prospective economic advantages) arising from or in connection with any performance or failure to perform under this Agreement, even if such party knew or should have known of the existence of such damages, and each party hereby releases and waives any claims against the other parry for such damages. (d) Chase, in addition to any rights available toil under applicable law, shall have the right to immediately accelerate and demand payment of the total balance if it deems itself insecure and to set off against any Liabilities, all monies owed by Chase in any capacity to any of them, whether or not due, and Chase shall be deemed to have exercised such right to set off and to have made a charge against any such money immediately upon the occurrence of any of the foregoing events of default (or if Chase deems itself insecure) even though such charge is made or entered on the books of Chase subsequent to those events. (e) Chase's liability to City hereunder shall be limited to direct damages arising from Chase's gross negligence or willful misconduct. Regardless of the form of action, in no event shall Chase be liable for any indirect, consequential, punitive, exemplary or special damages, even if Chase is advised as to the possibility of such damages. Except for liability which City may otherwise incur under this Agreement, City's liability to Chase hereunder shall be limited to direct damages arising from City's gross negligence or willful misconduct. Regardless of the form of the action, in no event shall City be liable for any indirect, consequential or special damages, even if City is advised as to the possibility of such damages. Without limiting the generality of anything contained in this section, Chase shall not be liable for and damages of any kind, no matter what the cause, that arise, occur or result from; (i) the City using Java applets or other Java applications, (ii) the City's opening ports on its firewalls, or (iii) problems with or defects in equipment, software or services not provided by Chase. SECTION 6 MISCELLANEOUS 6.1 REPRESENTATIONS AND WARRANTIES. Each parry represents and warrants that this Agreement constitutes the legal, valid, binding and enforceable agreement of such party and that its execution and performance of this Agreement (a) do not constitute a breach of any agreement of such party with any third party, or of any duty arising in law or equity, (b) do not violate any law, rule or regulation applicable to it, (c) are within its corporate powers, and (d) have been authorized by all necessary corporate action of such party. 6.2 NOTICES. Except as otherwise provided herein, any notice or other communication to be given under this Agreement shall be in writing and delivered personally, by overnight delivery via a nationally -recognized delivery service or by prepaid registered or certified mail, addressed to the relevant party at its address for notices specified on Exhibit B, or to such other address as such party may from time to time designate in writing to the other. The date of delivery of a notice (i) delivered personally shall be deemed to be the date delivered; (it) sent by overnight delivery shall be deemed to be the following day; and (iii) sent by mail shall be 4 Chase Manhattan Burk USA, N. A. easiftrdenlial deemed to be three Business Days after the date on which such notice is deposited in the United States mail. 6.3 CHANGES. Changes to this Agreement shall be effective only if made by written agreement signed by both parties. Changes to any Cardholder Agreement shall be effective immediately upon receipt by the Cardholder of notice of such changes. 6.4 FINANCIAL STATEMENTS; NOTICE OF 13OND RATING CHANGE. The City agrees to furnish Chase copies of its consolidated audited financial statements as soon as available, but not later than 120 days following the end of each fiscal year of the City. All such financial statements shall include an income statement for the applicable fiscal year and a balance sheet, shall have been prepared in accordance with generally accepted accounting principles, consistently applied, and shall be in accordance with the books and records of the City. The City shall provide, in a timely manner, such other current financial information concerning the City as Chase may request. If applicable, the City will notify Chase within five business days of any change in the City's bond rating. • 6.5 ASSIGNMENT. This Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their respective successors and assigns; provided, that the City may not assign this Agreement or any interest, payment, or rights hereunder without the prior written consent of Chase. 6.6 FORCE MAJEURE. 1f either party is rendered unable, wholly or in part, by a force outside the control of such party (including, but not limited to, an act of God, war, fire, flood, explosion, act of governmental authority, strike, civil disturbance or breakdown of telephone, computer or automated mailing equipment) to carry out its obligations under this Agreement (other than a payment obligation), or Chase is notified by a state or federal regulatory body or by Visa or MasterCard that any aspect of the Program or this Agreement does not comply with any applicable law, regulation, rule, policy, or order applicable to Chase, the affected party shall give the other party prompt written notice to that effect. Thereafter, the affected obligations of the parry giving the notice shall be suspended and the failure to perform such obligations shall not be deemed a breach of or Default under this Agreement so long as the affected party is unable to so perform for such reason. A party excused from performance pursuant to this Section 6.6 shall exercise all reasonable efforts to continue to perform its obligations hereunder and shall thereafter continue with reasonable due diligence and good faith to remedy its inability to so perform. 6.7 ENTIRE AGREEMENT. This Agreement contains the entire understanding between the parties on the subject matter hereof and supersedes all prior discussions, representations and agreements between the parties- All exhibits and addenda attached hereto are hereby incorporated by reference and made a part of this Agreement. 6.8 SEVERABILITY AND WAIVER. 1f any portion of this Agreement is stricken as an invalid provision, the remaining portions shall remain in full force and effect and shall continue to be binding upon the parties. Failure of either party to exercise any of its rights under this Agreement in a particular instance shall not be construed as a waiver of those rights or any other rights for any purpose. 6.9 [SECTION INTENTIONALLY LEFT BLANK] 6.10 SURVIVAL. Sections 4, 69, and 6 11 shall survive the termination or expiration of this Agreement. 6.11 CONFIDENTIALITY. All information furnished by either party in connection with this Agreement, the Program, or the Transactions contemplated hereby shalt be kept confidential (and shall be used by the other party only in connection with this Agreement), except to the extent that such information (a) is already lawfully known when received, (b) thereafter becomes lawfully obtainable from other sources, (c) is required to be disclosed in any document filed with the Securities and Exchange Commission, the Federal Deposit Insurance Corporation, or any other agency of any government, or (d) is required by law to be disclosed, provided that notice of such disclosure has been given (when legally permissible) by the party proposing to make such disclosure, which notice, when practicable, shall be given sufficiently in advance of the proposed disclosure to permit the other party to take legal action to prevent the disclosure, Upon termination of this Agreement, each party shall promptly cause all copies of documents or extracts thereof containing any such information and data which has been provided by or which relates to the other party to be returned to such other party; provided, that each party may retain in its files copies of such materials as it shall deem necessary solely for archival purposes. 6.12 NAME AND TRADEMARK. Except as otherwise provided herein, neither party shall use the name or logo of the other party without such party's written consent, 6.13 VISA AND MASTERCARD FEE ADJUSTMENTS. In the event that there is a change deemed by Chase to be material in the way Chase is compensated by Visa or MasterCard, Chase may seek to re -negotiate the financial terms of this Agreement. The City shall have no obligation to renegotiate such terms; provided, that if the parties cannot agree on an adjustment of such terms, then Chase at its option may (a) allow this Agreement to remain in effect without any such adjustment, or (b) terminate this Agreement upon written notice to the City. 6.14 RELATIONSHIP OF PARTIES. Nothing contained in this Agreement shall be construed as constituting or creating a partnership, joint venture, agency, or other association or relationship between Chase and the City. To the extent that either party undertakes or performs any duty for itself or for the other party as required by this Agreement, the party shall be construed to be acting as an independent contractor and not as a partner, joint venturer, or agent for the other party. 6,15 TAXWARE SYSTEM. Chase may make available to the City the Taxware system for review of its transactions. Chase is a licensee of Taxware and is merely providing the Taxware system as a service to Chase's customers. If the City chooses to utilize the Taxware system, it understands that Taxware will use reasonable efforts to ensure that its information is current and accurate, but due to rapidly changing tax rates and regulations, the City shall be responsible to determine the applicability of the information to its data and confirm its accuracy. The City agrees that neither Taxware nor Chase will be liable for any damages including direct, indirect, incidental, special or consequential damages, arising out of the use of the Taxware system. 5 Chase ivtanbenan Bank LSA, NA. Confidential IN WITNESS WHEREOF, the parties hereto have by their duly authorized representatives executed this Agreement as of the day and year first written above, CHASE: CHASE MANHATTAN BANK. USA, N.A. By: Name: Title: CITY: CITY OF MIAMI By: Name: Tide: City Attestation: The undersigned, a duly authorized officer or representative of the City, does hereby certify that the City has been duly authorized to enter into and perform this Agreement and that the person signing above on behalf of the City, whose execution of this Agreement was witnessed by the undersigned, is an officer, partner, member or other representative of the City possessing authority 10 execute this Agreement. By: Name: Title: • *Note: The person signing the attestation shall be someone different from the person signing above on behalf of the City. 6 Chase Manhattan Bank USA, N.A. Confidential