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Ordinance No. 11,777ORDINANCE NO. 11,777 00ft AN ORDINANCE OFTI-II... CITY COUNCIL OP MIL' CITY OF BAY'I'OWN, TEXAS, AUTHORIZING A COOPERATIVI,' PURCHASING AGREI-ImEN'l- WITH THE CITY OF FORT WORTH, Tf'' XAS; AUTHORIZING A PAR'I"'ICIPATION AGRI- EMINT WITH JP MORGAN CHASE BANK, N,A., FOR A PURCHASING CARD SYSTEM; MAKING OTHER PROVISIONS RELATED THERETO- AND PROVIDING FOR rt-[E EFFECTIVE DATE THEIMEOF'. * ****** *# ***** ** *** ***** ***** ***** *** ** **** ********** ** ************ ****4 ; * ** * ** BE IT ORDAINED BY TFIE CITY COUNCIL 01" TI-11' CITY OF BAYTOWN, 1-EXAS: Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes and directs the City Manager to execute and the City Clerk to attest to a Cooperative Purchasing Agreement with the City of Fort Worth, Texas. A copy of the agreeirient, is attached hereto as Exhibit -A" and made a part hereof for all intents and purposes. Section 2: That the City Council of the City of Baytown, 71"exas, hereby authorizes and directs the City Manager to execute and the City Clerk to attest to a Participation Agreement with JP Morgan Chase Bank, N.A., for a purchasing card system. A copy of" the agreenient, is attached hereto as Exhibit "B" and made a part hereof for a] I intents and purposes. Section 3: That the City Council of the City of Baytown authorizes payment to JI) Morgan Chase Bank, NA, in accordance with the agreement authorized in Section 2 hereof, Section 4: This ordinance shall take effect immediately from and after its passage by the City Council of the City of Baytown, 117 IN,rRODLJCEI-), READ and PASSED by the affirmative the City Council of the City of Baytown this the I I"' day of October, 2011, ; �X— o 1 14 DONCARLOS, Ma'yor ATTEST: err � ETICIA B APPROVED ASTO I_. _. ACIO RAMIREIZ., SR., Cit 1 ttorney Li- Exhibit "A" City of Fort Worth & City of Baytown Cooperative Purchasing Agreement FORT WORTH CITY SECRETARY CONTRACT NO. COOPERATIVE PURCHASING AGREEMENT This Cooperative Purchasing Agreement ( "Agreement ") is made and entered into as of the date written below between the City of Baytown ( "Baytown ") and the City of Fort Worth, Texas ( "Fort Worth "). WHEREAS, both Baytown and Fort Worth have each determined a need for a cooperative agreement to purchase like goods and services to avoid duplicate procurement efforts and obtain the benefits of volume purchasing; and WHEREAS, Baytown and Fort Worth are authorized by Section 271.102 of the Local Government Code to pursue mutually beneficial and cooperative purchasing programs. NOW, THEREFORE, for and in consideration of the mutual obligations and benefits contained herein, Baytown and Fort Worth agree as follows: SECTION 1. The purpose of this Agreement is to provide Baytown and Fort Worth with additional purchasing options by satisfying the provisions of Section 271.102 of the Local Government Code. SECTION 2. The parties agree that each of the parties shall respectively designate a person to act under the direction of, and on behalf of, the designating party (the "Designated Representative "). SECTION 3. At the request of the other party, a party that enters into a contract with a vendor for goods or services (the "First Purchasing Party ") shall attempt to obtain the vendor's agreement to offer those goods and services to the other party (the "Second Purchasing Party ") for the same price and on the same terms and conditions as have been offered to the First Purchasing Party. If the vendor so agrees, and if the Second Purchasing Party is agreeable to such terms and conditions, the Second Purchasing Party may enter into its own separate contract with the vendor for the purchase of such goods or services. SECTION 4. Unless otherwise agreed between the Designated Representatives, payments for a purchase made by the Second Purchasing Party shall be paid directly to the vendor and not to the First Purchasing Party. The Second Purchasing Party shall have the responsibility of determining whether the vendor has complied with any provisions in its contract with the vendor, including but not limited to those relating to the quality of items and terms of delivery, and shall be responsible for enforcement of its contract against the vendor, including all cost of enforcement. SECTION 5. This Agreement will be subject to all applicable federal, state and local laws, ordinances, rules and regulations. Pagel of 3 City of Fort Worth & City of Baytown Cooperative Purchasing Agreement SECTION b. This Agreement may be terminated by either party, without cause or penalty, upon not less than thirty days written notice to the other party. SECTION 7. The parties acknowledge that each party and, if it so chooses, its counsel have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party must not be employed in the interpretation of this Agreement or any amendments or exhibits hereto. SECTION 8. If any action, whether real or asserted, at law or in equity, arises on the basis of any provision of this Agreement, venue for such action shall lie in state courts located in Tarrant County, Texas or the United States District Court for the Northern District of Texas — Fort Worth Division. This Agreement shall be construed in accordance with the laws of the State of Texas. SECTION 9. If any term or provision of this Agreement is held to be illegal, invalid or unenforceable, the legality, validity or enforceability of the remaining terms or provisions of this Agreement shall not be affected thereby, and in lieu of each such illegal, invalid or unenforceable term or provision, the parties shall endeavor to agree to a legal, valid or enforceable term or provision as similar as possible to the term or provision declared illegal, invalid or unenforceable. SECTION 10. Execution of this Agreement does not obligate Baytown or Fort Worth to make any purchase, to pay any membership fee or to otherwise or in any manner incur any cost or obligation. SECTION 11. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, and all of which shall constitute but one and the same instrument. SECTION 12. The undersigned officers and/or agents are properly authorized to execute this Agreement on behalf of the parties hereto and each party hereby certifies to the other that any necessary actions extending such authority have been duly passed and are now in full force and effect. SECTION 13. All notices, requests, demands, and other communications which are required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given upon the delivery or receipt thereof, as the case may be, if delivered personally or sent by registered or certified mail, return receipt requested, postage prepaid, to the respective city representative set out below, or his/her designee. Page 2 of 3 City of Fort Worth & City of Baytown Cooperative Purchasing Agreement EXECUTED this CITY OF FORT WORTH 1000 Throckmorton Street Fort Worth, Texas 76102 Karen L. Montgomery Title: Assistant City Manager APPROVED AS TO FORM AND LEGALITY: Denis McElroy Assistant City Attorney Contract Authorization Marty Hendrix, City Secretary Date Page 3 of 3 day of , 201_. CITY OF BAYTOWN 2401 Market Street Baytown, TX 77520 Robert D. Leiper Title: City Manner Ignacio Ramirez, Sr. City Attorney Leticia Brysch, City Clerk Date PARTICIPATION AGREEMENT VJPMORGAW CHASE BANK.111A. THIS PARTICIPATION AGREEMENT (the "Participation Agreement") is made and effective this _ day of ("Effective Date"), by and between City of Baytown, a Texas municipality (the "Participant") and JPMorgan Chase Bank, N,A. or Chase Bank USA, m.*,ea may meoetemnmeo from time m time, (the 'oanx) each anational banking association, wvmrwsSSsTm: vvVeeeAs, pursuant m that certain Commercial Card Agreement d ted as of August a1 ouo7 (the "Commercial Card xomomenr)between City or Fort Worth (the ~C;iant")and the Bank, the Bank has agreed to provide commercial card services m the Client (the ^rwogram`) onthe terms and conditions of the Commercial Card Agreement, attached hereto and incorporated herein as Exhibit 1: and WHEREAS, the Participant desires to participate in the Program, subject to the terrns and conditions of the CommercW Card Agreement; NOW, THEREFORE, in consideration of the foregoing premises and the mutual agreements, provisions and covenants contained herein, the *artiesaQneoamYwUnws.- 1� mmonx@pna. Except mmotherwise provided herein, all capitalized terms used herein and not otherwise defined and which are defined in the Commercial Card Agreement shall be used herein as so defined in the Commercial Card Agreement, a, Mutuai Obligations. By their execution of this Participation Agreement, the Participant and Bark hereby agree to be bound by all the terms and conditions of the Commercial Cam Agreement as may be amended from time to time attached hereto as Exhibit This Participation Agreement awau remain in effect according to its te^nm without regard to the continued existence or enforceability of the Commercial Card Agreement with respect m the original purt|momumto. Ali references to-Coomr|m the Commercial Card Agreement shall be deemed m constitute references m the Participant hereunder, Without limiting the generality of the foregoing, the Participant further agrees that m shall bn responsible only for transactions and for fees, charges and other amounts due under the Commercial Card Agreement related ,o the use of Accounts wf the Participant pursuant o»the Commercial Card Agreement and that the Client shall not bwliable for any such transactions and for any such fees, charges and other amounts. 1 Incentives. For purposes of calculating rebates, Combined Charge Volume for each, Participant will begin to accrue nn the first day m the month following the date the Participation Agreement isexecuted. ,4. Notices, Notwithstanding the provisions nfthe Commercial Card Agreement, all notices and other communications required or permitted to be given under this Participation Agreement amam be in writing and ahe|| he effective on the date an which such nmmom is ecmmur received by the party m which addressed, AN notices shall be sent to the address set forth below or such other address as specified in a written form from one party |o the other. To the Bank: xPMorgan Chase Bank, N.A. 3nn South Riverside Plaza, Suite |1-1'o1we Chicago, IL 60670-0199 Attn: Commercial Card Contracts Manager To the Participant: City of Baytown 2401 Market St Baytown TX 77520 Attn: Drew Potts 5. Miscellaneous. This Participation Agreement shall be governed by and construed in accordance with the substantive laws of the State of Texas, and as applicable, federal law. Exclusive venue shall be in a court of competent jurisdiction in Harris County, Texas. The headings, captions, and arrangements used in this Participation Agreement are for convenience oniy and, shall not affect the interpretation of this Participation Agreement, This Participation Agreement may be executed in any number of counterparts, all of which, when taken together shall constitute one and the same document, and each party hereto may execute this Participation Agreement by sign�ng any of such counterparts, Pagel m2 IN WITNESS WHEREOF, the parries have caused this Participation Agreement to be duly executed as of the date first written above. BANK: By: Name: Title PARTICIPANT: By: Name: Title: Participant Attestation: The undersigned, a duly authorized officer or representative of Participant, does hereby certify that Participant has been duly authorized to enter into and perform this Participation Agreement and that the person signing above on behalf of the Participant, whose execution of this Participation Agreement was witnessed by the undersigned, is an officer, partner, member or other representative of Participant possessing authority to execute this Participation Agreement. By: Name: flo- Pago 2 of 2 Exhibit I CITY jp�� 7 COMMERCIAL CARD AGREEMENT This Commercial Card Agreement (the "Agreement ") is entered into as of ' 3'f ,3` , 200_2 between City of Fort Worth, a Home -Rule Municipal Corporation, situated in Tarrant, Oenton, Parker, and Wise, Counties, Texas (the "Client"), and JPMorgan Chase Bank, N.A. (the "Bank ") a national banking association. Commencing on the date of this Agreement, the Bank and the Client hereby agree that the Bank will provide the Commercial Card Program, as hereinafter defined, and the Client may participate in the Program subject to the terms and conditions of this Agreement. 1. Definitions. Terms defined in the singular shall include the plural and vise versa, as the context requires. "Access Code" means the user identification code and password assigned to individuals authorized by the Client, for use in connection with the Program or the System. "Account" means the Visa or MasterCard account number assigned to a Cardholder and/or the Client, the related account, and any Card bearing such account number. "Account Credit Limit" means the upper limit for an extension of credit for an Account specified by the Client from time to time and accepted by the Bank. "Agreement" means this Commercial Card Agreement as it may be amended from time to tune. "Association" means either MasterCard or Visa. "Authorized User" means individuals authorized by the Client to access and use the Program and System. "Business Day" means a day on which both the Bank and the Federal Reserve Banks are open for business. "Card" means a Visa or MasterCard card that is issued by the Bank with respect to an Account. "Card Request" means a written or electronic transmittal from the Client, requesting the Bank to issue a Card(s) or establish an Account(s). "Cardholder" means (i) an individual in whose name a Card is issued, and (ii) any other employee, officer, director, or person authorized by the Client or named Cardholder to use a Card or Account. "Cardholder Agreement" means an agreement between the Bank and a Cardholder, as amended from time to time, governing use of an Account. "Cash Transaction Module" ( "CTM ") means a System tool used in connection with the processing, management, and approval of cash transactions. "Convenience Checks" means a check written against an Account. "Contract Documents" means this Agreement in conjunction with City of Fort Worth RFP No. 07 -0068, Addendum #1 thereto, and Bank's Proposal submitted in response to RFP No. 07 -0068. RFP No. 07 -0068, Addendum # 1 thereto, and Bank's Proposal are each incorporated herein by this reference. "Client Account" means the account of the Client into which the outstanding balances of all Accounts are aggregated and for which the Client is liable. "Client Vendor" means a travel agent, travel agency or any other vendor of Client authorized by the Client to charge Transactions to an Account. JPMorgan Chase Bank, N.A. Page I of 16 "Corporate Liability" means the Client is liable for all Transactions on an Account and such liability shall be as agreed to by the parties and reflected on the Bank's records and subject to this Agreement. "Credit Limit" means the upper limit established for an extension of credit that the Bank may authorize in connection with this Program under this Agreement. "Credit Losses" means all amounts, including any related collection costs, due to the Bank in connection with any Account that the Bank has written off as uncollectible, excluding Fraud Losses. "Cycle" means the monthly period ending on the same day each month, or, if that day is not a Business Day, then the following Business Day or preceding Business Day, as systems may require or such other period as the Bank may specify. "Fraud Losses" means all amounts due to the Bank in connection with any Account that the Bank has written off as uncollectible as a result of an Account being lost, stolen, misappropriated, improperly used or compromised. "International Transaction" means any Transaction that is made in a currency other than U.S. dollars or is made in U.S. dollars outside of the United States of America. "MCC" means a Merchant Category Code as designated by Visa or MasterCard. "Losses" means all Credit Losses and Fraud Losses. "Marks" means the name, trade name, and all registered or unregistered service marks of the Client, the Association and the Bank. "MasterCard" means MasterCard International, Inc. "Program" means the commercial card system composed of Accounts, Card -use controls, and reports to facilitate purchases of and payments for, business goods and services, established in connection with the Contract Documents. "Program Administrator" means an individual authorized by the Client to perform various administrative and security functions in connection with the Program and System. "System" means the conduit through which the Client can access Account and Transaction data and reports. "Transaction" means a purchase, a cash advance, use of a convenience check, fees, charges or any other activity that results in a debit to an Account. "Visa" means Visa U.S.A., Inc. 2. Obligations of the Bank. In connection with the Client's participation in the Program, the Bank shall: A. Establish Accounts and where applicable issue Cards with such capabilities as may be elected by the Client and agreed to by the Bank from time to time. Any Cards and any Cardholder statements will be delivered to a U.S. address of the Client or Cardholder unless otherwise agreed. The Accounts are non - transferable and non - assignable. The Cards shall remain the property of the Bank. B. The Bank may investigate the identity of the Client and any proposed or existing Cardholder by obtaining, verifying, and recording personal identifying information, and may if reasonably necessary obtain such information from third parties. C. Make available to the Client any corporate liability waiver coverage extended by Visa or MasterCard in connection with suspected employee misuse of an Account. JPMorgm Chase Bank, N.A. Page 2 of 16 3. Obligations of the Client. in connection with the Program, the Client shall: A. Initially request a minimum often (10) Accounts in connection with the Program by submitting a Card Request. From time to time the Client may submit to the Bank a Card Request form for additional cards. The Card Request shall be in a form approved by the Bank, shall include all information required by the Bank, and shall be accompanied by such evidence of authority for the Card Request as the Bank may require. All Card Requests shall be delivered to the Bank in a secure, encrypted, or password protected format or by such other method as may be mutually agreed to by the parties. By submitting any Card Request, the Client represents to the Bank that the information contained therein is consistent with the Client's own records concerning the listed Cardholder or entity. The Client represents that the Cards and Accounts to be issued and established under this Agreement are substitutes for accepted cards and accounts, or will be sought and issued only in response to written requests or applications for such Cards or Accounts obtained by the Client from the prospective Cardholders in accordance with Section 226.12 (a) of Regulation Z of the Federal Truth in Lending Act. The Client shall retain such applications (paper or electronic) for any Account when such application is not provided to the Bank, for a period of twenty-five (25) months after the application has been received and acted upon. The Client agrees to use reasonable security precautions to safeguard Accounts in connection with their storage, use, and dissemination of Accounts. B. Notify each Cardholder that the Accounts are to be used only for business purposes consistent with the Client's established policies. C. Clearly disclose to each of its Cardholders the extent, if any, to which the Bank will provide Transaction and Account information to third parties. D. Make commercially reasonable efforts to (i) maintain a process ensuring timely and accurate reimbursement of all business purchase transactions to its Cardholders, (ii) not exceed the Credit Limit or permit Cardholders to exceed the Account Credit Limits, and (iii) collect and destroy any Cards it no longer requires in connection with this Program. E. Immediately notify the Bank of any Account for which the Client no longer has use. F. immediately notify the Bank by phone of any Account that the Client knows or suspects has been lost, stolen, misappropriated, improperly used or compromised. G. Comply with all requirements of any corporate liability waiver coverage. Any balance outstanding associated with an Account for which a corporate liability waiver is requested shall become immediately due and payable. H. Notify the Bank of any Transaction the Client disputes within sixty (60) days of the last day of the Cycle during which such Transaction is charged to the Client. The Client will use commercially reasonable efforts to assist the Bank in attempting to obtain reimbursement from the Merchant. The Bank will use commercially reasonable efforts to assist the Client in attempting to obtain reimbursement from the Merchant; provided, however, the Client understands that no chargebacks will be granted for Transactions resulting from Account usage where a Cardholder's name is not embossed on a Card or where there is no Card associated with such Account. The Client or Cardholder shall not be relieved of liability for any disputed Transaction if the chargeback is rejected. The Bank shall not be liable for any Transaction where notice of the disputed Transaction is received from the Client more than sixty (60) days after the last day of the Cycle during which such Transaction is charged to the Client. The Client shall not make a claim against the Bank or refuse to pay any amount because the Client or the person using the Card may have a dispute with any Merchant as to the goods or services purchased from such Merchant which has honored the Card for that purchase. 4. Liabilities of the Client. A. Regardless of any established Credit Limits or Account Credit Limits, the Client agrees to pay and perform when due all of its obligations, including without limitation: JPMorgan Chase Bank, N.A. Page 3 of 16 i) With respect to Corporate Liability Accounts, the Client shall be liable for all amounts owing and payable under or in connection with each such Account and this Agreement. The Client shall make payment as specified on Exhibit A for all Transactions posted to a Client Account as reflected on a periodic statement no later than the payment date (the "Payment Date "). If such Payment Date is a Saturday, Sunday, or Bank holiday, the payment shall be due on either the previous or the next business day as specified on the periodic statement. If all or any portion of a payment owed by the Client is not received by the Bank by the Payment Date, then any amounts outstanding shall be subject to the late fees and delinquency fees as specified on Exhibit A until payment in full of all such amounts. B. The Client shall immediately notify the Bank by phone of any Account that the Client knows or suspects has been lost, stolen, misappropriated, improperly used or compromised. The Client will be liable for all Transactions made on an Account prior to notification of such lost, stolen, misappropriated, improperly used or compromised Account. The Client will further be liable for Transactions after such notification has occurred if such Transactions result in a direct or indirect benefit to the Client or any Cardholder. C. The Client's obligations shall be enforceable regardless of the validity or enforceability of a Cardholder's obligations. The Client waives any defenses based upon any i) exercise, delay or waiver of any right, power, or remedy under any Cardholder Agreement, ii) bankruptcy or similar proceedings, or any discharge, affecting a Cardholder, the Client, or others, iii) modification of any Cardholder Agreement, iv) settlement with or release of any Cardholder, and/or v) action, inaction, or circumstance (with or without the Client's notice, knowledge, or consent) that varies the Client's risks or might otherwise legally or equitably constitute discharge of a surety or guarantor. D. Payments under this Agreement shall be made in U.S. dollars drawn on a U.S. bank or a U.S. branch of a foreign bank. E. If the Client elects to add Convenience Check capabilities to any Account, the Client will be liable for the amount of all Convenience Checks used in connection with such Account. F. If the Client allows a Client Vendor to charge Transactions to an Account, the Client is solely responsible for instructing such Client Vendor in the handling and processing of Transactions. Client Vendors are for all purposes agents only of the Client and not of the Bank. No fee shall be payable by the Bank to any Client Vendor for performing any services. The Bank may require the Client to deliver to the Bank authorization information for each Client Vendor including, but not limited to (a) the name and address of each authorized individual of the Client Vendor, and (b) such other information in such format as the Bank may in its sole discretion require. The Client shall immediately notify the Bank upon revoking a Client Vendor's authority. Notwithstanding anything to the contrary in this Agreement, the Client shall be liable for all amounts owing and payable under or in connection with each such Account and this Agreement. 5. Credit. A. The Bank, at its sole discretion, may authorize extensions of credit with respect to (i) each Account up to the Account Credit Limit, and (ii) all Accounts up to the Credit Limit, The Bank is entitled but not obligated to decline authorization of any Transaction that would result in any Credit Limit or Account Credit Limit being exceeded. Notwithstanding the foregoing, if the Client and/or the Cardholder exceed the Credit Limit and/or the JPMorgan Chase Bank, N.A. Page 4 of 16 Account Credit Limit, the Client and/or Cardholder shall pay all amounts exceeding the Credit Limit and/or Account Credit Limit as applicable. B. If not publicly available through the Securities and Exchange Commission, the Client shall provide the Bank with copies of its consolidated audited financial statements, including its annual income statement and balance sheet, prepared in accordance with GAAP, as soon as available and no later than 120 days after the end of each fiscal year. The Client shall provide such other current financial information as the Bank may request from time to time. If applicable, the Client will notify the Bank within five Business Days of any change in the Client's bond rating. The Bank shall be entitled to receive, and to rely upon, financial statements provided by the Client to Bank affiliates, whether for purposes of this Agreement or for other purposes. C. The Bank at any time may cancel or suspend the right of Cardholders to use any Account or Accounts, or decline to establish any Account. The Bank may, at any time, increase or decrease any Account Credit Limit or the Credit Limit, modify the payment terms, or require the provision of collateral or additional collateral. D. The Bank may from time to time require MCC authorization restrictions in connection with the Program. E. Notwithstanding the foregoing, the Bank shall not be obligated to extend credit or provide any Account to the Client or any Cardholder in violation of any limitation or prohibition imposed by applicable law. 6. Programs and System Access. A. The Bank shall provide the Client with password- protected daily access to Account and Transaction data, reports, and account maintenance functions through use of an Access Code. The Bank shall assign an initial Access Code to the Program Administrator. The Program Administrator shall create and disseminate Access Codes to Authorized Users. Such access shall be provided in accordance with such manuals, training materials, and other information as the Bank shall provide from time to time. B. The Client agrees to be bound by and follow the security procedures, terms and conditions that the Bank may communicate from time to time upon notice to the Client. C. The Client shall safeguard all Access Codes and be responsible for all use of Access Codes issued by the Program Administrator. The Client agrees that any access, Transaction, or business conducted using an Access Code may be presumed by the Bank to have been in the Client's name for the Client's benefit. Any unauthorized use of an Access Code (except for unauthorized use by a Bank employee) shall be solely the responsibility of the Client. D. The Bank is authorized to rely upon any oral or written instruction that designates an Authorized User until the authority of any such Authorized User is changed by the Client by oral or written instruction to the Bank, and the Bank has reasonable opportunity to act on such instruction. Each Authorized User, subject to written limitation received and accepted by the Bank, is authorized on behalf of the Client to: open and close Accounts, designate Cardholders, appoint and remove Authorized Users, execute or otherwise agree to any form of agreement relating to the Program, including, without limitation, materials related to security procedures; and give instructions, by means other than a written signature, with respect to any Account opening or closure, designation of Cardholders, or appointment of Authorized Users, and any other matters in connection with the operation of the Program or the System. E. In connection with use of the System, the Client may instruct the Bank to furnish specific Transaction data to third parties that provide reporting products or services to the Client. The Bank will transmit the Transaction data, without representation or warranty to such third parties identified in such instructions. 7. Representations and Warranties. Each party represents and warrants that this Agreement constitutes its legal, valid and binding obligation enforceable in accordance with its terms, and that execution and performance of this Agreement (i) do not breach any agreement of such party with any third party, (ii) do not violate any law, ]PMorgm Chase Bank. N.A. Page 5 of 16 rule, or regulation, or any duty arising in law or equity applicable to it, (iii) are within its organizational powers, and (iv) have been authorized by all necessary organizational action of such party. 8. Fees and Charges. The Client agrees to pay the fees and charges as specified by the Bank, from time to time. The fees initially applicable are specified in Exhibit A attached hereto. The Bank may change the fees and charges payable by the Client at any time provided the Bank notifies the Client at least thirty (30) days prior to the effective date of the change. Should there be a need to perform services other than those specified in Exhibit A, the Client agrees to pay the fees and charges associated with any such service. 9. Incentives. The Bank may pay the Client an annual incentive award. The incentive award schedule initially applicable is specified in Exhibit A. In no event shall the Bank pay the Client an incentive award for the year in which this Agreement is terminated. 10. Term. This Agreement shall have an initial term of three (3) years from the date first written above unless otherwise terminated pursuant to the provisions of this paragraph. Thereafter, this Agreement may be successively renewed for up to two one -year terms upon the anniversary of the effective date at the City's sole discretion. 11. Termination. A. This Agreement may be terminated by the Bank upon the Client's default after Client receives notice of such default and has failed to remedy said default within thirty (30) days of Client's receipt of said notice. The Bank may refuse to allow further Transactions or revoke any of the Accounts at any time and for any reason. B. The Client may terminate this Agreement and/or cancel any of the Accounts at any time and for any reason. The Client shall immediately pay all amounts owing under this Agreement, without set-off or deduction, and destroy all physical Cards furnished to Cardholders. The Bank will assign the Client all its rights concerning such amounts paid. in the event collection is initiated by the Bank, the Client shall be liable for payments of reasonable attorney's fees. Sections 2.13, 3.1), 3.F, 3.G, 3.H, 4, 5.A, 8, 11, 12, 13, 14, 16, 17.A, 17.C, 17.17, 17.G, 17.K, and 17.M shall survive the termination of this Agreement. 12. Default. As used herein, "Default" includes (i) the Client failing to remit any payment to the Bank as required by this Agreement; (ii) either party filing or suffering a petition as debtor in any bankruptcy, receivership, reorganization, liquidation, dissolution, insolvency, or other similar proceedings, or making any assignment for the benefit of creditors; (iii) default by the Client under any material debt owed to any Bank related entity; (iv) any material adverse change in the business, operations or financial condition of the Client. 13. Remedies and Damages. Upon the event of a default either party may terminate this Agreement pursuant to Section 12, or the Bank may, at its sole option, suspend its services or obligations. In the event of termination, Bank reserves the right to declare all obligations of the Client hereunder immediately due and payable. In no event shall termination or expiration release or discharge the Client from its obligation to pay all amounts payable under this Agreement. 14. Limitation of Liability and Indemnification. The Bank will be liable only for direct damages if it fails to exercise ordinary care. The Bank shall be deemed to have exercised ordinary care if its action or failure to act is in conformity with general banking usages or is otherwise a commercially reasonable practice of the banking industry. The Bank shall not be liable for any special, indirect or consequential damages, even if it has been advised of the possibility of these damages. This provision shall survive termination of this Agreement as to matters that occurred during its term. 15. Notices. All notices and other communication required or permitted to be given under this Agreement shall be in writing except as otherwise provided herein and shall be effective on the date actually received when delivered as provided herein. Notices to be provided hereunder shall be sufficient if forwarded to the other party by hand - delivery or via U.S. Postal Service certified mail, postage prepaid, to the address of the other party shown below: JPMorgan Chase Bank. N.A. Page 6 of 16 To the Bank: JPMorgan Chase Bank, N.A. 300 South Riverside Plaza, Suite IL1 -0199 Chicago, Illinois 60670 -0199 Attn: Commercial Card Contracts Manager To the Client: City of Fort Worth Financial Systems Division 1000 Throckmorton Street Fort Worth, Texas 76102 Attn: Procurement Card Administrator 16. Confidentiality. In accordance with the Texas Public Information Act of Texas Government Code Chapter 552 and except as expressly provided in this Agreement, all information firrnished by either party in connection with this Agreement, the Program, or Transactions thereunder shall be kept confidential and used by the other party only in such connection, except to the extent such information (a) is already lawfully known when received, (b) thereafter becomes lawfully obtainable from other sources, (c) is required to be disclosed to, or in any document filed with the Securities and Exchange Commission, banking regulator, or any other governmental agencies, or (d) is required by law to be disclosed and notice of such disclosure is given (when legally permissible) by the disclosing party. Notice under (d), when practicable, shall be given sufficiently in advance of the disclosure to permit the other patty to take legal action to prevent disclosure. Each party shall advise all employees, consultants, agents, and other representatives (collectively, "Representatives ") who will have access to confidential information about these obligations. A party shall disclose confidential information only to its Representatives involved in this Agreement, the Program, or the Transactions. Upon termination of this Agreement, each party shall, at its option, return, destroy or render unusable, and discontinue use of all copies of the other party's Confidential Information upon request of the other party. The parry receiving such request may, because of State law, system requirements or as may be required by its own record keeping requirements, retain any of the other party's Confidential Information, provided, however, its obligation of confidential treatment shall remain in place. If requested in writing, such party shall certify its compliance with the foregoing provisions. The Bank may exchange Client and Cardholder confidential information with affiliates. The Bank may also disclose confidential information to service providers in connection with their supporting the Bank's provision of Program services. Such providers shall be obligated to keep that information confidential under the same terms and conditions as set forth above obligating the Bank. The Bank may exchange credit or other information concerning the Client or Cardholders with credit reporting agencies and merchants (and, in the case of Cardholder information, with the Client), including but not limited to information concerning Transactions, payment history, reimbursements, and employment status and location. The Bank may in its sole discretion make an adverse report to credit reporting agencies if a Cardholder fails to pay or is delinquent in paying an Account. 17. Miscellaneous. A. Except as otherwise provided herein, neither parry shall use the name or logo of the other party without its written consent. If the Client elects to have its Marks embossed on the Cards or provide them to the Bank for other uses, the Client hereby grants the Bank 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. B. If any provision in this Agreement is held by any court of competent jurisdiction to be inoperative, unenforceable, or invalid, such provision shall be inoperative, unenforceable, or invalid without affecting the remaining provisions, and to this end the provisions of this Agreement are declared to be severable. Failure of either party to exercise any of its rights in a particular instance shall not be construed as a waiver of those rights or any other rights for any purpose. C. Nothing in this Agreement shall constitute or create a partnership, joint venture, agency, or other relationship between the Bank and the Client. To the extent either parry 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. JPMorgan Chac Bank, N.A. Page 7 of 16 D. In the regular course of business, the Bank may monitor, record and retain telephone conversations made or initiated to or by the Bank, from or to the Client or Cardholders. E. The terms and provisions of this Agreement shall be binding upon and inure to the benefit of the Client and the Bank and their respective successors and assigns. Neither party hereto shall assign, sublet or transfer its interest herein without the prior written consent of the other party, except that either party may assign, sublet, or transfer its interest herein to any affiliate upon written notice to the other. F. The Bank shall not be held responsible for any act, failure, event, or circumstance addressed herein if such act, failure, event, or circumstance is caused by conditions beyond its reasonable control. G. The Contract Documents embody the entire agreement and understanding between the Client and the Bank and supersedes all prior agreements and understandings between the Client and the Bank relating to the subject matter hereof. In case of a conflict of terms in the Contract Documents, the order of precedence shall be this Agreement, Addendum No. 1, the Bank's proposal, and then the RFP. All representations and warranties of the parties contained in this Agreement shall survive the execution of this Agreement and consummation of the Transactions contemplated hereunder. H. This Agreement may be amended only a by a writing signed by the parties. All remedies contained in this Agreement or by law afforded shall be cumulative and all shall be available to the parties hereto. I. To the extent that the Client would have or be able to claim sovereign immunity in any action, claim suit or proceeding brought by the Bank, the Client waives its sovereign immunity to suit for the purpose of adjudicating a claim for breach of this Agreement only, subject to the terms and conditions of Subchapter I — Adjudication of Claims Arising Under Written Contracts with Local Governmental Entities, Chapter 271, Texas Local Government Code. J. Section headings in this Agreement are for convenience of reference only, and shall not govern the interpretation of any of the provisions of the Agreement. The words "hereof', "herein" and "hereunder" and words of similar import when used in this Agreement shall refer to this Agreement, as a whole and not to any particular provision of this Agreement. K. International Transactions and Fees. If an International Transaction is made in a currency other than U.S. dollars, the Association will convert the Transaction into U.S. dollars using its respective currency conversion procedures. The exchange rate each Association uses to convert currency is a rate that it selects either from the range of rates available in the wholesale currency markets for the applicable processing date (which rate may vary from the rate the respective entity itself receives), or the government - mandated rate in effect on the applicable processing date. The rate in effect on the applicable processing date may differ from the rate on the date when the International Transaction occurred or when the Account was used. The Bank reserves the right to charge an International Transaction Fee, as specified in Exhibit A. The International Transaction Fee will be calculated on the U.S. dollar amount provided to the Bank by the Association. The same process and charges may apply if any International Transaction is reversed. L. This Agreement may be signed in one or more counterparts, each of which shall be an original, with the same effect as if the signatures were upon the same Agreement. This Agreement shall become effective as of the date first appearing above when each of the parties hereto shall have signed a counterpart hereof. M. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AND NOT THE LAW OF CONFLICTS) OF THE STATE OF TEXAS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS. THE PARTIES HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY. JPMorgan Chase Bank, N.A. Page 8 of 16 BANK JPMORGAN� BANK, By �1/iA�cT, Name CLARE T. TRAUTH VICE PRESIDENT Title CLIENT CJTY OF FORT WORTH r _ .� ' ,Karen L. Montgomery Assistant City Manager /CF0 Recommended By: ena H. llis Finance ' ect to Form T4 -L : ATTEST: Marty Hendrix City Secretary rr-��rr�� y Authorization: c3 ga Date: ► '�"l�� t , LLJ f JPMorgan Chase Bank, N.A. Page 9 of 16 EXHIBIT A CITY OF FORT WORTH INCENTIVES & FEES DEFINITIONS "Association" means either MasterCard or Visa. "Average Large Ticket Transaction Size" means Large Ticket Transaction Volume divided by the total number of transactions included in the calculation of Large Ticket Transaction Volume. "Aveme_Transaction Size" means Charge Volume divided by the total number of transactions included in the calculation of Charge Volume for any given period. "Purchasing Card Charge Volume" means total U.S. dollar charges made on a Purchasing Card, net of returns, and excluding Large Ticket Transactions, cash advances, convenience check amounts, fraudulent charges and any transactions that do not qualify for interchange under applicable Association rules. "Credit Losses" means all amounts due to Bank in connection with any Account that Bank has written off as uncollectible, excluding Fraud Losses. "ExacTrac Charge Volume" means total U.S. dollar charges made on a virtual single use account used in connection with the ExacTrac System, net of returns, and excluding Large Ticket Transactions, cash advances, convenience check amounts, fraudulent charges and any transactions that do not qualify for interchange under applicable Association rules. "Fraud Losses" means all amounts due to Bank in connection with any Account that Bank has written off as uncollectible as a result of a card being lost, stolen, misappropriated, improperly used or compromised. "Gross Charge Volume" means Purchasing Card Charge Volume plus ExacTrac Charge Volume, net of returns, and excluding Large Ticket Transactions, cash advances, convenience check amounts, fraudulent charges and any transactions that do not qualify for interchange under applicable Association rules. "Large Ticket Transaction' means a transaction that the Associations have determined is eligible for a Large Ticket Rate. "Large Ticket Transaction Volume" means total U.S. dollar Large Ticket Transactions made on a Bank Commercial Card, net of returns and excluding cash advances, convenience check amounts, fraudulent charges and any transactions that do not qualify for interchange under applicable Association rules. "Losses" means all Credit Losses and Fraud Losses. "Settlement Terms' means the combination of the number of calendar days in a billing cycle and the number of calendar days following the end of a billing cycle to the date the payment is due. Settlement Terms are expressed as X & Y, where X is the number of calendar days in the billing cycle and Y is the number of calendar days following the end of a billing cycle to the date the payment is due. "Speed of Payment' means the number of calendar days after a billing cycle until the date full payment of the cycle end balance is posted by the Bank. JPMorgan Chase Bank, N.A. Page 10 of 16 REBATES Volume Rebate Bank will pay the Client a rebate based on the annual Gross Charge Volume achieved according to the following schedule. The Purchasing Card rebate will be calculated as the Rebate Rate times the annual Purchasing Card Charge Volume. Qualified Charge Volume Rebate Rate $10,000,000 1.22% $12,500,000 1.30% $15,000,000 1.35% $20,000,000 1.41% $25,000,000 1.460/a $30,000,000 1.48% $35,000,000 1.50% S40,000,000 1.53% $45,000,000 1.55% $50,000,000 1.56% ExacTrac Volume Rebate Adiustment The ExacTrac rebate will be calculated as the Rebate Rate as determined above minus 0.15% times the annual ExacTrac Charge Volume. Speed of Payment Escalator The Bank will pay Client an additional rebate based on its average Speed of Payment throughout the year. If, on average, payment for the prior period full balance is received in fewer days from cycle end than required under the terms of this Agreement, a speed -to -pay escalator of 0.01% per full day of early payment will be earned. Large Ticket Rebate Bank will pay the Client an annual rebate based on annual Average Large Ticket Transaction Size and annual Large Ticket Transaction Volume according to the following schedule. The rebate will be calculated as the Rebate Rate times the annual Large Ticket Transaction Volume. Average Large Ticket Transaction Size Rebate Rate $7,500 0.60% $10,000 0.55% $15,000 0.50% $20,000 0.45% $25,000 0.40% >S25,000 0.35% Rebate Computation The following is for illustrative purposes only and, therefore, the numbers provided in the example below do not constitute a commitment by the Bank. This is an example of a rebate computed at 7 days based on the following criteria: JPMorgan Chasc Bank, NA Page I 1 of 16 $13,000,000 regular transactions and $2,000,000 for large ticket transactions: 7 Day e ti Regular Transactions Large Ticket Transactions Total Rebate General Rebate Terms e e 1?011 ars 1.30% $169,000 0.40% $8,000 $177,000 Rebates will be calculated annually in arrears. Rebate amounts are subject to reduction by all Losses, subject to Section 4B of the Agreement. If Losses exceed the rebate earned for any calendar year, Bank will invoice the Client for the amount in excess of the rebate, which amount shall be payable within 14 days. Upon termination of the Program, the Losses for the six -month period immediately preceding the termination will be deemed to be equal to the Losses for the prior six-month period. Rebate payments will be made in the first quarter for the previous calendar year via Automated Clearing House (" ACH") credit to an account designated by the Client. To qualify for any rebate payment, all of the following conditions apply. a. Settlement of any centrally billed account(s) must be by automatic debit or by Client initiated ACH or wire. b. Payments must be received by Bank in accordance with the Settlement Terms. Delinquent payments shall be subject to a Past Due Fees as specified below. Settlement Terms are 7 & 7. c. The Client is not in Default under the Agreement. d. Account(s) must be current at the time of rebate calculation and payment. JPMorgan Chase Bank, N.A. Page 12 of 16 FEES (Purchasing Card) Technology Fees PaymentNet and/or SDOL: Custom Reporting/Mapper Programming/Post-loader: $250 per hour (4 hour minimum) PathwayNet Set up: First 6 sites: No Charge Additional sites: $150 per site Training At JPMorganChase site: No Charge; client T &E not included Via Telephone: No Charge At Client site: Initial Training: Four Days Training of up to 90 users at no charge to the Client Additional Training. $950 per day, includes all related travel expenses Paper Statements: No Charge Electronic Payment Fee: No Charge Past Due Fees Late fee: Prime + 2% applied to average daily which is calculated as follows: (Past due balance + any new spend) / Number of days in cycle. Will be charged on the cycle date. Delinquency fee: No Charge Account Fees Annual Card Fees: No Charge Special Purpose Cards (b2B): No Charge Basic Plastic: No Charge Logo Plastics: No Charge Custom Plastics: At cost; based on complexity of design subject to a 1,000 card minimum Document retrieval fee: $8 per document (undisputed charges) Statement Duplication: $5 - $8 per statement; $0 through PaymentNet ACH return item: No Charge Return Check Fee: $15 per return Rush Card: No Charge Standard Card Replacement: No Charge JPMorgan Chase Bank, N.A. Page 13 of 16 Card Reinstatement: No Charge International Transaction Fee: 1% surcharge (association pass through) Dormant Credit Balance Fee: No Charge Over Limit Fee: No Charge Optional Services Cash Advance: 2.0% ($3.00 minimum) Convenience Checks: $1 per posted check + 0.5% of check value Rejected Convenience Check: No Charge Convenience Check Stop Payment: No Charge Other Should the Client request services not in this schedule, the Client agrees to pay the fee associated with such service. JPMorgan Chace Bank, N.A. Page 14 of 16 FEES (EaacTrac Program) Technolou Fees PaymentNet and/or SDOL: Custom Reporting/Mapper Programming/Post- loader: $250 per hour (4 hour minimum) EDI Set up/Transmission: Pass - through on all set up and development costs Training At JPMorganChase site: No Charge; client T &E not included At Client site: Initial Training: No Charge Additional Training: $950 per day, includes all related travel expenses Paper Statements: No Charge Electronic Payment Fee: No Charge Past Due Fees Late fee: Central Bill: 1% of unpaid balance at cycle + 15 days; charged on cycle date Delinquency fee: 2.5% of the full amount past due at cycle + 15 days and each cycle thereafter, charged on cycle date Account Fees Document retrieval fee: first 3 copy requests are free, then $5 per copy request (undisputed charges) Statement Duplication: $5 per statement; $0 through PaymentNet ACH return item: $20 per return Return Check Fee: $15 per return International Transaction Fee: I% surcharge (association pass through) Dormant Credit Balance Fee: No Charge Over Limit Fee: No Charge Miscellaneous Fees: Pass - through charges for other specialized services (case -by -case fees) Optional Services FTP: Daily: $500 /month Weekly: $250 /month Bi- weekly: $125 1month Monthly: $75 /month Cash Advance: 2.5% ($2.50 minimum and $30 maximum) JPMorgan Chase Bank, N.A. Page 15 of 16 Convenience Checks: 1.501a - 3% of check amount ($1.50 /check minimum, $50 check maximum); $ I per check fee for keying of payee name Rejected Convenience Check: $29 per check Convenience Check Stop Payment: No Charge Other Should the Client request services not in this schedule, the Client agrees to pay the fee associated with such service. JPMorgaa Chase Bank, N.A. Page 16 of 16 Exhibit I FIRST AMENDMENT TO CITY SECRETARY CONTRACT NO._ COMMERCIAL CARD AGREEMENT I JPMORGAN CHASE BANK, N.A. THIS FIRST AMENDMENT (the *Amendment") to Commercial Card Agreement (the "Agreement') dated as of August 31, 2007 between JPMorgan Chase Bank, N.A. (the "Bank"), and City of F_o�t Worth, a Home -Rule Municipal Corporation, situated In Tarrant, Denton, Parker, and Wise Counties, Texas (the 'Client') is made as of �1 8 ._Y�1,�_ ._(the 'Effective Date-). The Bank and the Client agree to amend the Agreement as follows: I. Definitions. Capitalized terms used In this Amendment and defined In the Agreement shall be used herein as so defined, except as otherwise provided herein. 2. Amendment Paragraph 4.8. of the Agreement is hereby deleted in Its entirety and restated to read as follow$: 'Fraud Losses will not be deducted from rebates, provided that the Client shall Immediately notify the Bank by phone of any Account that the Client knows or suspects has been lost, stolen, misappropriated, improperly used. or compromised. The Client shall not be liable for fraudulent transaction(s) made on an Account by persons other than employees or agents of the Client and the Cllenrs vendors, provided that (1) the Client or Cardholder has immediately notified the Bank as specified In the previous sentence; (IQ neither the Client nor the Cardholder has received any direct or Indirect benefit from such fraudulent Transacdon(s); (iii) the program has been set up and operated by the Client in accordance with the Bank's fraud reduction best practices as designated by the Bank from time to tune (including but not limited to blocking hlgh•nsk MCCs; payment to the Bank by the Client rather than Cardholders for approved expenses; limiting cash advances; adhering to transaction, daily, and cycle limits established by the Bank); (Iv) the Client maintains reasonable security precautions and controls regarding the dissemination, use and storage of Cards and transaction data; and (v) the Client notifies the Bank no later than ten (10) business days after the date a paper or electronic statement in which the fraudulent Transactlon(s) first appeared was first made aveliable to the Client. In the event the Client does not adopt the fraud reduction best practices Including but not limited to those designated in this sectlon, as designated by the Bank from time to time, within 10 business days of being so notified in writing by the Bank, the Client will be liable for any fraudulent Transactions on any Account prior to the time the Client notifies the Bank.' 3. Amendment. Exhibit A is hereby deleted In its entirety and replaced in full with a new'Exhibit A as attached hereto. 4. Amendment The Agreement is hereby modified to Incorporate a new 'Exhibit B entitled 'Single Use Accounts Addendum' as attached hereto. 5. Amendment Section 1 t of the Agreement, Termination, Is hereby amended to add Section 11. C, which shall read as folkms: 'In the event no funds or insufficient funds are appropriated by the Client in any fiscal period for any payments due hereunder, Client will notify Bank of such occurrence and this Agreement shall terminate on the last day of the fiscal period for which appropriations were received without penally or expense to the Client of any kind whatsoever. except as to the portions of the payments herein agreed upon for which funds have been appropriated., 6. Continued Effect Except to the extent amended hereby, all terms, Previsions and conditions of the Agreement, as it may have been amended from time to time, shall continue in full force and effect and the Agreement shall remain enforceable and binding In accordance with its terms. Piggyback Provision. Pursuant to the Texas Intedocal Cooperation Act, Chapter 791, Texas Government Code (the 'Act'), the use of this Agreement may be extended to other local governments and with agencies of the state a6 described in the ACI. AddHiona[ly, the Agreement may be extended to Nat - For - Proffitt organizations and Private universities at CflWs discretion. Notwithstanding the foregoing, the Bank, in its sole discretion, shall have the option to approve the participation of any Participant (as later defined herein) under this Agreement Each Participant allowed by the Bank to obtain services under this Agreement shall do so independent of any other Participant. Each Participant shall be responsible for its own obligations by virtue of this AgreemenL The Bank shall not be gable to the Client for payments hereunder or otherwise, due to any failure to Issue any Card or establish any Account for a Participant. Client shall not be gable for any transactions, payment of fees, or any other obligations of any Participant under this Agreement. �. Counterparts. This Amendment may be executed in any number of counterparts, an of which when taken together sha[, constitute one and the same document, and each party hereto may execute this Amendment by signing any of such counterparts. -.. . -l. Papa I of 13 IN WITNESS WHEREOF, the Bank and the Client have caused this Amendment to be executed by their respective authorized officers as of the effective date written above. JPMORGAN CHASE BANK, N.A. By: &�-- v �— Name: -,-..o T. °! t�1UTH VICE PRESIDENT Title: Client Attestation: CITY OF FORT WORTH, TEXAS By ,�'!i� Name: Karen L. Montgomery Tice: Assistant City Manager FN o 7m&, The undersigned, a duty authorized officer or representative of the Client, does hereby certify that the Client has been duty authorized to enter Into and Perform this Amendment and that the person signing above on behalf of the Client, whose execution of this Amendment was witnessed by the undersigned, is an officer, partner, member or other representative of the Client possessing authority to execute this Amendment. By: Name: Title 'Note: The person signing the attestation shaft be someone different from the person signing above on behalf of the Client. APPROVED AS TO FORM AND LEGALITY By Name: Maleshia Farmer Title: Assistant City Attorney y: Hendrix, City S o0sotary Pogo 2 01 13 EXHIBIT A INCENTIVES AND FEES DEFINITIONS *Awaclatl means either MasterCard or Visa. 'Average FikMrn' means the number of days between the transaction posting date and the posting date of payment In full, averaged over the rebate calculation period. 'Avg a Lame Ticket Transaction 5+• means Large Ticket Transaction Volume divided by the total number of transactions Included In the calculation of Large Ticket Transaction Volume. " Average Payment Term s. means the Average Return minus half the number of calendar days in the bilang cycle, as specked in the Settlement Terms. ' Charge Volume' means total U.S. dollar charges made on a Bank Commercial Card, not of returns, and excluding large Ticket Transactions, cash advances, convenience check amounts, fraudulent charges and any transactions that do not qualify for Interchange under applicable Association rules. 'Combined Chame Volume' means Charge Volume and Single Use Charge Volume. "Contract Year" means a 12 -month period beginning on August 31" of each year or any anniversary of such date. 'Credit losses' means all amounts due to Bank in connection with any Account that Bank has written off as uncollectibie, excluding Fraud Losses. 'Fraud Los see' means all amounts due to Bank In connection with any Account that Bank has written off as uncollectibte as a result of a card being lost, stolen, misappropriated, Improperly used or compromised. Urge Ticket Transaction' means a transaction that the Associatl ns have determined Is eligible for a Large Ticket Rate. 'Large Ticket Transaction Volume' means total U.S. dollar Large Ticket Transactions made on a Bank Commercial Card, net of returns and excluding cash advances, convenience check amounts, fraudulent charges and any transactions that do not quallfy for Interchange under applicable Association rules. 'Losses' means all Credit Losses and Fraud Losses. Texas Payment Card Consortium* means the City of Fort Worth, Texas and other Texas public entities eligible to participate in the Program under the Act and that have been approved by the Bank for participation. 'Parficl • means the Client or a Texas public entity approved by the Bank to participate under the Commercial Card Purchasing and Single Use Account programs provided to Client under this Agreement and which have executed an agreement in the form as attached hereto as 'Exhibit C' (the 'Participation Agreement) or in such other form as provided by the Bank from time to time. 'Settlement Terms' means the combination of the number of calendar days in a billing cycle and the number of calendar days following the end of a billing cycle to the date the payment is due. Settlement Terms are expressed as X & Y, where X Is the number of calendar days in the billing cycle and Y Is the number of calendar days following the end of a billing cycle to the date the payment is due. I rctle Use Charge Volume' means total U.S. dollar charges made on a Virtual Single Use Account used In connection with the Single Use System, net of returns, and excluding Large Ticket Transactions, cash advances, fraudulent charges and any transactions that do not qualify for interchange under applicable Association rules. 'Virtual Stnale Use Account' means a Card -less Account used In connection with a single, unique transaction. Page 3 of 13 REBATES' Volume Rebate — Purchastna and Single Use Account Mahmbl "Qn j Bank will pay the Participant a rebate based on the annual Texas Payment Card Consortium's Combined Charge Volume achieved aocording to the following schedule. The rebate will be calculated as the Rebate Rate times the annual Participant's respective Combined Charge Volume_ NOTE: In year i of this Agreement (813112010 — 813012011), Bank will assume Charge Volume of $200,000,000 and pay at the .9504 and 1.59% rebate levels based on the Partldparlt's current annual volume. For Bach year thereafter, the consortium rebate will be pail per the grid below. 'Combined Consortium Charge Volume TEXAS PAYMENT CARD CONSORTIUM (Individual Particlpant Volume Grid) Purchasin Card Program 3500K - $I MM $1MMI or greater Under 325,000 000 0.75% 1.25% $25,000,000 0.80% 1.50°/0 $75.000,000 0.85% 1.55% $150'000'000 0.90% 1.57% $200,000,000 0.95% 1.59% $300,000.000 1.00% 1.80% $500. '000 1.02% 1.81% *Combined Charge Volume for each Participant will begin to accrue on the first day of the month following the date the Participation Agreement is executed. Single Use Account (E- Pavables gotudon) Rebate Bank will pay the Participant a rebate based on the annual Single Use Charge Volume achieved ea indicated below. The rebate will be calculated as the Indicated Rebate Rate times the annual Single Use Charge Volume. - If Part IP2nI achieves $1,000,000 - $10.000,000 in Single Use Charge Volume, the rebate rate is 1.24% If Participant achieves Single Use Charge Volume greater than 310,000.000, the rebate rate Is in accordance with the rebate grid above. NOTE: Participants with Single Use Account Charge Volume less than $1.000,000 will not be implemented. Average Payment Terms Escalator The Bank will pay Client an additional rebate based on its Average Payment Terms throughout the year. If, on average, payment for the prior period full balance is received In fewer days from cycle end than required under the terms of this Agreement, an Average Payment Terms escalator of 0.01% per full day of early payment will be earned. Partictnant Reoortlna system oatlon For Participants with program spend of under $10 million annually, the smarfdafa reporting solution will be implemented. Participants with annual spend of $10 million or above can select the Bank's PaymentNet reporting platform or smaridafa PYpa 4 CO 13 �..�: l'l t . 1 •.,yam 1. LI 1 - l t _= t t: !; ' :1 .L' •.i L•1' 1' Il: Bank will pay the Participant an annual rebate based on annual Average Large Ticket Transaction Size and annual Large Ticket Transaction Volume according to the following schedule, when the respective Participant's annual Combined Charge Volume threshold requirements are achieved. The rebate will be calculated as the Rebate Rate times the annual Large Ticket Transaction Volume. PURCHASING AND SINGLE USE ACCOUNT (E- PAYABLES SOLUTION) PROGRAMS AVERAGE LARGE TICKET TRANSACTION 312E REBATE RATE ( %) $4500 - $4999 .85% $5000 - $7499 eo% $7500 - WWII .55% $10.000 - $14,999 .50% $15,000 - $18,999 .45% $20,000 - $24,999 .35% $25,000 - $98,989 .30% $100,000+ 0.15 'in the event of a reduction In Interchange rates by the Associations, the Bank reserves the right to ratably adjust the rebate rates aocordingly. Rebates will be calculated annually In arrears. Rebate amounts are subject to reduction by all Losses. If Losses exceed the rebate earned for any Contract Year, Bank will Invoice the respective Participant for the amount In excess of the rebate, which amount shall be payable within thirty (30) days of receipt of the Invoice. Upon termhWon of the Program, the Losses for the six -month period immediately preceding the termination will be deemed to be equal to the Losses for the subsequent six -month period. If the Participant is participating in more than one program. Bank reserves the right to offset any Losses from one program against any rebate earned under arty other program. Rebate payments wHl be made within 9D days after the end of the previous Contract Year via wire transfer to an account designated by the Participant. To qualify for any rebate Payment, an of the following conditions apply. a. Settlement of any centrally billed account(s) must be by automatic debit or by the Participant Initiated ACH or wire. b. Payments must be received by Bank In accordance with the Settlement Terms. Delinquent payments shag be subject to a Past Due Fees as specified below. Settlement Terms are 30 & 14 for both the purchasing and single use account programs. c. The Participant must maintain a satisfactory Bank credit risk rating (Investment grade equivalent). d. The Participant Is not In Default under the Agreement. Pape 6 of 13 Fees Schedule - for Programs using the Smartdeta System The following are the fees associated with our purchasing card and single use account program in the United States: Annual card fee $0.00 _- Cash advance fee y 2.0% (53.00 minlmum) Convenience check fee 2% of check amount ($1.501chack minimum) Re*ted convenlenk a check y $0.00 �— — Convenience check stop payment $0.00 Standard card replacement $0.00 per card Card reinstatement $0.00 Emergency (rush) card replacement $25 per card N effected through the Bank. If effected through the association. Client shaft pay any fees charged by the assokaabon. Return check (payment) $15 per return ACH return $0.00 Document retrieval Dispute- related: $0.00 Non- dispule- related: $8 per document Duplicate statement $8 per statement �— Currency conversion fee 1% surcharge (association pass through) r Dormant credit balance fee $0.00 Over -tlmlt fee $040 Miscellaneous fees None Finance charge - Prime + 2% is applied to the average daily. which 15 calculated as Wows: (past due balance + any new spend) / number of days In cycle. Will be charged on the cycle date. Basic plastic $0.00 o plastic _ Customer _Y $500 per logo for any newly designed logo; No foe to apply a current logo on a new plastic. t Customized plastic At cost ( pass - through). based on complexity of design, subject to a y 00 � card minimum �Training at Bank's site _ ___.._. $0.00 (customer T &E not included) - _- tLj!rting at your stte(s) $1.550/day Paper statements `- ElectroNc payment fee $0.00 $0.00 Custom repordng/mapper programming/post- loader S00t, custom mapper: priced by MasterCard; pass - through charge Pape 6 or 13 Should the Participant request services not In this schedule, the Participant agrees to pay the fees associated with such services. Ps" 7 of 13 File transfer using FTP Daft'— $500.00fmonth Weeky— $260.00tmonth 81- weekly - $125,Mmonth Monthly- 475,001monlh PaymentNet setup fee Waived Smartdate setup fee 50,00 SDOL monthly maintenance fee $50 per program per month - WANED aftr a Participant reaches $500,000 annual spend during a Contract Year SDOL real time Should the Participant request services not In this schedule, the Participant agrees to pay the fees associated with such services. Ps" 7 of 13 Fees Schedule - for Programs Using Bank's PaymentNet Solution The following are the fees associated with our purchasing card and single use acocunt programs in the United States: PROGRAM FEES Annual cad fee - $0.00 Cash advance fee 2.5% ($2.50 minimum) _ Convenience check fee 2% of check amount ($1.50check minimum) L Rejected convenience check $0.00 per occurrence Convenience check stop payment $0.00 Standard cad replacement $0.00 per cad Cad reinstatement $0.00 Emergency (rush) card replacement $25 per cad if effected through the Bank. If effected through the association. Client shall pay any tees charged by the association. Return Check (payment) $15 per return ACH return $20 per return Document retrieval Dispute- related: $0.00 Non- dispute- related: 3 copy requests free. then $5 per copy request Duplicate statement Currency conversion fee $5 per statement 1% surcharge (association pass - through) Dormant credit balance fee _ $0.00 Over-limit fee $Q_00 Miscellaneous fees Pass - through charges for other specialized services (case -by -case fee) PAST -DUE FEES Late fee Centra1 fill: 1% of unpaid balance at cycle; charged on cycle date Finance charge None Delhrquency fee 2.5% of the full amount past due (30- & 60-day+) at cycle and each cycle thereafter, charged on cycle date. CARD DESIGN Lf3asic plastic � _ —, _ _._.._.. $0.00 Customer logo logo plastic $500 per logo for any �Y designed logo. No fee for existing logos on new plastics. Customized plastic _ $1 per card. subject to a 1.000 cad minimum for any new cads I TRAINING AND CONSULTING Training at Banks site $0.00 (customer T &E not included) Training at your site(s) $0.00 for first session; additional sessions ® $1.5501day TECHNOLOGY SERVICES I PsymentNet setup fee Waived ED[ setupttransmission Pass- through on ail setup and development costs _ pop a of 13 Paper statements 30,00 Electronic payment fee $0.00 Custom reportEng�aPi�programmtn g/post- loader (.._ 5250 per hour 51,000 minimum) OPTIONAL PROGRAM/TECHNOLOGY SERVICES File transfer using FTP^ Dai"SOMMth Week"250 /month 81- weekly— $125/month Month"751month Should the Participant request services not In this schedule, the Participant agrees to Pay the fees associated with such services. 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The Bank shall have no responsibility for the terms. condiffons or performance of purchase, sale, or payment transactions between the Network and promptly notitying the Bank of ny .P. nsihle for regularly Inspecting the Single Use Transaction history available via the a• The Participant Is solely responsible for establishing, maintaining and entorcl is internal Industry standards, to safeguard against the entry of appro rcing i P policies and procedures in conformity with agrees to maintain the coniidenttaltty of the Network Security Procedures and of Payment Instructions Into the Network. PafWpart devices afxl related Instructions for use of the Network. If the Participant any Passwords, codes, digital ce"llicates, security have been accessed try unauthorized persona, the Participant shall Pant believes th suspects that mry such Information w Instructions the security breach on its involve w payment processing procedures and the co tl el o be taken to restore w verify security the Bank as to the effW of over payment proc+assing. 10. All Payment Instructions submitted In the name of the Participant are subject to authenticatlon pursuant to the Network Security Procedures. The Bank shall process Participant's Payment Instructions when the Payment instructions are vartfted by Bank pursuant to the Network Security Procedures. The Bank shall be entitled to rely and act upon all Information receMed from the Participant or any Suppller In connection with a Payment Instruction The Participant agrees to o bound rm any Payment fnstrtrce P whether or not authorized, Issued In the Participant's name and authenticated by the Bank In accordance with the Network Security Procedures. BANK ig BY., L -�� ('j Name: •va; •.� T. TRAUTH Title: Participant Attestation: PARTICIPANT Name: Kare 1� Wv Title: Assistant City Manage NO M &C REQUIRED The undersigned. a duly authorzed otBcer or repfesentative of the Participant, does he authorized to enter Into and perform this Addendum and that the person signing above on betels f Of the Partld a Participant has been duly Addendum was witnessed by the undersigned, Is an officer, partner, member w other re P8t. whose execution of this execute this Addendum. presentative of the Parttipant possessing authority to By: Name: Title ' Note: The person signing the attestation shad be someone dItTerent from the person signing above on behalf of the Participant. APPROVED AS TO F AND LEGALITY By` � Name: Maleshia Farmer Title: Assistant City Attorney Ane30 Pi�q Hendrix, City S 4a4,an� Sao. n Fo -Po °0V�� OO° °o°°° Pope I1 d 13 EXHIBIT C PARTICIPATION AGREEMENT I JPMORGAN CHASE BANK.NA. THIS PARTICIPATION AGREEMENT (the 'Participation Agreement') is made and effective this day of ('Effective Date'), by and between a (the 'Partktpant') and JPMargan Chase Bank, N.A or Chase Bank USA, N.A. as may be determined from time to time, (the 'Bank] each a national banking association. WITNESSETH: WHEREAS, pursuant to that certain Commercial Card Agreement dated as of [MONTH, DATE, YEAR] (the *Commercial Card Agreement) between [INSERT CLIENT LEGAL ENTITY NAME] (the ' Clent) and the Bank, the Bank has agreed to provide commercial card services to the Client (the'Program7 on the terns and conditions of the Commercial Card Agreement, attached hereto and incorporated herein as Exhibit I: and WHEREAS, the Participant destres to participate in the Program, subject to the terms and conditions of the Commercial Card Agreement: NOW, THEREFORE, In consideration of the foregoing premises and the mutual agreements, provisions and covenants contained herein. the parties agree as follows: Definitions. Except as otherwise provided herein, all capitalized terms used herein and not otherwise defined and which are defined In the Commercial Card Agreement shall be used herein as so defined In the Commercial Card Agreement. 2. Mutual Obligations. By their execution of this Participation Agreement, the Particlpaat and Bank hereby agree to be bound by all the terms and conditions of the Commercial Card Agreement attached hereto as Exhibit I. This Participation Agreement shaft remain In effect according to its terms witmt regard to the continued existence or enforceability of the Commercial Card Agreement with respect to the original parties thereto. All references to 'Cftnr in the Commercial Card Agreement shall be deemed to constitute references to the Partictpant hereunder. Without limiting the generality of the foregoing, the Participant further agrees that it shall be responsible only for transactions and for fees, charges and other amounts due under the Commercial Card Agreement related to the use of Accounts of the Participant pursuant to the Commercial Card Agreement and that the Client shall not be liable for any such transactions and for any such fees, charges and other amounts. 3. Incentives. For purposes of calculating rebates, Combined Charge Volume for each PanICIOnt will begin to accrue on the first day of the month following the date the Parllcipallon Agreement is executed. 4. Notices. Notwithstanding the provisions of the Commercial Card Agreement. all notices and other communications required or permitted to be given under this Paftipation Agreement shall be in writing and shall be effective on the date on which such notice Is actuauy received by the party to which addressed. All notices shall be sent to the address set forth below or such other address as specified In a written form from one party to the other. To the Bank: JPMorgan Chase Bank, N.A. 300 South Riverside Plain, Suite IL"199 Chicago, IL 80870-0199 Attn: Commercial Card Contracts Manager To the Participant: Alin: Miscellaneous. This Participation Agreement shall be governed by and construed In accordance with the substantive laws of the State of Texas. and as applicable, federal law. The headings, captions, and arrangements used in this Participation Agreement are for convenience only and shall not affect the Interpretation orthis Participation Agreement. This Participation Agreement may be executed in any number of counterparts, all of which, when taken together shall constitute one and the some document, and each party hereto may execute this Participation Agreement by signing any of such counterparts. Paps 12 of 13 IN WITNESS WHEREOF, the parties have caused this Participation Agreement to be duty executed as of the dale first written above. BANK: By: Names Title PARTICIPANT: By: Name: Title: Participant Attestadon: The undersigned, a duly authorized officer or representative of Participant, does hereby certify that Participant has been duly authorized to enter into and perform this Participation Agreement and that the person signing above on behalf of the Participant, whose execution of this Participation Agreement was witnessed by the undersigned, Is an officer, partner, member or other representative of Participant possessing authority to execute this Participation Agreement. By: Name: Title Pape 13 of 13