CORPORATE PURCHASING CARD AGREEMENT
BANK OF AMERICA CORPORATE PURCHASING CARD AGREEMENT
This Bank of America Corporate Purchasing Card Agreement (the "Agreement") is made by and between Bank of America, N.A. (USA),
("Bank of America"), a national banking association, and the City of Clearwater ("Company") and shall be effective as of the Effective Date set forth
below.
Recitals
A. Bank of America is a member ofMasterCard@ International Incorporated ("MasterCard") and Visa@ U.S.A. Inc. ("Visa") with full power
and authority to issue cards for business and commercial use;
B. Bank of America issues and services corporate purchasing cards for business and commercial use; and
C. Company desires to obtain and use, and Bank of America desires to issue to Company, one or more corporate purchasing card accounts
which will be subject to the terms and conditions in this Agreement.
NOW, THEREFORE, for valuable consideration, the parties agree as follows.
1. DEFINITIONS.
A. "Account" means each MasterCard or Visa Corporate Purchasing Card account, including a Cardless Account, which Bank of America (i) issues
pursuant to this Agreement or (ii) issued (and still outstanding as of the Effective Date of this Agreement) pursuant to a previous agreement no longer in
effect. Each reference in this Agreement to "the Account" will mean Company's Account, a Participant's Account, a Cardholder's Account, or any
combination of them, as applicable.
B. "Billing Statement" means the official invoice provided to Company, Participant and/or Cardholder which identifies each Transaction posted during
the billing cycle, the date of each Transaction and the applicable fees and charges. Unless otherwise determined by Bank of America, the official invoice
is in paper, not electronic, medium.
C. "Business Use" means use for business-related purposes.
D. "Card" means each plastic charge card which Bank of America issues or has issued for the Account which is not a Cardless Account.
E. "Card Administrator" means an individual or individuals authorized by Company or a Participant, as applicable, to request Bank of America to add
or delete Cards or Convenience Checks and to communicate with Bank of America and take other action needed to maintain the Account.
F. "Cardholder" means an employee or agent of Company or of a Participant who Company or a Participant designates in writing and who Bank of
America approves to receive an Account or a Device, including a Cardless Account. If a Cardholder or a Card Administrator makes a Device available
for use by another party, that person will be considered a Cardholder.
G. "Cardless Account," also called a "Control Account," means an Account for which Bank of America assigns only an Account number, but provides
no Card or Convenience Checks.
H. "Cash Advance" means use of the Account to obtain cash from a participating financial institution or merchant or from an ATM, to write
Convenience Checks, or to obtain items readily convertible into cash including, without limitation, money orders, travelers checks, foreign currency,
lottery tickets, casino chips and racetrack wagers.
I. "Convenience Check" means each check which Bank of America at its discretion provides to Company or a Participant to use the Account.
J. "Device" means a device such as a Card, Account number or, where applicable, a Convenience Check which Bank of America provides under this
Agreement to use to make Transactions or other charges on the Account.
K "Guarantor" means a person or entity, other than Company or a Participant, that agrees to assume responsibility for the obligations of this
Agreement, including payment of any amounts owed.
L. "Participant" means a subsidiary, affiliate or division of Company which Company designates in writing on a Participant Account Form and which
Bank of America approves, for Bank of America to issue an Account with its own Account number. A Participant Account Form, upon completion by
Company and approval by Bank of America, will be made a part of this Agreement.
M. "Payment Due Date" means the payment due date shown on the Account Billing Statement which date shall be the last day ofthe Settlement Period.
N. "Settlement Period" means the number of days after the statement closing date within which payment is due, as designated in Schedule A hereto.
O. "Transaction" means a purchase or reservation of goods or services or a Cash Advance made or facilitated by use of a Device or the Account.
P. "Unauthorized Use" means use of the Account or a Device by a person (i) who is not a Cardholder; (ii) who does not have actual, implied or
apparent authority to use the Account or Device; and (iii) whose use does not result in a direct or indirect benefit for Company, a Participant or
Cardholder.
2. USE OF ACCOUNT AND DEVICES.
A. The Account and Devices will be used only for Transactions in connection with the procurement of goods and services incidental to Company's or
Participant's business or business activities, including travel and entertainment expenses.
B. The Account will be used for Business Use only, and Company will so advise and require each Cardholder and each Participant accordingly.
Company will pay for Transactions and fees which Bank of America applies to the Account or Devices.
C. Company and each Participant will follow, and will take all steps necessary or prudent to require each Cardholder to follow, the following
procedures:
1.
A Cardholder using a Card for a Transaction may sign a sales draft or Cash Advance draft which the merchant's financial institution
processes. However, failure to sign a sales draft or receive a sales receipt will not relieve Company of its obligations under this
Agreement. Company should retain or should direct each Cardholder to retain each sales draft or Cash Advance draft as a record of the
Transaction.
A Card will not be used before the Card's valid date or after the Card's expiration date.
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3. Company and each Cardholder will check to see that the infonnation embossed on a new Card or printed on Convenience Checks and sent
to Company or Cardholder is correct. If there is an error, Company will notify Bank of America immediately.
D. If Bank of America provides Convenience Checks, they may not be used to make payment on the Account or any other loan or line of credit.
Convenience Checks will not be returned to Company or any Participant or Cardholder. Bank of America may pay a Convenience Check and post its
amount to the Account regardless of any restriction on payment, including, without limitation, a Convenience Check which is post-dated, states that it is
void after a certain date or states a maximum or minimum amount for which it may be written. To stop payment on a Convenience Check, Company or
Cardholder must call Bank of America at the Customer Service number shown on the Account Billing Statement with all the following infonnation: the
exact dollar amount of the Convenience Check; the Convenience Check number; the Account number; the name of the party to whom the Convenience
Check was written and the name of the person who signed the Convenience Check. Bank of America will stop payment on the Convenience Check if
Bank of America receives the stop payment request by the business day before the day Bank of America pays the Convenience Check. The date Bank of
America pays the Convenience Check may be before the date it posts to the Account. The stop payment order will remain effective for six (6) months.
E. Bank of America may, at the request of Company or a Participant, establish a Cardless Account.
F. If Company or Participant desires to terminate the Account or Card use (including, where applicable, use of Convenience Checks) by a Cardholder,
Company or Participant, as applicable, will notify Bank of America and will destroy the Devices issued or provided to that Cardholder. Company may
exclude a Participant from the Account by giving Bank of America written notice, and Bank of America will have a reasonable period of time to act on
any such notice. If this Agreement terminates, Company will be responsible for promptly destroying all Devices for the Account.
G. A Transaction may require the merchant, supplier or financial institution to seek prior authorization from Bank of America before completing the
Transaction. If Company advises Bank of America in writing of its desire to restrict a certain type of Transaction identified by a certain merchant
category ("Merchant Category Code"), Bank of America will take reasonable steps to withhold a requested authorization of that Transaction type,
provided it is identified by the appropriate Merchant Category Code. However, Bank of America will not be liable to Company if merchants, suppliers
or financial institutions nonetheless accept a Card or the Account for that Transaction type.
H. Bank of America is not liable if a merchant or supplier does not honor a Card or if authorization is not given.
I. If Participant is or no longer will be a majority-controlled subsidiary, affiliate or division of Company, Company must notify Bank of America
immediately; Bank of America will have the right to terminate any Account or Device which that Participant or Participant's Cardholders use.
J. Bank of America may, at the request of Company or a Participant, establish an Account with a designation which is not an actual individual,
including, without limitation, a vehicle identification number, license number, department name or "Authorized Representative".
K Bank of America may deny authorization for any Transaction if Bank of America suspects fraudulent activity or Unauthorized Use, or for other
reasons. Bank of America is not liable for any failure to authorize a Transaction.
3. CHARGE LIMIT.
A. There will be one total charge limit for the Company Account and Participant Account ("Aggregate Charge Limit"). Each Card will have its own
charge limit ("Card Limit"). In its sole discretion, and for purposes of limiting potential losses or for administering time-sensitive requests, Bank of
America may increase or decrease the Aggregate Charge Limit or any Card Limit.
B. Company, a Participant and Cardholders will not incur Transactions which would cause the sum of Company's and Participant's unpaid balance to
exceed the Aggregate Charge Limit or to cause a Card Limit to be exceeded. Any amount exceeding the Aggregate Charge Limit or Card Limit shall be
immediately due and payable.
C. If the Aggregate Charge Limit or a Card Limit is exceeded, or if an Account payment is late, Bank of America shall no longer be obligated to allow
any further Transactions.
4. COMPANY LIABILITY; ACCEPTANCE OF AGREEMENT.
A. By activating, signing or using any Device or Account, Company agrees to be bound by this Agreement regardless whether Company signs this
Agreement. Company will pay Bank of America for all Transactions, whether Company or Cardholder billed, regardless of the purpose for which the
Transaction is made, and for applicable fees and charges described in Schedules A and B.
B. Company's responsibility for Card and Account usage will continue until: (I) Receipt by Bank of America of Company's or a Participant's written
notice to close the Card or the Account; (2) actual closure of the Account by Bank of America; and (3) payment to Bank of America of all amounts due
under this Agreement.
C. Company does hereby grant to Bank of America a security interest and contractual right of offset in and to, all deposit accounts now or subsequently
maintained by the Company with Bank of America or any of its affiliates and subsidiaries. The Company, by its execution of this Agreement or use of a
Device, authorizes Bank of America to enter into a master control agreement with its affiliates and subsidiaries authorizing, upon the occurrence and
continuance of any default under this Agreement, the disposition of funds in any such deposit account to satisfy all liabilities incurred hereunder, without
the further consent of the Company. The Company's execution of this Agreement or use of a Device shall constitute an authenticated record for the
purposes of establishing control of such deposit accounts under the Unifonn Commercial Code.
D. Company agrees to indemnify Bank of America and hold Bank of America harmless from, all claims, actions, losses, costs and expenses (including
attorneys' fees and allocated costs for in-house legal services) incurred by Bank of America arising from any Unauthorized Use of a Cardless Account or
Account established in the name of "Authorized Representative," a department name or other such designation that is not an actual individual. This
Section 4.D. takes precedence over any restriction on Company's liability contained in this Agreement.
5. BILLING STATEMENTS.
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A Bank of America will provide a Billing Statement to the Card Administrator or to such other Company employee or agent as Company designates in
writing.
B. Bank of America may provide Company and the Participant, as applicable, a monthly report listing each Cardholder who has an Account balance
unpaid since the Payment Due Date on the most recent Billing Statement issued to the Cardholder and therefore is subject to cancellation of Account
charge privileges ("Delinquency Report"). Providing the Delinquency Report shall not constitute a waiver by Bank of America of any rights and
remedies it may have under this Agreement.
6. PAYMENTS.
A Company will pay Bank of America the total amount of the new balance shown as due on each Billing Statement on or before the Payment Due
Date shown on that Billing Statement. If Company does not make payment in full by the Payment Due Date, Bank of America, at its option, may assess
a late fee and finance charge in accordance with this Agreement. Assessment of a late fee or finance charge shall not be deemed to extend the time for
any payment hereunder or to constitute a "grace period" in which to cure any default.
B. Company or a Participant may arrange for direct Account payment to Bank of America from Cardholders. No such arrangement will amend or
modify Company's liabilities, including responsibility for payment, in this Agreement.
C. There is no right to defer any payment due on the Account.
D. Company shall make payment electronically via the Automated Clearing House (ACH), and Bank of America may initiate ACH debits to any
deposit account specified by Company at any financial institution.
E. All remittances must include the complete Account number in order to be processed. Failure to include the complete Account number shall
constitute a failure to make the payment.
7. CARD ADMINISTRATOR. Company will identify one or more Card Administrator(s) who will be Bank of America's primary contact for such
things as: designation of Cardholders, designation of Cardholders to receive any Devices, and correspondence regarding the Account or this Agreement,
except as provided elsewhere in this Agreement. Company may add, change or eliminate a Card Administrator by giving Bank of America written
notice.
8. LOST OR STOLEN CARDS.
A. Each Transaction resulting from use of a Device will be assumed to be an authorized Transaction unless Bank of America has received prior written
notice from Company or a Participant, as applicable, that the Cardholder is no longer authorized to use the Account.
B. If a Device such as a Card or Convenience Check is lost or stolen, or if there is possible Unauthorized Use, Company must require each Participant
and Cardholder to notify Bank of America as soon as practically possible within the first 24 hours following discovery of the loss or theft or possible
Unauthorized Use by phoning Bank of America at the phone number provided for such notice on the Billing Statement, with written confirmation as
requested in connection with Bank of America's investigation. If (i) notice as provided in this Section is given within the first 24 hours; and (ii)
Company assists Bank of America in investigating facts and circumstances relating to the loss or theft or possible Unauthorized Use of any Device,
including without limitation, obtaining an affidavit or similar written, signed statement from the Cardholder, then Company or Participant, as applicable,
will not be liable for Transactions resulting from Unauthorized Use.
9. LICENSE TO USE COMPANY'S MARKS. Ifrequested by Company, Bank of America may place Company's trademark, tradename, service
mark and/or designs ("Company's Marks") on the Card and collateral materials. Company shall provide the graphics to Bank of America in sufficient
time to allow for review and approval by Bank of America and, if necessary, the respective card association. Company grants to Bank of America a non-
exclusive license to use, during the term of this Agreement, Company's Marks on the Cards and on other materials related to the Accounts. Company
agrees to defend, indemnify and hold harmless Bank of America, its affiliates and their respective directors, officers, agents and employees for any and
all losses, costs, liabilities or expenses (including, without limitation, attorneys' and expert witnesses' fees) incurred or arising from any claim that the use
of any of Company's Marks infringes the intellectual property rights of any third party.
10. SOFTWARE.
A. The use of Visa InfoSpan software, MasterCard Smart Data software or any other third party software program and related documentation, if any,
provided in connection with this Agreement shall be governed by the terms of the end-user agreement accompanying the software.
B. Upon payment ofthe requisite license and related fees, Bank of America grants Company a non-exclusive, non-transferable, enterprise license to
use for internal business purposes the EAGLS@ software ("Software") and documentation as amended from time to time by Bank of America
("Documentation") which is provided by Bank of America to Company. Title, ownership rights and intellectual property rights in the Software and
Documentation shall remain in Bank of America or its parent, Bank of America Corporation. Company acknowledges such ownership and intellectual
property rights and will not take any action to jeopardize, limit or interfere in any manner with Bank of America's or its parent company's rights with
respect to the Software or Documentation. Company agrees to use the Software and Documentation as specified by Bank of America.
11. FEES. Company agrees to pay the fees and charges set forth in Schedule A and Schedule B hereto which are incorporated herein by reference.
12. FINANCE CHARGE. In the event Company fails to pay the total amount shown as due on a Billing Statement by the Payment Due Date shown on
that Billing Statement, the amount unpaid shall be subject to a finance charge starting no sooner than the first day of the next billing cycle. To calculate
the finance charges for a billing cycle, the daily periodic rate is multiplied by the average daily balance, and that product is multiplied by the number of
days in the billing cycle. The daily periodic rate is the annual percentage rate divided by 365. The annual percentage rate is the prime rate published in
. the Money Rates section of The Wall Street Journal in effect on the first day of each calendar month (the "Prime Rate") plus the number of percentage
points stated in Schedule A. The average daily balance is the sum ofthe daily past due balances (including, for each day, finance charges from previous
day) less payments credited to the past due balance, divided by the number of days in the billing cycle.
13. AMENDMENT OF THIS AGREEMENT. Bank may, upon written notice to Company, amend this Agreement by changing, adding or deleting
any term, condition, service or feature of an Account or of this Agreement. Company shall have thirty (30) days from the effective date of the
amendment to notify Bank of America in writing that the amendment is not accepted. Any such notice of non-acceptance shall be deemed to be a notice
of termination under Section 18 ofthis Agreement. Failure of Company to provide a notice of non-acceptance within thirty (30) days after the effective
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date of an amendment will mean that Company has accepted the amendment. Unless otherwise stated, any amendment will apply to an Account's unpaid
balance and to new activity on the Account.
14. MERCHANT/SUPPLIER CLAIMS AND DISPUTES.
A Bank of America will have no liability, and Company and each Participant and Cardholder will hold Bank of America harmless, for all Transactions
and for use of the Account. Company will make a good-faith effort to resolve with a merchant or supplier any claim or dispute arising from a
Transaction and waives any claim against Bank of America for any merchant's or supplier's refusal to honor any Device.
B. In a dispute with a merchant or supplier, the rights of the Company, any Participant and each Cardholder against the merchant or supplier will
become the rights of Bank of America, and Company and Participant will assign (and require the affected Cardholder to assign) to Bank of America each
of their rights to assert a billing error against the merchant or supplier. Company and the Participant will, and will require the Cardholder to, do
whatever is necessary to enable Bank of America to exercise those rights. Bank of America may reverse from the Account any credits relating to the
dispute.
15. FOREIGN TRANSACTIONSlFEES. If you make a Transaction in currency other than U.S. dollars, Visa or MasterCard will convert the charge or
credit into a U.S. dollar amount. The conversion rate on the processing date may differ from the rate on the date of your Transaction.
The exchange rate used by Visa will either be (i) a rate selected by Visa from a range of rates available in wholesale currency markets for the applicable
central processing date, which rate may differ from the rate Visa receives, or (ii) the government-mandated rate in effect for the central processing date.
MasterCard will use an exchange rate of either (i) a wholesale market rate or (ii) a government-mandated rate. Visa and MasterCard will no longer add
I % to the u.s. dollar amount. We may add a I % fee to the U.S. dollar amount of any Transaction that is made in foreign currency or that is made
outside the United States even if you pay in U.S. dollars (the "International Transaction Fee"). The International Transaction Fee will be shown in the
Activity section on your billing statement. Starting May I, 2005, the International Transaction Fee will be aggregated in the Other Fees category on the
Summary section of your statement.
16. REPRESENTATIONS AND WARRANTIES.
A. Company and each Participant, as applicable, represents and warrants to Bank of America that:
I. In each state in which it conducts its business, it is properly licensed, in good standing, and, where required, in compliance with fictitious name
statutes.
2. All financial and other information that it has supplied or will supply to Bank of America, including without limitation, all information on its
application for the Account, is (a) accurate; (b) sufficiently complete to give Bank of America accurate knowledge of its and any Guarantor's
financial condition; (c) in compliance with all laws and regulations that apply.
3. There is no lawsuit, tax claim or other dispute pending or threatened against it which, iflost, would impair Company's financial condition or
ability to repay Bank of America under this Agreement, except as has been already disclosed in writing to Bank of America.
4. Company represents and warrants that each Cardholder is a current employee or agent of the Company or Participant. Company represents and
warrants that the identification information relating to the Cardholder is accurate and consistent with the information contained in Company's
employment records.
B. Bank of America represents and warrants to Company and each Participant that Bank of America is a national banking association with its principal
office in Phoenix, Arizona.
C. Each party to this Agreement (Company, each Participant and Bank of America) represents and warrants that:
I. There is no event which constitutes, or with notice or lapse of time or both would constitute, a default on its part under this Agreement.
2. Each person signing this Agreement below on its behalf presently hold the title set next to his/her name and is duly authorized by it to bind the
party to the terms and conditions of this Agreement.
17. PERIODIC REVIEW OF COMPANY.
A. During the term of this Agreement, when Bank of America from time to time requests information from Company or a Participant for the purpose of
reviewing Company's or Participant's ability to perform its obligations under this Agreement, Company will furnish the information promptly. Bank of
America and its affiliates and processing agents may exchange information about Company and Participants as that information pertains to the rights and
obligations in this Agreement.
B. Company will notify Bank of America in writing immediately of any change in the business name, the principal officers like the Chief Executive
Officer and Chief Financial Officer, the mailing address or the phone number of Company or a Participant. Company will also notify Bank of America
of any change of mailing address or phone number of any of its Cardholders.
18. TERMINATION. Either party may terminate this Agreement with or without cause upon sixty (60) days' prior written notice to the other party.
19. EVENTS OF DEFAULT
The following are events of default hereunder: (a) the failure to payor perform any obligation, liability or indebtedness of Company, a Participant or a
Guarantor (each, an "Obligor") to Bank of America, or to any affiliate or subsidiary of Bank of America Corporation, whether under this Agreement or
any other agreement, as and when due (whether upon demand, at maturity or by acceleration); (b) the failure to payor perform any other obligation,
liability or indebtedness of any Obligor to any other party; (c) the death of any Obligor (if an individual); (d) the resignation or withdrawal of any partner
or a material owner of any Obligor as determined by Bank of America in its sole discretion; (e) the commencement ofa proceeding against any Obligor
for dissolution or liquidation, the voluntary or involuntary termination or dissolution of any Obligor or the merger or consolidation of any Obligor with
or into another entity; (f) the insolvency of, the business failure of, the appointment of a custodian, trustee, liquidator or receiver for or for any of the
property of, the assignment for the benefit of creditors by, or the filing of a petition under bankruptcy, insolvency or debtor's relieflaw or the filing of a
petition for any adjustment of indebtedness, composition or extension by or against any Obligor; (g) the determination by Bank of America that any
representation or warranty made to Bank of America or to any affiliate or subsidiary of Bank of America Corporation by any Obligor in any agreement or
otherwise is or was, when it was made, untrue or materially misleading; (h) the failure of any Obligor to timely deliver such financial statements,
including tax returns, other statements of condition or other information, as Bank of America shall request from time to time; (i) the entry of a judgment
against any Obligor which Bank of America deems to be of a material nature, in Bank of America's sole discretion; (j) the seizure or forfeiture of, or the
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issuance of any writ of possession, garnishment or attachment, or any turnover order for any property of any Obligor; (k) the determination by Bank of
America that it is insecure for any reason; (I) the determination by Bank of America that a material adverse change has occurred in the financial condition
of any Obligor; (m) the determination by Bank of America that any Obligor fails to meet the credit criteria initially used by Bank of America to approve
Obligor; or (n) the failure of any Obligor to comply with any law or regulation controlling its operation.
20. REMEDIES UPON DEFAULT. Whenever there is a default under this Agreement, (a) the entire balance outstanding on all Accounts and all
other obligations of any Obligor to Bank of America (however acquired or evidenced) shall, at the option of Bank of America, become immediately due
and payable; (b) any obligation of Bank of America to permit further Transactions under this Agreement shall immediately cease and terminate; and/or
(c) this Agreement or any Account may be terminated by Bank of America. The foregoing remedies are in addition to any other rights of Bank of
America under this Agreement.
21. EFFECT OF TERMINATION. Upon termination ofthis Agreement, Company will be responsible for promptly destroying all Devices.
Termination will not affect Company's liability for any charges or other obligations under this Agreement. After termination, this Agreement (except the
ability to use the Account for additional Transactions) will remain in force until all Transactions and Company's other obligations under this Agreement
are paid and satisfied in full. Further, Company shall ensure that no new Transactions are made on the Account. However, if any Transactions are made
after termination, Company will continue to be liable until they are paid in full.
22. GOVERNING LAW. This Agreement is made in Arizona. This Agreement and the Account, as well as Bank of America's rights and duties
regarding this Agreement and the Account, will be governed by the laws respecting national banking associations and, to the extent not so covered, by
the laws of the State of Arizona, regardless of where Company resides or where a Cardholder uses the Account at any time. Company will submit to the
personal jurisdiction of any state or federal court or of Judicial Arbitration and Mediation Service ("JAMS") located in the State of Arizona.
23. ARBITRATION.
A. This paragraph concerns the resolution of any controversies or claims between the parties, whether arising in contract, tort or by statute, including
but not limited to controversies or claims that arise out of or relate to: (i) this Agreement (including any amendments or modifications); or (ii) any
document related to this agreement; (collectively a "Claim").
B. At the request of any party to this agreement, any Claim shall be resolved by binding arbitration in accordance with the Federal Arbitration Act
(Title 9, U. S. Code) (the "Act"). The Act will apply even though this agreement provides that it is governed by the law of a specified state.
C. Arbitration proceedings will be determined in accordance with the Act, the applicable rules and procedures for the arbitration of disputes of JAMS
or any successor thereof, and the terms of this paragraph. In the event of any inconsistency, the terms of this paragraph shall control.
D. The arbitration shall be administered by JAMS and conducted in the state specified in the governing law section of this agreement. All Claims shall
be determined by one arbitrator; however, if Claims exceed $5,000,000, upon the request of any party, the Claims shall be decided by three arbitrators.
All arbitration hearings shall commence within 90 days of the demand for arbitration and close within 90 days of commencement and the award of the
arbitrator(s) shall be issued within 30 days of the close of the hearing. However, the arbitrator(s), upon a showing of good cause, may extend the
commencement of the hearing for up to an additional 60 days. The arbitrator(s) shall provide a concise written statement of reasons for the award. The
arbitration award may be submitted to any court having jurisdiction to be confirmed and enforced.
E. The arbitrator(s) will have the authority to decide whether any Claim is barred by the statute of limitations and, if so, to dismiss the arbitration on
that basis. For purposes of the application of the statute of limitations, the service on JAMS under applicable JAMS rules of a notice of Claim is the
equivalent of the filing of a lawsuit. Any dispute concerning this arbitration provision or whether a Claim is arbitrable shall be determined by the
arbitrator(s). The arbitrator(s) shall have the power to award legal fees pursuant to the terms of this agreement.
F. This paragraph does not limit the right of any party to: (i) exercise self-help remedies, such as but not limited to, setoff; (ii) initiate judicial or
nonjudicial foreclosure against any real or personal property collateral; (iii) exercise any judicial or power of sale rights, or (iv) act in a court oflaw to
obtain an interim remedy, such as but not limited to, injunctive relief, writ of possession or appointment of a receiver, or additional or supplementary
remedies.
G. The filing of a court action is not intended to constitute a waiver of the right of any party, including the suing party, thereafter to require submittal of
the Claim to arbitration.
24. COSTS AND ATTORNEY FEES. If either party incurs expenses related to the enforcement of, or takes collection action under, this Agreement,
the prevailing party is entitled to recover from the other party costs and reasonable attorney fees.
25. TELEPHONE MONITORING. Bank of America may listen to and/or record telephone calls between a Bank of America employee and any
person acting on Company's or a Participant's behalffor the purpose of monitoring and improving the quality and effectiveness of Bank of America's
communication.
26. SUCCESSORS AND ASSIGNS. This Agreement and all terms and conditions hereof, are not assignable or transferable by Company or any
Participant without Bank of America's prior written consent. All the terms and provisions of this Agreement will inure to the benefit of and be binding
upon each party and its successors and permitted assigns.
27. NOTICES. Any notice required or permitted under this Agreement shall be effective only if it is in writing and (i) personally delivered, (ii) sent by
U.S. mail, postage prepaid, (iii) sent by a nationally recognized overnight delivery service, with delivery confirmed, (iv) telecopied, if confirmed with an
error-free transmission report, or (v) e-mailed to such e-mail address as shall have been furnished to the other party, with delivery confirmed, addressed
as set forth below. Such notices shall be deemed to have been duly given either five (5) business days after the date of mailing byU.S. mail as described
above or if otherwise sent, on the business day of receipt. Notices delivered after 5:00 p.m. shall be considered received on the next business day. A
party may alter the address or telecopy number to which notices are to be sent by giving notice of such change in conformity with the provisions of this
Section 27.
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Notices to Bank of America must be sent to:
Notices to Company must be sent to:
A. (for U.S. Mail)
Bank of America
P.O. Box 2463
Spokane, W A 99210-2463
A.
(for overnight delivery service)
Bank of America
Commercial Card
Floor 2
1616 South Rustle Street
Spokane, W A 99224
Telecopy:
e-mail:
Attention:
OR:
B. Company's corporate account address as designated in Bank of
America's credit card processing system.
OR:
B. Bank of America's Large Corporate and Commercial
Card Services representative for Company's program
at the address designated during implementation of
Company's program.
C. WITH A COPY to the following address if the notice relates to a Claim:
Counsel for Commercial Card Services
Bank of America Legal Department
101 South Tryon Street
NCI-002-29-01
Charlotte, NC 28255
28. SEVERABILITY. If any provision of this Agreement is held to be invalid, void or unenforceable, all other provisions in this Agreement will
remain valid and enforceable.
29. LIMITATION OF LIABILITY. BANK OF AMERICA SHALL NOT BE LIABLE TO COMPANY, ANY PARTICIPANT OR CARDHOLDER,
FOR ANY ACTION TAKEN OR OMITTED TO BE TAKEN IN CONNECTION WITH THIS AGREEMENT EXCEPT FOR DIRECT DAMAGES
ARISING FROM BANK OF AMERICA'S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT. IN NO EVENT SHALL BANK OF
AMERICA BE LIABLE TO COMPANY, ANY PARTICIPANT OR CARDHOLDER, FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL OR
PUNITIVE DAMAGES OR' LOST PROFITS OR LOST DATA.
30. WARRANTY DISCLAIMER. ALL SERVICES, EQUIPMENT, SOFTWARE AND OTHER PRODUCTS FURNISHED BY BANK OF
AMERICA TO COMPANY OR A P ARTICIP ANT ARE PROVIDED ON AN "AS IS," "AS AVAILABLE" BASIS AND BANK OF AMERICA
EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A
P ARTICULAR PURPOSE.
31. ONE AGREEMENT. This Agreement and any other agreements required by this Agreement, collectively: (a) represent the sum ofthe
understandings and agreements between Bank of America and Company concerning the subject matter ofthis Agreement; (b) replace any prior oral or
written agreements between Bank of America and Company concerning this Agreement, and (c) are intended by Bank of America, Company and each
Participant as the final, complete and exclusive statement of the agreement between/among them. No failure on the part of Bank of America to exercise,
and no delay in exercising any right under this Agreement, will operate as a waiver of that right. Unless other provisions in this Agreement expressly
provide otherwise, the terms of this Agreement will prevail if there is a conflict between this Agreement and any other agreements required by this
Agreement.
IN WITNESS WHEREOF, the parties hereby execute this Agreement as of the Effective Date shown below.
BANKOFAM.(RfC#(USA);/ / ENTER COMPANY NAME
Signature: 7~~ Signature:
Name: H ~;:z. I A K... 01'1 ",/ Name:
Title: yj ( ~ ~~/ DbI r Title:
Date:
I~/ 1 05
Date:
Telephone Number:
EFFECTIVE DATE:
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Countersigned:
-::J~ j/;' ~
Frank V.J::.H6bard
Mayor
Approved as to form:
P1~~
Pamela K. Akin
City Attorney
CITY OF CLEARWATER, FLORIDA
By: ~""~ ~t9<~~
William B. Horne II
City Manager
Attest:
~ >, - -_.-
~'-~ ~
~ynthi n~Ude~ / it? ,
Ity Clerk ~ -_ ". . . _: .~..
..~/. ..... '. . 1-.
SCHEDULE A
TO
BANK OF AMERICA City of Clearwater CARD AGREEMENT
GENERAL PRODUCT FEE SCHEDULE
Payment Method and applicable fee: ACH Debit
Annual Card Fee (Per Card): Waived
Late Fee: Assessed if full payment is not received by Payment Due Date.
Central Bill Accounts: Minimum $250.00, Maximum $3,500.00 $250.00
Individual Bill Accounts: $29.00
Periodic Finance Charge: Prime + 3.00%
Cash Advance Fee: Minimum $5.00, no maximum 2.5%
Overlimit Fee: NA
Central Bill Accounts: Assessed when Aggregate Charge Limit is exceeded.
Individual Bill Accounts: Assessed when any Card Limit is exceeded. NA
Returned Payment Fee: $29.00 per occurrence
Copy Fee: $3.00 per copy
Logo Fee: Waived
Unique Card Design Fee: Quoted by Design
SELECTION OF SETTLEMENT PERIOD
Indicate the Settlement Period or number of days after the statement closing date within
which payment is due.
30 day billing cycle
14 day grace period
WAIVER PROGRAM: Depending on whether the Account is a Visa account or a MasterCard account, the Account will be subject to either the Visa
Liability Waiver Program or the MasterCoverage@ Liability Protection Program. This coverage is designed to protect financial institutions and
companies from employee misuse of the Account resulting in unauthorized Transactions. Bank of America will waive Company's liability for waivable
charges up to the limit of coverage as provided in the liability waiver program ("Waiver Program") upon notice by the Waiver Program underwriters that
the Transaction at issue qualifies as a waivable charge. This waiver will be according to the terms and subject to the exclusions of the Waiver Program as
established from time to time by the Waiver Program Underwriters, including without limitation, the condition that Company meets all of its obligations
under the Waiver Program which may change from time to time. Current terms of the Waiver Program as set forth in the brochure, which Bank of
America will provide to Company are incorporated in this Agreement by reference. The Waiver Program may be terminated by Bank of America or the
Waiver Program underwriters, effective immediately upon notice to Company.
UP TO $500,000 TRAVEL ACCIDENT INSURANCE (NOT AVAILABLE FOR CORPORATE FLEET CARDS): This coverage will offer up to
$500,000 in automatic common carrier travel, accidental death and dismemberment insurance when employees charge the entire cost of the passenger
fare for land, sea, or air public transportation on their Cards. A disclosure, which outlines the program details will be provided to Company and
Cardholders.
CityofClearwaterScheduleA
SCHEDULE B
TO
BANK OF AMERICA CORPORATE CARD AGREEMENT
City of Clearwater
ELECTRONIC PRODUCT FEE SCHEDULE
Works Payment Manager
Internet Software: *Works Payment Manager
Custom Reports: Included in the 100 IT hours in Works Implementlltion
Custom Interface: Included in the 100 IT hours in Works Implementlltion
*lnteiface warranty period of 1 year
Software Training:
1 Phone Training Session per License
Training sessions on-site
$10,000.00 (See below fee option)
$0
Fee Waived
*For Company and Participants a one time Works Payment Manager fee of$lO, 000 for City of Clearwater is waived with
the custom pricing offered in schedules A, B and C. See Training section for fees on additional on-site training.
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SCHEDULE C
BANK OF AMERICA Corporate Card AGREEMENT
City of Clearwater
Rebate Definitions:
"Transaction Volume" means, with respect to any Calculation Period, the total dollar amount of purchase transactions made
with the Cards, less the total dollar amount of: returned purchases, credit adjustments, credit losses, Large-Ticket Interchange
Transactions, international transactions and disputed charges. "Large-Ticket Interchange Transactions" means certain
transactions which, based upon the type of merchant and/or transaction dollar amount, are subject to a Visa or MasterCard
large ticket interchange program, as determined by and amended by Visa and MasterCard from time to time. Cash advances
and Convenience Checks are not included in Transaction Volume. "Calculation Period" means, initially, the l2-month period
commencing sixty (60) days after Bank of America receives a fully executed original of this Agreement and thereafter, each
subsequent l2-month period.
Rebate Conditions:
The program must meet the following conditions in order to qualify for a rebate:
(i) During the Calculation Period, Company pays Bank of America the total amount ofthe new balance shown as due on
each Billing Statement on or before the Payment Due Date;
(ii) The total number of Cards and Cardless Accounts at any given time during the Calculation Period does not exceed
NA;
(iii) The actual Transaction Volume for the Calculation Period is at least equal to $1; and
(iv) Company does not breach any obligation, covenant, representation or warranty contained in this Agreement.
Rebate Calculation and Payment:
Should Company meet all of the above Rebate Conditions, Bank of America agrees to pay a rebate to Company, which shall
equal the product of the Transaction Volume and Below referenced %. Such payment shall be made by ACH credit or other
means determined by Bank of America, within ninety (90) days following the end of the Calculation Period.
Should Company fail to meet one or more of the above Rebate Conditions, Bank of America shall be under no obligation to
pay any rebate, although Bank of America may, in its sole discretion, determine to pay a rebate in an amount determined by
Bank of America. Bank of America's payment of a rebate in such circumstance shall in no way obligate Bank of America to
pay a rebate with respect to any subsequent Calculation Period.
City of 30 day cycle
Clearwater
Purchase
Card
Volume Tiers 14 days
Grace
Excludes
Large Ticket
$0 $999,999 0
$1,000,000 $2,999,999 40
$3,000,000 $5,999,999 50
$6,000,000 $8,999,999 60
$9,000,000 $11,999,999 65
$12.000000 $14,999,999 70
$15,000,000 $19,999,999 75
$20,000,000 + 80
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Transactions that qualify for Large Ticket Interchange Qualification
will be eligible for a Large Ticket Rebate based on the following schedule,
provided the Large Ticket Qualified Transactions do not exceed 50% of total volume
and the Standard Volume qualifies for rebate
Large Ticket Volume Cycle Days 14 14 30 30 30 30
Not to Exceed 50% Grace Days 3 7 3 7 14 25
of total Card volume Rebate Basis Points
$0 $1,499,999 39 35 31 27 20 10
$1,500,000 $4,999,999 49 45 41 37 30 20
$5,000,000 $19,999,999 59 55 51 47 40 30
$20,000,000 + 64 60 56 52 45 35
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