HomeMy WebLinkAboutR-90-25RESOLUTION NO.: R-90-25
A RESOLUTION OF THE CITY OF SEBASTIAN, INDIAN RIVER
COUNTY, FLORIDA, AUTHORIZING THE MAYOR AND THE CiTY
CT~'[:;~ TO SIGN, ON BEHALF OF THE CITY, AN AGREEMENT FOR
BANK CHARGE CARD SYSTEM PARTICIPATION WITH FIRST UNION
NATIONAL BANK; PROVIDING FOR REPEAL OF RESOLUTIONS OR
PARTS OF RESOLUTIONS IN CONFLICT HEREWITH; PROVIDING
FOR SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the City desires to participate in the Bank Charge
System operated by First Union National Bank with respect to
enable holders of MasterCard/Visa to pay for goods and services
provided by the City with those charge cards; and
WHEREAS, the City Council of the City of Sebastian, after
reviewing the proposed Bank Charge Card System Participant
Agreement proposed by First Union National Bank and engaging in
deliberations, has determined that it would be in the best
interest of the City of Sebastian and its citizens, and in
furtherance of a valid municipal purpose, for the City of
Sebastian to enter into the proposed Bank Charge Card System
Participant Agreement and to sign such other documents necessary
to effectuate and consummate the transactions contemplated in the
proposed Bank Charge Card System Participant Agreement.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA, that:
Section 1. AGREEMENT. The Mayor and the city Clerk of
the City of Sebastian, Indian River County, Florida, are hereby
authorized to sign, on behalf of the city, the proposed Bank
Charge Card System Participant Agreement between First Union
National Bank and the City of Sebastian, a copy of which is
attached to this Resolution as Exhibit "A" and by this reference
is incorporated herein. The city Manager or his designee is
authorized to sign such other documents necessary to carry out
the transactions contemplated in the proposed Bank Charge Card
System Participation Agreement.
SectiQn 2, CONFLICT. All resolutions or parts of
resolutions in conflict herewith are hereby repealed.
Section 3. SEVERABILITY. In the event a court of
competent jurisdiction shall hold or determine that any part of
this Resolution is invalid or unconstitutional, the remainder of
the Resolution shall not be affected and it shall be presumed
that the City Council of the City of Sebastian did not intend to
enact such invalid or unconstitutional provision. It shall
further be assumed that the City Council would have enacted the
remainder of this Resolution without said invalid and
unconstitutional provision, thereby causing said remainder to
remain in full force and effect.
Section 4. EFFECTIVE DATE. This Resolution shall take
effect immediately upon its adoption.
2
The foregoing
Councilman
by Councilman
vote, the vote was as follows:
Resolution was
moved for adoption by
. The motion was seconded
and, upon being put to a
absent
Mayor W. E. Conyers
Vice-Mayor Frank Oberbeck aye
Councilman Robert L. McCollum aye
Councilman Lonnie R. Powell aye
Councilman Lloyd Rondeau absent
The Mayor thereupon declared this Resolution duly passed and
adopted this 25thday of July , 1990.
CITY OF SEBASTIAN, FLORIDA
ATTEST: .~i 31. 05erbeck, Vice May0~
Kathry~Mi O'ffallbran, CMC/AAE
City Clerk
(Seal)
Approved/~s~o Form ?nd Content:
ah Nash' City Attorney
I~t !1 HJ_T "A"
BANK CHARGE CARD SYSTEM
PARTICIPANT AGREEMENT
THIS AGREEMENT, between __
First Union
(Bank)
and the tmdersigned participant (Participant), Witnesseth:
WHEREAS, Bank has joined with other banks in rite MasterCard
and/or VISA System hereinafter referred to as Bank Charge System
lo enable holders of MasterCard / VISA cards, hereinafter referred to
as Charge Cards to purchase goods and services from merchants by
use of Charge Cards; and Participant wishes to participate in the
Bank Charge System by furnishing goods or services to be paid for
by a cardholder through the Bank Card System;
THEREFORE, Bank and Participant agree as follows:
I. Participant will sell merchandise or render services to any
holder or authorized user of a Charge Card issued by any member
Bank of the Bank Charge Card System, MasterCard inlernalional or
VISA, U.S.A., Inc. subject to the exceptions, limitations, terms and
conditions of this Agreement. Participant acknowledges that this
Agreement is limited to the products and/or services described in the
merchant Application unless prior written consent is obtained from
Bank.
2. Participant will use forms, supplies and equipment prescribed
or furnished by the Bank and will follow and abide by operating rules
and procedures established from time to time by the Bank Charl~e
Card System, MasterCard International, VISA U.S.A., Inc. and tFie
undersigned member Bank.
3. Participant will carefully examine each Charge Card presented
to Participant for the purpose of determining: (a) ]'hat such card has not expired
{b) That such card has not been revoked
(c) That such card is not in the Combined Warning Bulletin
or otherwise invalid.
Participant will use his best efforts to retrieve each card which has
expired, been revoked, is counterfeit, is listed on a void card list or is
otherwise invalid and will deliver such card to Bank or notify Bank of
the presentment of any such card if not recoverable.
4. Participant will examine items of personal identification of the
Cardholder or authorized user in such number and of such nature as
Bank shall designate and will note pertinent in~nnation on sales dratts
when so inslructed by Bank.
5. Participant warrants and represents that each sales draft pre-
seuted by it to tile Bank was received in payment of the purchase price
fi~r ~oods or xervices actnally rendered in good faith for the price set
forth in such draft (unless the amount of the purchase price in excess
of tile amount stated in the sales draft was paid in cash at the time of
sale); is not subject to any disputes, scruffs or counter~clalms; is drawn
by bona fide Cardholders to whom Participant has actually sold the
goods and/or Services: that same was personally signed by the Card-
holder, and that each such Cardbolder had legal capacity to contract at
the time of purchase; that all statements of fact contained therein are
true and Participant has no knowledge which would impair the
validity or collectibility of each sales draft submitted to Bank; that
Partici~pant has checked the Charge Card as to validity and authenticity
thereo~ and also has checked the Combined Warning Bulletin supplied
by Bank; that the designated number and types of items of personal
identification of the holder or authorized user have been requested and
examined by Participant, except where not required by Bank; that the
total charges mad~ .within any 24-hour period at Participant's place of
business do not exceed the floor limit set by the tales and regulations
of MasterCard International and VISA USA., lac.. except as other-
wise authorized by Bank; that the purchase of any single item of goods
and/or services has not been consummated by the execution by the
holder or authorized user of more than one sales draft; that such
transaction does not involve any element of credit; that there have been
no. spe. ci,al charges nor any special agreements, conditions or security
,e.,x,~?~ in co, nnec, tio..n wi~ ,.~e, transaction; that Participant has good
due to me sines oraR uno ~ nas not previously been assigned or
encumbered; and that the sales draft does not represent any illegal sale.
6. All the sales drafts tendered to Bank by Participant shall be pre-
gred in the number of copies required from time to time by Bank.
rticipant will deliver the copy designated for Cardholder to Card-
holder at the time of the transaction. All copies shall legibly state the
date of the transaction, name and address of Participant, adequately
describe the goods and/or services sold, and state the total cash paid,
includin~ all applicable taxes, the Charge Card number, and the name
of the hinder and authorized user, If such is not the same person, and
other information required from time to time by Bank; that the sales
draft evidences a transaction between the participant and the Card-
holder with no third party broker; and that the sales draft does not
represent any illegal sale.
7. Participant, if making a sale to a Cardholder, without use of
his Charge Card, will: (a) obtain Cardholder's name and account
number from Cardholder or from Bank or Bank Charge Card System;
(b) contact Bank Charge Card System or its designated agent by
telephone for authorization for the amount of such sale, advise of
non-l~resentment of Charge Card, and if given, write the authorization
numoer on !he sales slip; (c) if authorization is given, lel~ibly write
Cardholder s name and account number and legibly impnnt tile em-
bossed legend from the Participant plate on the sales slip and complete
it as provided herein; (d) have the sales slip signed and furnish a copy
thereof to Cardholder as provided herein. Participant is liable t~t;r
charges made using an invalid, expired, or cancelled Card number and
Participant's account will be charged back For any such charges made.
8. Participant, if making a sale to a Cardholder by mail or
telephone, wil/follow the procedure provided in,paragraph 7 hereof,
except that' (a) Participant will si n Partici ant s name m t
- ' - g P he space
provided for Cardholder's signature on the sales slip and note that the
order was placed by telephone (TO) or mail (MO).
9. Sales to Cardbolders by mail or telephone as provided in
Paragraphs 7 and 8 hereof (Identity Responsibility Sales) are at Patti-
cipant's option. In making them Participant shall be deemed to
warrant that the purchaser is the person whose name appears as
Cardholder on the sales slip, or sales application slip, and that, with
respect to Paragraphs 7 ands hereof, the name, account number and
expiration date appearing on the sales slip are the same as those
embossed on such Charge Card.
I0. Except for Identity Responsibility Sales and subject to
Paragraph 5 hereof, Participant has no liability to Bank in connection
with sales drafts because of forgery or use ufa counterfeit card if Par-
ticlpant has exercised due care and diligence in complying with the
terms of this Agreement. The Participant shall not disclose to third
tPharties other than to the Participant's agents for the purlS, se 'ut' assisting
e Participant in com, pleflng the transaction or as specifically recluire8
by law a Cardholder s account information nor other personal refor-
mation obtained without the prior written consent of the Cardholder
on a document other than the draft. All media containing debit or
credit card account numbers, imprints, such as sales and credit slips,
and carbons must be stored in an area limited to selected personnel
until discarding, and must be destroyed in a manner that will render
the data unreadable.
II. Participant will cause Participant's name or trade name to be
written, stamped or printed to each sales draft prior to deposit, and
will delx~sit each sales draft, using a form of deposit ticket provided or
authorized by Bank, in Participant's al'oresaid clearing account before
the Bank closes for.regular banking business on the next regular Bank
business day after the date of the sales draft. Bank is authorized to
stamp or write Participant's name on any sales draft if Particil~ant has
failedto do so. If Participant's name is written, stamped or printed on
sales drafts as required by the paragraph, it shall be deemed to be
endorsed, assigned and transferred to Bank. Upon receipt of such
deposits Bank will purchase such sales drafts for the face amount
thereof.
12. Bank will furnish a monthly statement to Participant from
which Participant will be able to determine the total amount of sales
rellected by sales drafts purchased','the total amount of credits shown by
credit slips,issued to Participant's customer, the net total amount of
Cardholder s accounL~ purchased, and will charge Participant's account
for ~ per centum of the net sales as a tentative discount,
with the minimum discount being $15.(gr. Pagljcipant agrees, if required
by Bank, to authorize every MasterCard and Visa tran~ctJon deposited
with Bank, and further agrees to deposit all MasterCard and Visa trans-
actions daily, Monday through Friday, excluding holidays. Bank has the
right to amend this agreement includlnl~ but not limited to the
discount rate by providing Participant with written notice.
13. Bank or its assignee has sole right to receive paymenL,; on sales
drafts assigned to and purchased by Bank until charged back to
Parlicipant. If any payments are received Participant will hold them
in trust for Bank and promptly remil them in kind to Bank, with infor-
mation showing Cardholder's name and account number and identi-
fying the transaction involved.
14. Participant agrees that irrespective of any non-recourse pro-
vision stated on Bank Charge Card System sales drafts Participants will
pay to Bank on demand the amount paid or credited to Participant for,
and Participant will indemnify Bank against all liability, loss, claims
and demands whatsoever arising in connection with Unqualified Sales
DratL,;, meaning sales drafts and the transactions evidenced thereby: (at
which are not in all respects legible and as represented, warranted or
agreed herein; or (bt in conneeiton with which; (I) the Charge Card
used had expired or prior notice of its revocation or invalidity was
given Participant; (2) any required credil authorization, account num-
ber, obligation, time period, procedure or agreement hereof has not
been obtained, fulfilled or observed; (3) the merchandise has been
returned, whether or not a credit slip isgiven Bank; (4) the merchan-
dise or services have not been deliveredor perfi~rmed as agreed;
there is any dispute or defense between Participant and Cardbolder
whether or nol valild: (6) the purchaser is not the person named as
Cardholder in an Identity Responsibility Sale; (7) Participant has not
exercised reasonable diligence in determing to the best of Partici-
pant's ability, that the card used was a Chard Card issued for use in
the Bank Charge Card System or that the signature on the sales dralt
corresponds with the authorized signature on the Charge Card, or there
has been any negligence, [rauc] or dishonesty of Participant or
any employee thereof; or (8) the transaction for which the sales draft
was given in violation of law or the rules or regulations of any
governmental agency, federal, state or local Bank may debit the
amount of any Unqualified Sales Draf~ to Participant's account and has
the right to withhold funds on deposit in Participant's clearing account
in such amounts as may be required Io cover anticipated returns and
charge backs. No delay by Bank in demanding payment herein or
pursual by it of alternate remedies shall constitute a waiver or estoppel
against it. In addition to any right of setoff available to Bank under
law, Participant grants Bank a security interest in any other account
of Participant to secure all payment required or other extensions of
credit to Participant, now or in the fi~ture.
13. Participant agrees to establish a fair policy for the exchange
and return of merchandise and adjustment br services rendered and
for that purpose will give credit upon such exchange, return or ad-
justment. Participant wilt make no cash refunds to purchasers on
Charge Card Sales. It' any merchandise is returned or price adjustment
allowed or the purchaser is not the person whose name appears as
Cardholder in.any Identity Responsibility Sale, Participant will legibly
complete, date and sign a credit slip in form as provided for Partici-
pant, and within three (3) Bank business days thereafter, deliver it to
Bank and give a true completed copy to Cardholder when appropriate.
The amount shown o~ each s6ch credi! slip wil! be charged to Par-
tlcipant's account or, upon demand, Participant wdl pay the amou.n.! of
each credit slip issued and will indcmni.fy Bank against all liabdlty,
loss, claims and demands whatsoever arising in connection with the
return of merchandise, price adjustments, Identity Responsibility Sales
and copies of credit slips and sales drafts to purchasers which differ
from the originals, whether or not a credit slip is used.
16. Upon receipt of credit slips which are in compliance with the
terms of this Agreement, Bank will charge against Pattleipant's ac-
count the total shown thereon evidencing the original purchase of
goods or setv, ices. All sales drafts, credit slips anddeposit slips are
subject to review and verification by Bank. In t,h_e event of any error,
Bank may credit to or charge against Participant s ac,count, as the case
may be, the proper corrective amount without not,ce.
17. If any transaction pursuant to,this Agreement or otherwise
results in a debit balance of Participant s account, Participant will im-
mediately pay to Bank, on demand, the amount of such debit balance.
lg. Participant will promote, and assist Bank and other Bank
Charge Card System, MasterCard International and VISA U.S.A., Inc.
memoers in the promotion of Bank Charge Cards. Participant
will display advertising furnished by Bank to advise the public of the
availability of Bank Charge Card S~,stem. Imprinter, forms and sup~
plies furnished by Bank will remain the property of Bank.
19. Bank will furnish procedure and time schedules for credit
authorization from time to time.
20. Participant will: (at pay Bank a membership fee of: /k.{D,
-..
~ ~'/t~, (~,o .-64;"rg4~ /') dollars, plus
a membership fee of · Il/&,
for each additional location operated by Participant; (bt preserve all
records pertaining to Charge Card Sales and Pre-Charge Card Sales
and one copy of each completed sales draft and credit slip for one year
from date hereof and permit Bank to examine and verify same at any
reasonable time. Participant waives notice of default or non-payment,
protest or notice of protest, demand for payment and any other
demand, or notice in connection with any sales drafts, Charge Card
Sale, Identity Responsibility Sale, credit slip or this Agreement and
consents to all extensions or compromises given any Cardholder and
agrees that such does not affect an}, liabili!rv of Participant hereunder.
If a petition shall be filed by or against Participant under any provision
of the Bankruptcy Act or amendments thereto, or ifa receiver shall be
appointed for it or any of its property, or if a judl~ment shall be
rendered against it, attachment issued against any of its property, in-
junction issued against it or if a meeting of its creditors shall be called
Io consider its distressed financial condition, or if it shall become
insolvent, commit an act of banktu,ptcy, make an assignment for
benefit of creditors, appoint a committee of creditors or liquklating
agent, make an offer of composition or bulk sale, or if it ~being an
individual) shall die, or (being a partnership or corporation) shall be
dissolved or cease to do business, then andin any such events Bank
shall have the option to require Participant to forthwith repurchase all
ontstanding sales drafts purchased by Bank hereunder with recourse or
with respect to which Participant is liable to Bank hereunder and shall
ay thereof a repurchase price equal to the amount unpaid and owing
ereon. Bank may charge any account Participant may have with
Bank thereof. This Agreement is effective when signed .by Participant
and Bank and binds their respective heirs, representatii,~s, successors
and assigns.
21. Participant agrees that participant is not furnishing credit to
or making sales on credit to Catdholders in Charge Card transactions.
Participant acknowledges notice that a finance charge is made by the
Bank or other card Issuer upon balances owing from Cardholders to
the bank or other card issuer in eonnec, tion with sales drat~ drawn by
Cardholdera and presented by Participant to the Bank. Participant
agrees that, if Participant should make any differential between the
cash price and the credit card price for any merchandise or services,
or make any special charge for the use of the Charge Card, Participant
will first give written notice to4he Bank and will cooperate reasonably
and lawfully with,the Bank for the purpose of complying with all
usury laws and all laws requiring disclosure of information to con-
sumer. Participant agrees Io hold and save the Bank harmless from
loss, liability and expense, including penalties and attorney's fees re-
sulting from or caused by Participant's violation of this paragraph 21.
22. Participant may not present for processing or entry into
Interchange, directly or indirectly, any paper which was not ori-
ginated as a result of an act between the Cardholder and Participant.
23. The right of Participant to make Charge Card Sales and to
use advertising displays, forms, m,aterials and equipment developed for
use in the Bank Charge Card System or providedby Bank shall con-
tinue only so long as this A[reement remains in effect and untermi-
hated. This Agreement may be terminated by either party by I~iving or
mailing written notice thereof to the other. All existing obhgations,
warranties and agreemenL~ with te.~pect to sales dral~ deposited before
such termination, and credit slips in connection therewith, shall re-
main in full force and effect.
24. This Agreement is binding on all mutually agreed upon
Iocation.~.
25. This Agreement supersedes all prior contracts with Bank
or its predecessors.
Dated:
By:
F i r s~_ll~iQn NatiQna~_Bank
tBank)
By:
city of Sebastian
(Par. ttclpa.i)
12 2~a.i]~ Stre~
Sebastian. F1 .ada~9~
~__;_'" ..... . . ~a,e , ~
E. JJ' O~beck, Vice Mayor
A~EEST:
Kathryn~O~ Halloran ~ CMC/AAE
City Clerk
charle~-~an Nash, City Attorney