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HomeMy WebLinkAboutReso 93-054 - Approve & Authorize - electronic authorization & deposit system on credit card sales at Convention Ctr & City Treasurer signing Merchant Bankcard agreement Guarantee RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF REDDING APPROVING AND AUTHORIZING: 1) AN ELECTRONIC AUTHORIZATION AND DEPOSIT SYSTEM ON CREDIT CARD SALES AT THE CONVENTION CENTER AND OTHER REVENUE-COLLECTING DEPARTMENTS OF THE CITY; AND 2) THE CITY TREASURER SIGNING THE MERCHANT BANKCARD AGREEMENT GUARANTEE AND OTHER NECESSARY ANCILLARY DOCUMENTATION BETWEEN THE CITY OF REDDING AND FIRST INTERSTATE BANK OF CALIFORNIA. IT IS HEREBY RESOLVED by the City Council of the City of Redding as follows: 1. That the City enter into an electronic authorization . and deposit system on credit card sales at the Convention Center and other revenue-collecting departments of the City, effective March 1, 1993 . 2. That the City enter into the Merchant Bankcard Agreement Guarantee attached hereto and incorporated herein by reference between the City of Redding and First Interstate Bank of California, commencing March 1, 1993 , pursuant to the attached Report to City Council. 3. That the City Treasurer of the City of Redding is hereby authorized and directed to sign said Agreement and all other necessary ancillary. documentation on behalf of the City of Redding; and the City Clerk is hereby authorized and directed (%It1 4 P Y 1 V i to attest the signature of the City Treasurer and to impress the official seal of the City of Redding thereto. I HEREBY CERTIFY that the foregoing Resolution was introduced and read at a regular meeting of the City Council of the City of Redding on the 16th day of February , 1993, and was duly adopted at said meeting by the following vote: AYES: COUNCIL MEMBERS: ANDERSON, ARNESS, KEHOE AND MOSS NOES: COUNCIL MEMBERS: NONE ABSENT: COUNCIL MEMBERS: DAHL ABSTAIN: COUNCIL MEMBERS: NONE CHARLIE MOSS, Mayor City of Redding A ST: CONNIE STROHMAYER City Clerk FORM PRQVED: ALL A. HAYS, City Attorney 2 • First • . 0 0 interstate Bark ' MERCHANT BANKCARD AGREEMENT GUARANTEE THIS DOCUMENT AFFECTS AND WAIVES IMPORTANT RIGHTS OF THE PERSONS AND ENTITIES SIGNING IT. I/We,the undersigned guarantor(s)("we')acknowledge that First Interstate Bank of California("Bank")has agreed to permit (whether acting on its, their, his or her behalf or on behalf of any estate created by the commencement of a case under Title 11 United States Code or any successor statute(the"Bankruptcy Code"),or by any trustee under the Bankruptcy Code,all such persons hereinafter being referred to as the"Borrower",to enter into and become subject to Bank's Merchant BankCard Agreement ("Agreement'),as well as any modifications or amendments to,extensions and renewals of,or replacements for,the Agreement We also acknowledge that Bank may have examined,among other things,Borrower's creditworthiness and ability to perform and repay its obligations under the Agreement that we will benefit by Bank allowing Borrower to enter into and become subject to the Agreement and that this Merchant BankCard Agreement Guarantee("Guarantee")is delivered to Bank in order to induce it to allow Borrower to enter into and become subject to the Agreement All references to "Documents' in this Guarantee shall mean the Agreement this Guarantee,any security agreement,deed of trust or mortgage securing the Agreement or this Guarantee,any application Borrower completes with respect to the Agreement and any other documents or instruments relating to any such documents signed by Borrower or any guarantor or pledgor,and any modifications,extensions,renewals or replacements of any of them. By signing this Guarantee,we also agree that 1. Changes Do Not Affect Liability.Bank may,without notice to us and in its absolute discretion and without prejudice to it or in any way limiting our liability under this Guarantee:(a)grant extensions of time,renewals or other indulgences and modifications to Borrower or any other party under any of the Documents,(b)change,amend or modify the Documents,(c)authorize the sale,exchange,release or subordination of any security or collateral for the Agreement whether real or personal property,(d)take additional security for the Agreement whether real or personal property,(e) discharge or release any party or parties liable under the Documents,()foreclose or otherwise realize on any security or collateral for the Agreement regardless of the effect upon our subrogation,contribution or reimbursement rights against Borrower or any other guarantor or pledgor,(g)accept or make compositions or other arrangements or file or refrain from filing a claim in any bankruptcy proceeding of Borrower or any other guarantor or pledgor,(h)make other or additional loans to Borrower in such amount and at such times as Bank may determine,()credit payments in such manner and order of priority to principal,interest or other obligations as Bank may determine in its discretion,and(j)otherwise deal with Borrower or any other guarantor or party related to the Agreement or any security or collateral as Bank may determine in its discretion.Without limiting the generality of the foregoing,we hereby waive the rights and benefits under California Civil Code(CC')Section 2819,and agree that by doing so our liability shall continue even if Bank alters any obligations under the Documents in any respect or Bank's remedies or rights against Borrower are in any way impaired or suspended without our consent 2.Guarantee of Payment and Performance.Our liability under this Guarantee is a guarantee of payment and performance and not of collectibility, and is not conditioned or contingent upon the genuineness,validity,regularity or enforceability of any of the Documents,and we hereby waive any and all benefits and defenses under CC Section 2810 and agree that by doing so we are liable even if Borrower had no liability at the Ume of execution of the Agreement or thereafter ceases to be liable.We hereby waive any and all benefits and defenses under CC Section 2809 and agree that by doing so our liability may be larger in amount and more burdensome than that of Borrower.Our liability hereunder shall continue until all sums due under the Documents have been paid in full and shall not be limited or affected in any way by any impairment or any diminution or loss of value of any security or collateral for the Agreement whether caused by hazardous substances or otherwise,Bank's failure to perfect a security interest in it or any disability or other defense of Borrower or any other guarantor or pledgor. 3. Waivers of Certain Rights and Defenses.Except as provided in the next paragraph,we hereby waive any and all benefits and defenses under CC Sections 2845,2849 and 2850,including,without limitation,the right to require Bank to(a)proceed against Borrower or any other guarantor or pledgor, or(b)proceed against or exhaust any security or collateral Bank may hold,or(c)pursue any other right or remedy for our benefit and agree that Bank may proceed against us for the obligations guaranteed herein without taking any action against Borrower or any other guarantor or pledgor and without proceeding against or exhausting any security or collateral Bank holds.We agree that Bank may unqualifiedly exercise in its sole discretion any or all rights and remedies available to it against Borrower or any other guarantor or pledgor without impairing Bank's rights and remedies in enforcing this Guarantee,under which our liabilities shall remain independent and unconditional.We agree that Bank's exercise of certain of such rights or remedies may affect or eliminate our right of subrogation or recovery against Borrower and that we may incur a partially or totally non-reimbursable liability under this Guarantee.Without limiting the generality of the foregoing,we expressly waive any and all benefits and defenses under(i)California Code of Civil Procedure('CCP')Section 580a,which would otherwise limit our liability after a nonjudicial foreclosure sale to the difference between the obligations guaranteed herein and the fair market value of the property or interests sold at such nonjudicial foreclosure sale,(i)CCP Sections 580b and 580d, _ which would otherwise limit Bank's right to recover a deficiency judgment with respect to purchase money obligations and after a nonjudicial foreclosure sale,respectively,and(i)CCP Section 726 which,among other things,would otherwise require Bank to exhaust all of its security before a personal judgment may be obtained for a deficiency. If this Guarantee is secured by real property which we own,Bank and we agree that our waivers pursuant to this Paragraph 3 were meant to apply to the security and collateral provided by Borrower or any other guarantor or pledgor and not to the real property securing this Guarantee.With respect to the real property securing this Guarantee which we own,Bank and we agree that we are entitled to ail of the benefits of CCP Sections 580a,580b, 580d and 726 to the extent they are applicable. 4. Additional Waivers.We hereby waive diligence and all demands,protest presentments and notices of every kind or nature,including notices of protest dishonor,nonpayment acceptance of this Guarantee and the creation,renewal,extension,modification or accrual of any of the obligations we have hereby guaranteed.We further waive the right to plead any and all statutes of limitations as a defense to our liability hereunder or the enforcement of this Guarantee.No failure or delay on Bank's part in exercising any power,right or privilege hereunder shall impair any such power,right or privilege or be construed as a waiver of or an acquiescence therein. 5.Guarantee Made with Full Knowledge.We have had the opportunity to review the matters discussed and contemplated by the Documents, including the remedies Bank may pursue against Borrower in the event of a default under the Documents,the value of the security or collateral for the Agreement,and Borrower's financial condition and ability to perform under the Agreement We further agree to keep ourselves fully informed on all aspects of Borrower's financial condition and the performance of Borrower's obligations to Bank and that Bank has no duty to disclose to us any information pertaining to Borrower or any security or collateral.We agree that our bankruptcy or insolvency and/or our default on any other obligation we owe you or promise we have made,or might in future make,to you may be events of default under the Agreement 6. Subrogation,Reimbursement and Contribution Rights.We hereby waive all benefits and defenses under CC Sections 2847,2848 and 2849 and agree that we shall have no right of subrogation or reimbursement against Borrower,no right of subrogation against any collateral or security provided for in the Documents and no right of contribution against any other guarantor or pledgor unless and until all amounts due under the Documents have been paid in full and Bank has released,transferred or disposed of all of its right title and interest in any collateral or security.To the extent our waiver of these rights of subrogation,reimbursement or contribution as set forth herein are found by a court of competent jurisdiction to be void or voidable for any reason,we agree that our rights of subrogation and reimbursement against Borrower and our right of subrogation against any collateral or security shall be junior and subordinate to Bank's rights against Borrower and to Bank's right,title and interest in such collateral or security,and our right of contribution against any other guarantor or pledgor shall be junior and subordinate to Bank's rights against such other guarantor or pledgor. 7. Guarantee Continues If Payments are Avoided or Recovered from Bank.If all or any portion of the obligations guaranteed hereunder are paid or performed,our obligations hereunder shall continue and remain in full force and effect in the event that all or any part of such payment or performance is avoided or recovered directly or indirectly from Bank as a preference,fraudulent transfer or otherwise,irrespective of(a)any notice of revocation given by us prior to such avoidance or recovery,and(b)payment in full of all obligations due under the Agreement 8. Financial Information.Upon Bank's request we will promptly deliver to Bank complete and current financial statements and tax retums and such other financial information about us as Bank may reasonably request 9.Changes,Waivers,Revocations and Amendments In Writing.No terms or provisions of this Guarantee may be changed,waived,revoked or amended without Bank's prior written consent Should any provision of this Guarantee be determined by a court of competent jurisdiction to be unenforceable,all of the other provisions shall remain effective. 10.Attorneys'Fees.The prevailing party in any dispute resulting in arbitration,litigation or other proceedings between any guarantor hereunder and Bank shall be entitled to its costs and expenses for such proceedings including reasonable attorneys'fees. VBc-1ro5(9190) —1 — 0 F , n 11. Other Guarantees.This Guarantee is in addition to the guarantees of any other guarantors and any and all of our other guarantees of Borrower's indebtedness or liabilities to Bank.This Guarantee shall be fully enforceable as to all of Borrower's obligations guaranteed hereunder,nothwithstanding any differences between the terms hereof and the terms of any of our other guarantees given to Bank This Guarantee shall in no way limit or lessen any other liability,howsoever arising,we may have for the payment of any other indebtedness of Borrower to Bank. 12. Additional Provisions. . If more than one person has signed this Guarantee,it shall be the joint and several obligation of all such persons and we shall hold harmless, defend,protect and indemnity Bank from any actions,causes of action,liabilities,damages,losses and fees(including attorneys'fees)and all other claims of every nature which may arise as a result of any dispute between or among any of us and any other persons or entities. Bank may assign this Guarantee with one or more of the Documents,without in any way affecting our liability under it or them.This Guarantee shall inure to the benefit of Bank and its successors and assigns and shall bind us and our respective heirs,executors,administrators,successors and assigns. • All notices,requests and demands to be made hereunder shall be in writing and shall be delivered by personal service(including service by courier),or by registered or certified United States mail,with return receipt requested,to the address set forth below unless we have previously notified Bank in writing of a change of address. • If Borrower is a partnership or unincorporated association,our liability shall not be affected by changes in the name of the entity or in its membership. • When there is more than one Borrower named herein,any reference to Borrower shall mean any one and all of them and the singular shall include the plural.All obligations of each such Borrower to Bank of whatever nature are hereby guaranteed,including each such Borrower's several as well as joint obligations. • This Guarantee embodies the entire agreement among the parties hereto with respect to the matters herein set forth. 13. Governing Law.THIS GUARANTEE SHALL BE ENFORCED AND INTERPRETED ACCORDING TO THE LAWS OF THE STATE OF CALIFORNIA, IRRESPECTIVE OF ITS CONFLICTS OF LAWS RULES. 1/WE,THE UNDERSIGNED GUARANTOR(S)ACKNOWLEDGE THAT WE WERE AFFORDED THE OPPORTUNITY TO READ THIS DOCUMENT CAREFULLY AND TO REVIEW IT WITH AN ATTORNEY OF OUR CHOICE BEFORE SIGNING IT. WE ACKNOWLEDGE HAVING READ AND UNDERSTOOD THE MEANING AND EFFECT OF THIS DOCUMENT BEFORE SIGNING IT. NOTICE TO COSIGNOR/GUARANTOR (Traduccidn en Inglis Se Requiere Por La Ley) YOU ARE BEING ASKED TO GUARANTEE THIS DEBT. THINK CAREFULLY BEFORE YOU DO. IF THE BORROWER DOES NOT PAY THE DEBT,YOU WILL HAVE TO.BE SURE YOU CAN AFFORD TO PAY IF YOU HAVE TO,AND THAT YOU WANT TO ACCEPT THIS RESPONSIBILITY. YOU MAY HAVE TO PAY UP TO THE FULL AMOUNT OF THE DEBT IF THE BORROWER DOES NOT PAY.YOU MAY ALSO HAVE TO PAY LATE FEES OR COLLECTION COSTS,WHICH INCREASE THIS AMOUNT. THE CREDITOR CAN COLLECT THIS DEBT FROM YOU WITHOUT FIRST TRYING TO COLLECT FROM THE BORROWER.THE CREDITOR CAN USE THE SAME COLLECTION METHODS AGAINST YOU THAT CAN BE USED AGAINST THE BORROWER,SUCH AS SUING YOU,GARNISHING YOUR WAGES,ETC.IF THIS DEBT IS EVER IN DEFAULT,THAT FACT MAY BECOME A PART OF YOUR CREDIT RECORD. THIS NOTICE IS NOT THE CONTRACT THAT MAKES YOU LIABLE FOR THE DEBT. _ AVISO PARA EL FIADOR/GARANTIZOR (Spanish Translation Required by Law) SE LE ESTA PIDIENDO QUE GARANTICE ESTA DEUDA.PItNSELO CON CUIDADO ANTES DE PONERSE DE ACUERDO. SI LA PERSONA QUE HA PEDIDO ESTE PRESTAMO NO PAGA LA DEUDA, USTED TENDRA QUE PAGARLA. ESTE SEGURO DE QUE LISTED PODRA PAGAR SI SEA OBLIGADO A PAGARLA Y DE QUE LISTED DESEA ACEPTAR LA RESPONSABILIDAD. SI LA PERSONA QUE HA PEDIDO EL PRtSTAMO NO PAGA LA DEUDA,ES POSIBLE QUE LISTED TENGA QUE PAGAR LA SUMA TOTAL DE LA DEUDA, MAS LOS CARGOS POR TARDARSE EN EL PAGO 0 EL COSTO DE COBRANZA, LO CUAL AUMENTA EL TOTAL DE ESTA SUMA. EL ACREEDOR(FINANCIERO) PUEDE COBRARLE A USTED SIN,PRIMERAMENTE,TRATAR DE COBRARLE AL DEUDOR. LOS MISMOS METODOS DE COBRANZA QUE PUEDEN USARSE CONTRA EL DEUDOR, PODRAN USARSE CONTRA LISTED, TALES COMO PRESENTAR UNA DEMANDA EN CORTE, QUITAR PARTE DE SU SUELDO, ETC. SI ALGUNA VEZ NO SE CUMPLA CON LA OBLIGACIbN DE PAGAR ESTA DEUDA, SE PUEDE INCLUIR ESA INFORMACON EN LA HISTORIA DE CREDITO DE LISTED. ESTE AVISO NO ES EL CONTRATO MISMO EN QUE SE LE ECHA A LISTED LA RESPONSABILIDAD DE LA DEUDA. Dated this day of —.at California. Guarantor(s): SIGNATURE SIGNATURE ADDRESS ADDRESS SIGNATURE SIGNATURE ADDRESS ADDRESS MBC-5005 t9/90)Back —2—