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HomeMy WebLinkAbout1994-204 \ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 94-204 RESOLUTION OF THE CITY OF SAN BERNARDINO ACCEPTING LEASE- PURCHASE MASTER AGREEMENT FOR ASSOCIATES COMMERCIAL CORPORATION FOR THE FURNISHING OF LEASE PURCHASE FINANCING. BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. That Equipment Lease-Purchase Master Agreement with Associates Commercial Corporation (the "Agreement"), a copy of which is attached hereto and incorporated herein as Exhibit "A", is approved by the City of San Bernardino for the furnishing of Lease-Purchase Financing; pursuant to this determination, said Master Lease-Purchase Agreememt award shall only be effective upon the execution of an Agreement by the Mayor of the City of San Bernardino. SECTION 2. The City shall not be obligated under the Agreement unless and until the Agreement is fully executed and no oral agreement relating thereto shall be implied or authorized. The authorization to execute the above referenced Agreement is rescinded if the parties fail to execute it within sixty (60) days of the passage of this resolution. SECTION 3. No transactions shall be initiated under the Master Lease contained in the Agreement without the approval of the Mayor and Common Council. SECTION 4. The city shall not be obligated under until a lease-purchase schedule transaction for material, equipment, supplies or contracted services is executed with the vendor under this Agreement. I / / I / I I / I / / / 07-11-94 -1- 94-204 1 2 :I RESOLUTION OF THE CITY OF SAN BERNARDINO ACCEPTING LEASE PURCHASE MASTER CONTRACT FOR ASSOCIATES COMMERCIAL CORPORATION FOR THE FURNISHING OF LEASE PURCHASE FINANCING. SECTION 5. The Purchasing Agent, Director of Finance and 4 the City Attorney are hereby authorized to execute such documents 5 as necessary for the administration of transactions under the 6 Agreement. 7 I HEREBY CERTIFY that the foregoing resolution was duly 8 adopted by the Mayor and Common Council of the City of San 9 Bernardino at a regular 10 18th day of July 11 the following vote, to wit: meeting thereof, held on the 199 4 , by 12 Council Members: 13 14 15 16 17 18 19 20 ABSTAIN ABSENT AYES NAYS 21 22 23 24 25 26 27 28 -~~~ city Clerk The foregoing resolution is hereby approved this 20th day of Ju1v , 199 4 0, --~ 7!~~~ Tom Minor, Mayor city of San Bernardino Approved as to form and legal content: James F. Penman, city Attorney By: ~~1, P Vvv~ 07-W94 -2- 94-204 duplicate original .~ EQUIPMENT LEASE-PURCHASE AGREEMENT see: (Name and Address) ty of San Bernardino 250 W. Cluster Street San Bernardino, CA 92401 Lessor agrees to lease to Lessee and Lessee agrees to lease from Lessor the Equipment described in any Schedule A now or hereafter attached hereto ("Equipment") in accordance with the following terms and conditions of this Equipment Lease-Purchase Agreement ("Lease"). 1. TERM. This Lease will become effective upon the execution hereof by Lessor. The term of this Lease will commence on the date the Equipment is accepted pursuant to Section 3 hereunder and. unless earlier terminated as expressly provided for in this Lease. will continue until the expiration date (the "Expiration Date") set forth in Schedule A attached hereto (the "Lease Term"). 2. RENT. Lessee agrees to pay to Lessor or its assignee the Lease Payments. including the interest portion, equal to the amounts specified in Schedule A. The Lease peyments will be payable without notice or demand at the office of Lessor (or such other place as Lessor or its assignee may from time to time designate in writing), and will commence on the first Lease Payment Date as set forth in Schedule A and thpreafter an the subseQuent dates set forth in Schedule A. Any payments received later than ten (10) days from the due date will bear interest at the highest lawful rate from the due date. Except as specifically provided in Section 6 hereof, the obligation of Lessee to make the Lease Payments hereunder and perform all of its other obligations hereunder will be absolute and unconditional in all events and will not be subject to any setoff, defense, counterclaim, or _,..au~ment for any reason whatsoever including, without limitation, failure of the Equipment to be delivered or installed, any defects, , functions, breakdowns or infirmities in the Equipment or any accident, condemnation or unforeseen circumstances. Lessee reasonably believes that funds can be obtained sufficient to make all Lease Payments during the Lease Term and hereby covenants that it will do all things lawfully within its power to obtain, maintain and properly request and pursue funds from which the Lease Payments may be made, including making provisions for such payments to the extent necessary in each budget submitted for the purpose of obtaining funding, using its bona fide best efforts to have such portion of the budget approved and exhausting all available administrative reviews and appeals in the event such portion of the budget is not approved. It is Lessee's intent to make Lease Payments for the full Lease Term if funds are legally available therefor and in that regard Lessee represents that the use of the Equipment is essential to its proper, efficient and economic operation. Lessor and Lessee understand and intend that the obligation of Lessee to pay Lease Payments hereunder shall constitute a current expense of Lessee and shall not in any way be construed to be a debt of Lessee in contravention of any applicable constitutional or statutory limitation or requirement concerning the creation of indebtedness by Lessee, nor shall anything contained herein constitute a pledge of the general tax revenues, funds or monies of Lessee. 3. DELIVERY AND ACCEPTANCE. Lessee, or if Lessee so requests, Lessor, will cause the Equipment to be delivered to Lessee at the location specified in Schedule A ("Equipment Location'.). Lessee will pay all transportation and other costs, if any, incurred in connection with the delivery and installation of the Equipment Lessee will accept the Equipment as soon as it has been delivered and inspected. Lessee will evidence its acceptance of the Equipment by executing and _iv.ering to Lessor a Delivery and Acceptance Certificate (in the form vlded by Lessor) upon delivery of the Equipment 4. DISCLAIMER OF WARRANTIES. Lessee acknowledges and agrees that the Equipment is of a size, design and capacity selected by Lessee, that Lessor is neither a manufacturer nor a vendor of such equipment, that LESSOR LEASES AND LESSEE TAKES THE EQUIPMENT AND EACH PART THEREOF "AS.IS" AND THAT LESSOR HAS NOT MADE, AND DOES NOT HEREBY MAKE, ANY 625689 Rev. 8-90 Lease No. 15431 Lessor: (Name and Address) Associates Commercial Corporation 300 E. John Caroenter Freewav IrvinR. TX 75062-2726 REPRESENTATION. WARRANTY, OR COVENANT, EXPRESS OR IMPLIED, WITH RESPECT TO THE MERCHANTABILITY CONDITION, QUALITY, DURABILITY, DESIGN, OPERATION: FITNESS FOR USE. OR SUITABILITY OFTHE EQUIPMENT IN ANY RESPECT WHATSOEVER OR IN CONNECTION WITH OR FOR THE PURPOSES AND USES OF LESSEE, OR AS TO THE ABSENCE OF LATENT OR OTHER DEFECTS, WHETHER OR NOT DISCOVERABLE, OR AS TO THE ABSENCE OF ANY INFRINGEMENT OF ANY PATENT, TRADEMARK OR COPYRIGHT OR AS TO ANY OBLIGATION BASED ON STRICT LIABILITY IN TORT DR ANY OTHER REPRESENTATION, WARRANTY, OR COVENANT OF ANY KIND OR CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT THERETO. IT BEING AGREED THAT ALL RISKS INCIDENT THERETO ARE TO BE BORNE BY LESSEE AND LESSOR SHALL NOT BE OBLIGATED OR LIABLE FOR ACTUAL. INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES OF OR TO LESSEE OR ANY OTHER PERSON OR ENTITY ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE EQUIPMENT AND THE MAINTENANCE THEREOF. Lessor hereby assigns to Lessee during the Lease Term, so long as no Event of Default has occurred hereunder and is continuing, all manufacturer's warranties, if any, expressed or implied with respect to the Equipment, and Lessor authorizes Lessee to obtain the customary services furnished in connection with such warranties at Lessee's expense. Lessee's sole remedy for the breach of any such manufacturer's warranty shall be against the manufacturer of the Equipment, and not against Lessor. Lessee expressly acknowledges that Lessor makes, and has made, no representations or warranties whatsoever as to the existence or the availability of such warranties of the manufacturer of the Equipment. 5. RETURN OF EQUIPMENT. Unless Lessee shall have exercised its purchase option as provided in Section 20 hereof, upon the expiration or earlier termination of this Lease pursuant to the terms hereof, Lessee shall, at its sole expense but at Lessor's option, return the Equipment to Lessor to any location in the continental United States designated by Lessor. 6. NON-APPROPRIATION OF FUNDS; NON.SUBSTITU- TlDN. Notwithstanding anything contained in this Lease to the contrary, in the event no funds or insufficient funds are appropriated and budgeted or are otherwise unavailable by any means whatsoever in any fiscal period for Lease Payments due under this Lease, Lessee will immediately notify Lessor or its assignee in writing of such occurrence and this Lease shall terminate on the last day of the fiscal period for which appropriations have been received or made without penalty or expense to Lessee, except as to (i) the portions of Lease Payments herein agreed upon for which funds shall have been appropriated and budgeted or are otherwise available and (il) Lessee's other obligations and liabilities under this Lease relating to, or accruing or arising prior to, such termination. In the event of such termination, Lessee agrees to peaceably surrender possession of the Equipment to Lessor or its assignee on the date of such termination in the manner set forth in Section 5 hereof and Lessor will have aJllegal and equitable rights and remedies to take possession of the Equipment. Notwithstanding the foregoing, Lessee agrees (i) that it will not cancel this Lease and this Lease shall not terminate under the provisions of this Section if any funds are appropriated to it, or by it, for the acquisition, retention or operation of the Equipment or other equipment or services performing functions similar to the functions of the Equipment for the fiscal period in which such termination would have otherwise occurred or for the next succeeding fiscal period, and (i1) that it will not during the Lease Term give priority in the application of funds to any other functionally similar equipment or to services pertorming functions similar to the functions of the Equipment. This section will not be construed so as to permit Lessee to terminate this Lease in order to purchase, lease. rent or otherwise acquire the use of any other equipment or 94-204' services performing functions similar to the functions of the Equipment, and, if this Lease terminates pursuant to this Section, Lessee agrees that during the fiscal period immediately following the fiscal period in .iCh such termination occurs it will not so purchase, lease, rent or erwise acquire the use of any such other equipment or services. 7. REPRESENTATIONS, COVENANTS AND WARRANTIES. Lessee represents. covenants and warrants as of the date hereof and at all times during the Lease Term that: (i) Lessee is a state or a fully constituted political subdivision thereof, or its obligations hereunder constitute obligations issued on behalf of a state or a political subdivision thereof, such that any interest derived under this Lease will qualify for exemption from Federal income taxes under section 103 of the Internal Revenue Code of 1986, as amended (the "Code"), and that it will do or cause to be done all things necessary to preserve and keep in full force and effect (a) its existence and (b) this Lease; (ii) the execution, delivery and performance by the Lessee of this Lease and all documents executed in connection herewith, including, without limitation, Schedule A hereto and the Delivery and Acceptance Certificate referred to in Section 3 hereof (the Lease together with all such documents shall be collectively referred to herein as the "Lease Documents") have been duiy authorized by all necessary action on the part of the Lessee; (iii) the Lease Documents each constitute a legal, valid and binding obligation of the Lessee enforceable in accordance with their respective terms; (iv) no additional governmental orders, permissions, consents, approvals or authorizations are required to be obtained and no registrations or declarations are required to be filed in connection with ii ltt execution and delivery of the Lease Documents; (v) Lessee has sufficient appropriations or other funds available to pay all Lease Payments and other amounts due hereunder for the current fiscal period; (vi) the use of the Equipment by Lessee is essential to and will be limited to the performance by Lessee of one or more governmental functions of Lessee consistent with the permissible scope of Lessee's authority; (vii) no portion of the Equipment will be used directly or ."ectIY in any trade or business carried on by any person other than ee; and (viii) no portion of the Equipment will be used by an organization described in section 501 (c) (3) of the Code and (ix) this Lease does not constitute an arbitrage obligation within the meaning of section 148 of the Code and is not federaliy guaranteed within the meaning of section 149(b) of the Code. Lessee shall deliver to Lessor an opinion of Lessee's counsel in form and substance as set forth herein or as otherwise acceptable to Lessor. In the event that a question arises as to Lessee's qualification as a political subdivision, Lessee agrees to execute a power of attorney authorizing Lessor to make application to the Internal Revenue Service for a letter ruling with respect to the issue, 8. TITLE TO EQUIPMENT. Upon acceptance of the Equipment by Lessee hereunder, title to the Equipment will vest in Lessee subject to Lessor's rights under this Lease; provided, however, that (i) in the event of termination of this Lease pursuant to Section 6 hereof, (ii) upon the occurrence of an Event of Default hereunder, and as long as such Event of Default is continuing, or (Hi) in the event that the purchase option has not been exercised prior to the Expiration Date, title will immediately vest in Lessor or its assignee without any action by Lessee and Lessee shall immediately surrender possession of the Equipment to Lessor or its assignee in the manner set forth in Section 5 hereof. 9. USE; REPAIRS. Lessee will use the Equipment in a careful manner for the use contempiated by the manufacturer of the Equipment. Lessee shall comply with all laws, ordinances, insurance policies and regulations relating to the possession, use, operation or maintenance of the Equipment. Lessee. at its expense, will keep the Equipment in good working order and repair and furnish all parts. mechanisms and _es required therefor. .. AL TERATJONS. Lessee will not make any alterations, additions or improvements to the Equipment without Lessor's prior written consent unless such alterations, additions or improvements may be readily removed without damage to the Equipment. 11. LOCATION; INSPECTION. The Equipment will not be removed from or, if the Equipment consists of rolling stock, its permanent base will not be changed from the Equipment Location without Lessor'sprior written consent which will not be unreasonably withheld. Lessor will be entitled to enter upon the Equipment Location or elsewhere during reasonable business hours to inspect the Equipment or observe its use and operation. 12. LIENS AND TAXES. Lessee shall keep the Equipment free and clear of all levies, liens and encumbrances except those created under this Lease. Lessee shali pay, when due, all charges and taxes (local, state and federal) which may now or hereafter be imposed upon the ownership, leasing, rental, sale, purchase, possession or use of the Equipment, excluding however, all taxes on or measured by Lessor's income. If Lessee fails to pay said charges, or taxes when due, Lessor may, but need not, pay said charges or taxes and, in such event, Lessee shall reimburse Lessor therefor on demand, with interest at the maximum rate permitted by law from the date of such payment by Lessor to the date of reimbursement by Lessee. 13. RISK OF LOSS; DAMAGE; DESTRUCTION. Lessee assumes all risk of loss of or damage to the Equipment from any cause whatsoever, and no such loss of or damage to the Equipment nor defect therein nor unfitness or obsolescence thereof shall relieve Lessee of the obligation to make Lease Payments or to perform any other obligation under this Lease. In the event of damage to any item of Equipment, Lessee will immediately place the same in good repair with the proceeds of any insurance recovery applied to the cost of sucn repair. If Lessor determines that any item of Equipment is lost, stolen, destroyed or damaged beyond repair, Lessee, at the option of Lessor, will either (a) replace the same with like equipment in good repair, or (b) on the next Lease Payment Date, pay Lessor: (i) ali amounts then owed by Lessee to Lessor under this Lease, including the Lease Payment due on such date, and (ii) an amount equal to the applicable Concluding Payment set forth in Schedule A opposite such Lease Payment Date. In the event that Lessee is obligated to make such payment pursuant to subparagraph (b) above with respect to iess than all of the Equipment, Lessor will provide Lessee with the pro rata amount of the Lease Payment and the Concluding Payment to be made by Lessee with respect to the Equipment which has suffered the event of loss. 14. PERSONAL PROPERTY. The Equipment is and will remain personal property and wili not be deemed to be affixed or attached to real estate or any building thereon. If requested by Lessor, Lessee will, at Lessee's expense, furnish a waiver of any interest in the Equipment from any party having an interest in any such real estate or building, 15. INSURANCE. Lessee, will, at its expense, maintain at all times during the Lease Term. fire and extended coverage, public liability and property damage insurance with respect to the Equipment in such amounts, covering such risks, and with such insurers as shall be satisfactory to Lessor, or, with Lessor's prior written consent, may self- insure against any or all such risks. In no event will the insurance limits be less than the amount of the then applicable Concluding Payment with respect to such Equipment. Each insurance policy will name Lessee as an insured and Lessor or its assigns as an additional insured, and will contain a clause requiring the insurer to give Lessor or its assigns at least thirty (30) days prior written notice of any alteration in the terms of such policy or the cancellation thereof. The proceeds of any such policies will be payable to Lessee and Lessor or its assigns as their interests may appear. Upon acceptance of the Equipment and upon each insurance renewal date, Lessee will deliver to Lessor a certificate evidencing such insurance. In the event that Lessee has been permitted to self-insure, Lessee will furnish Lessor with a letter or certificate to such effect. In the event of any loss, damage, injury or accident involving the Equipment, Lessee will promptly provide Lessor with written notice thereof and make available to Lessor all information and documentation relating thereto and shall permit Lessor to participate and cooperate with Lessee in making any claim for insurance in respect thereof. 94-204 original 16:INDEMNIFICATION. Less..e shall indemnify Lessor against, and hold Lessor harmless from, any and all claims. actions proceedings, expenses, damages or liabilites. including attorney's fees and court costs, arising in connection with the Equipment, including, but not limited to, its selection, purchase, delivery, installation, possession, use, .aratian. rejection, or return and the recovery of claims under urance policies thereon. The indemnification provided under this Section shall continue in full force and effect notwithstanding the full payment of all obligations under this Lease or the termination of the Lease T arm for any reason. 17. ASSIGNMENT. Without Lessor's prior written consent, Lessee will not either (i) assign, transfer, pledge. hypothecate, grant any security interest in or otherwise dispose of this Lease or the Equipment or any interest in this Lease or the Equipment or (ii) sublet or lend the Equipment or permit it to be used by anyone other than Lessee or Lessee's employees. Lessor may assign its rights, title and interest in and to the Lease Documents, the Equipment and/or grant or assign a security interest in this Lease and the Equipment, in whole or in part, and Lessee's rights will be subordinated thereto. Any such assignees shall have all of the rights of Lessor under this Lease. Subject to the foregoing, this Lease inures to the benefit of and is binding upon the successors and assigns of the parties hereto. Lessee covenants and agrees not to assert against the assignee any claims or defenses by way of abatement setoff, counterclaim, recoupment or the like which Lessee may have against Lessor. Upon assignment of Lessor's interests herein, Lessor will cause written notice of such assignment to be sent to Lessee which will be sufficient if it discloses the name of the assignee and address to which further payments hereunder should be made. No further action will be required by Lessor or by Lessee to evidence the assignment, but Lessee will acknowledge such assignments in writing if so requested. Lessee shall retain all notices of assignment and maintain a book-entry record (as referred to in Section 21) which identifies each owner of Lessor's interest in the Lease. Upon Lessee's receipt of written notice of Lessor's assignment of all or any part of 41. s interest in the Lease, Lessee agrees to attorn to and recognize any. h assignee as the owner of Lessor's interest in this Lease, and ssee shall thereafter make such payments, including without limitation such Lease Payments, as are indicated in the notice of assignment, to such assignee. 18. EVENT OF DEFAULT. The lerm "Event of Default," as used herein. means the occurrence of anyone or more of the following events: (i) Lessee fails to make any Lease Payment (or any other payment) as it becomes due in accordance with the terms of this Lease, and any such failure continues for ten (10) days after the due date thereof; (ii) Lessee fails to perform or observe any other covenant, condition. or agreement to be performed or observed by it hereunder and such failure is not cured within twenty (20) days after written notice thereof by Lessor; (iii) the discovery by Lessor that any statement, representation, or warranty made by Lessee in this Lease or in any writing ever delivered by Lessee pursuant hereto or in connection herewith was false, misleading, or erroneous in any material respect; (iv) Lessee becomes insolvent, or is unable to pay its debts as they become due, or makes an assignment for the benefit of creditors, applies or consents to the appointment of a receiver, trustee, conservator or liquidator of Lessee or of any of its assets, or a petition for relief is filed by Lessee under any bankruptcy, insolvency, reorganization or similar laws, or a petition in, or a proceeding under, any bankruptcy, insolvency, reorganization or similar laws is filed or instituted against Lessee and is not dismissed or fully stayed within twenty (20) days after the filing or institution thereof; (v) Lessee faiis to make any payment when due or fails to perform or observe any covenant, condition, or agreement to be performed by it under any other agreement or obligation with Lessor or an affiliate of Lessor and any applicable grace period or notice with respect thereto shall have elapsed .been given; or (vi) an attachment, levy or execution is threatened evied upon or against the Equipment. 19. REMEDIES. Upon the occurrence of an Event of Default, and as long as such Event of Default is continuing, Lessor may, at its option, exercise anyone or more of the following remedies: (i) by written notice to Lessee, declare an amount equal to all amounts then due under the Lease, and aU remaining lease Payments due during the fiscal year of Lessee in which the default occurs to be immediately due and payable, whereupon the same shall become immediately doe .and payable; (ii) by written notice to Lessee, request Lessee to (and Lessee agrees that it will), at Lessee's expense, promptly return the Equipment to Lessor in the manner set forth in Section 5 hereof, or Lessor, at its option, may enter upon the premises where the Equipment is located and take immediate possession of and remove the same; (iii) sell or lease the Equipment or sublease it for the account of Lessee, holding Lessee liable for all Lease Payments and other payments due to the effective date of such selling, leasing or subleasing and for the difference between the purchase price, rental and other amounts paid by the purchaser, lessee or sublessee pursuant to such sale, lease or sublease and the amounts otherwise payable by Lessee hereunder; and (iv) exercise any other right, remedy or priviiege which may be available to it under applicable laws of the state where the Equipment is then located or any other appiicable law or proceed by appropriate court action to enforce the terms of this Lease or to recover damages for the breach of this Lease or to rescind this Lease as to any or all of the Equipment. In addition, Lessee will remain liable for all covenants and indemnities under this Lease and for aU legal fees and other costs and expenses, including court costs, incurred by Lessor with respect to the enforcement of any of the remedies listed above or any other remedy available to Lessor. 20. PURCHASE OPTION. Upon thirty (30) days prior written notice from Lessee, and provided that there is no Event of Default, or an event which with notice or lapse of time, or both, could become an Event of Default, then existing, Lessee will have the right to purchase the Equipment on any Lease Payment date set forth in Schedule A hereto by paying to Lessor, on such date, the Lease Payment then due together with the Concluding Payment amount set forth in Schedule A opposite such date. Upon satisfaction by Lessee of such purchase conditions, Lessor will transfer any and all of its right, title and interest in the Equipment to Lessee AS IS, WITHOUT WARRANTY, EXPRESS OR IMPLIED, except Lessor will warrant that the Equipment is free and clear of any liens created by Lessor. 21. TAX ASSUMPTION; COVENANTS. The parties assume that Lessor can exclude from Federal gross income the interest portion of each Lease Payment set forth in Schedule A under the column captioned "Interest Portion. It Lessee covenants that it will (i) register this Lease and transfers thereof in accordance with section 149(a) of the Code and the regulations thereunder, (ii) timely file a statement with respect to this Lease in the required form in accordance with section 149(e) of the Code, (iii) not permit the property financed by this Lease to be directly or indirectly used for a private business use within the meaning of section 141 of the Code, (iv) not take any action which results, directly or indirectly, in the interest portion of any Lease Payment not being excludable from Federal gross income pursuant to section 103 of the Code and will take any reasonable action necessary to prevent such result, and (v) not take any action which results in th~s Lease becoming, and will take any reasonable action to prevent this Lease from becoming (a) an arbitrage obligation within the meaning of section 148 of the Code or (b) federally guaranteed within the meaning of section 149 of the Code. Notwithstanding the earlier termination or expiration of this Lease, the obligations provided for in this Section 21 shall survive such earlier termination or expiration. 22. NOTICES. All notices to be given under this Lease shall be made in writing and mailed by certified mail, return receipt requested, to the other party at its address set forth herein or at such address as the party may provide in writing from time to time. Any such notice shall be deemed to have been received five days subsequent to mailing. 23. SECTION HEADINGS. All section headings contained herein are for the convenience of reference only and are not intended to define or limit the scope of any provision of this Lease. 9'4 2 0 4 24. GOVERNING LAW, This Lease shall be construed in accordance wltn, ana governeo OJ' lik Ict\.'J viti).,; Siall;: ;), :"C t:.'1""r".O<::I" '-v....cw'_ . 25. DELIVERY OF RELATED DOCUMENTS. Lessee will execute or provide, as requested by Lessor, such other documents and information as are reasonably necessary with respect to the transaction contemplated by this Lease. 26. ENTIRE AGREEMENT; WAIVER. The Lease Documents constitute the entire agreement between the parties with respect to thl ,. ,'~ .....'-j.-"e"'. IC-. altered, or changed except with the written consent of Lessee and Lessor. Any provision of this Lease found to be prohibited by law shaH be ineffective to the extent of such prohibition without invalidating the remainder of this Lease. The waiver by Lessor of any breach by Lessee of any term, covenant or condition hereof shall not operate as a waiver of any subsequent breach thereof. :2t:J day of Ye:PTFf"7L~'F1'L 19~ IN WITNESS WHEREOF, the parties have executed this Agreement as of the LESSEE: City of San Bernardino, CA By: X ~n~ Title: ^ Mayor Associates Commercial Corporation LESSOR: By: ~/~~/ Title: Edward F. Pletzke, II Vice President OPINION OF COUNSEL With respect to that certain Equipment Lease-Purchase Agreement ("Lease") dated >I:: . 'l/1P'1" z.~ / 94''1 by and between Lessor and Lessee, I am of the opinl n that: (I) Lessee IS a tax exempt entity under Section 103 of the Internal Revenue Code of 1986, as amended; (ii) the execution, delivery and performance by Lessee of the Lease have been duly authorized by all necessary action on the part of Lessee; (ill) the Lease constitutes a legal, valid and binding obligation of Lessee enforceable in accordance with its terms and all . statements contained in the Lease and all related instruments are true; (iv) there are no suits, proceedings or investigations pending or, to my knowledge, threatened against or affecting Lessee, at law or in equity, or before or by any governmental or administrative agency or instrumentality which, if adversely determined, would have a material adverse effect on the transaction contemplated in the Lease or the ability of Lessee to perform its obligations under the Lease and Lessee is not in default under any material obligation for the payment of borrowed money, for the deferred purchase price of property or for the payment of any rent under any lease agreement which either individually or in the aggregate would have the same such effect; and (v) all required public bidding procedures regarding the award of the Lease have been followed by Lessee and no governmental orders, permissions, consents, approvals or authorizations are required to be obtained and no registrations or declarations are required to be filed in connection with the execution and delivery of the Lease. Counsel for Lessee; By: )~Jd~ Title: X ,2.".,... 4.ld~-h~r ~ Date; :x ::J,.;J,/ .,J.~, (7"'/ ~~" / ~ . 6256,:19 "'. 8-90 . . , <...~, ~: - 94 20 4 INCUMBENCY CERTIFICATE . I do hereby certify that I am the duly elected or appointed and acting Secretary/Clerk of X The City of San Bernardino ("Lessee"), a body corporate and politic duly organized and existing 'under the laws of the State of ,l(" Calif. that I have custody of the records of Lessee, and that, as of the date hereof, the individuals named below are the duly elected or appointed officers of Lessee holding the offices set forth opposite their respective names. I further certify that (i) the signatures set forth opposite their respective names and titles are their true and authentic signatures, and (ii) such officers have the authority on behalf of Lessee to enter into that certain Equipment Lease-Purchase Agreement dated or to be dated 5~Pre'" r-lG IZ. J! rJ r<19 y' , between Lessee and Associates Commercial Corporation. I ' NAME TITLE SIGNATURE )( TOM MINOR .lc: MAYOR v;;; ~ , , )( DEAN MEECH X PURCHASING AGENT ,X /~t/4 eX BARBARA PACHON X DIRECTOR OF FINANCE ~ ~~~66/~~ IN WITNESS WHEREOF, I have duly executed this Certificate and affixed the seal of Lessee hereto this ,;;t6th day of (" July , 192i.... ~ I SEAL LESSEE: Citv of San Bernardino. CA a~-1CLt.-.~ '- BY: )C TITLE: >C , Seer-etilfV IClerk .NCU-CER.FRM