HomeMy WebLinkAbout1994-205
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RESOLUTION NO.
94 205
RESOLUTION OF THE CITY OF SAN BERNARDINO AWARDING A SCHEDULE
A ADDENDUM TO LEASE PURCHASE AGREEMENT OF ASSOCIATES COMMERCIAL
CORPORATION, FOR THE FINANCING OF SIX (6) EACH, AUTOMATED SIDE
LOADING REFUSE TRUCKS, TO BE UTILIZED BY THE PUBLIC
SERVICES/REFUSE DEPARTMENT IN ACCORDANCE WITH BID SPECIFICATION F-
94-06.
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF
6 SAN BERNARDINO A FOLLOWS:
7 SECTION 1. That Associates Commercial Corporation is the
8 lowest and best responsible bidder for the financing of six (6)
9 each, automated side loading refuse trucks in accordance with Bid
10 Specification F-94-06 for the total amount of $767,360.60 at 5.04%
11 interest payable six (6) months in arrears over five (5) years;
12 pursuant to this determination, the Purchasing Agent is hereby
13 authorized and directed to issue Schedule A addendum to Lease
14 Purchase Agreement of Associated Commercial Corporation for said
15 financing of six (6) each, automated side loading refuse trucks to
16 said lowest and best responsible bidder; such award shall only be
17 effective upon the issuance of a Schedule A Addendum to the Lease
18 Purchase Agreement by the Purchasing Agent; and all other
19 quotations therefor are hereby rejected.
20 SECTION 2. The authorization to execute the above
21 referenced Schedule A Addendum to Master Lease Purchase Contract
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of Associates Commercial Corporation is rescinded if it is not
issued within sixty (60) days of the passage of this resolution.
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07-11-94 -1-
.94- 205
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RESOLUTION OF THE CITY OF SAN BERNARDINO AWARDING A SCHEDULE A
ADDENDUM TO LEASE PURCHASE AGREEMENT OF ASSOCIATES COMMERCIAL
CORPORATION, FOR THE FINANCING OF SIX (6) EACH, AUTOMATED SIDE
LOADING REFUSE TRUCKS, TO BE UTILIZED BY THE PUBLIC
SERVICES/REFUSE DEPARTMENT IN ACCORDANCE WITH BID SPECIFICATION F-
94-06.
I HEREBY CERTIFY that the foregoing resolution was duly
adopted by the Mayor and Common Council of the City of San
Bernardino at a
regular
meeting thereof, held on the
18th
day of
July
, 199-1-, by
the following vote, to wit:
Council Members:
AYES
NAYS
ABSTAIN
ABSENT
NEGRETE x
CURLIN x
HERNANDEZ x
OBERHELMAN x
DEVLIN x
POPE-LUDLAM x
MILLER x
~~
The foregoing resolution is hereby approved this 20th
day of July , 199~
-;;~ ~~
,
Tom Minor, Mayor
City of San Bernardino
Approved as to form
and legal content:
James F. Penman,
:::#0:OY1.
07-f- 4
p~~
-2-
94-204 duplicate original
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EQUIPMENT LEASE-PURCHASE AGREEMENT
lp.ssee: (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 Payments 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
fhRreafter on the subsequent dates set forth in Schedule A. Any
payments received later than len (10) days Irom 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
racoupment for any reason whatsoever including, without limitation,
failure of the Equipmenlto be delivered or installed, any defects,
..alfunctions, 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
...I....Uvering to Lessor a Delivery and Acceptance Certificate (in the form
Nlded by Lessor) upon deiivery of the Equipment.
4. DISCLAIMER OF WARRANTIES. Lessee acknowledges and
agrees Ihat 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 C~roenter Freewav
Irvin~. 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 OF THE 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
OR 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.
TlON. 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 (ii) 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 all legal 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 (ii) that it will not during
the Lease Term give priority in the application of funds to any other
functionally similar equipment or to services performing 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
. 94-2<J4
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
."hich such termination occurs it will not so purchase, lease, rent or
herwise 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
constttute obligations issued on behalf of a state or a political subdivision
thereof, such that any interest derived under this Lease will quality 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
duly 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
iiu:t 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
":'ectly in any trade or business carried on by any person other than
,see; 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 federally 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 (iii) in the event that the purchase
option has not been exercised prior to the Expiralion Date, title will
immediateiy 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 contemplated 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
dl'""lo:es required therefor.
. J. ALTERATIONS. 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's prior
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 shall 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 permined 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 sucl1
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) all 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 less 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 will 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 estale 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 shaH 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. Lessee shall indemnify Lessor against, and
hold Lessor harmless from. any and all claims, aClions 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,
1eration, rejection. or return and the recovery of claims under
.surance policies thereon. The indemnification provided under this
Section shall continue in full force and effect notwithstanding the full
payment 01 all obligations under this Lease or the termination of the
Lease Term for any reason.
17. ASSIGNMENT. Without Lessor's pnorwritten 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
its 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
_dssee 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 term "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: (Hi) 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 fails
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 respecl 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 Delault, 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 aU 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 due .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; (Hi) 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 privilege which may be
available to it under applicable laws of the state where the Equipment
is then located or any other applicable 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 aU covenants
and indemnities under this lease and for all 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."
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 t49(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 this 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 t49 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 sel 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.
24. GOVERNING LAW This Lease shall be construed in accordance
Wlln, ana governea 0,., !lie: la..~ ui Ine ti(a!" v' ~IIC c.'1....,~,..<;;'" ~v'-'o,,'-'
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 th,
",'':; .....'-!....'~I,,'--
altered, or changed except with the wntten consent of Lessee and
Lessor. Any provision of this Lease found to be prohibited by law shall
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.
Z t9 day of Sit:r::rr~1"1 L~" tZ....
195i.f-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
LESSEE: City of San Bernardino, CA
By: :)(
~n~
/
Title: ^
Mayor
LESSOR:
Associates Commercial Corporation
By:
~/~~/
Title:
Edward F. Pletzke, II
Vice President
OPINION OF COUNSEL
With respect to that certain Equipment Lease-Purchase Agreement
("Lease") dated 'l:: . 'ii!:pr LO /9.,. 'I by and between
Lessor and Lessee, I am of the opini6n 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; (iii) 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: )~J2~
Title: ~ .g.."..... 4.,. 5~-~~;- tl~ ~7
Date: ,X .:J v Ji "I.~. /7'i 'I
ATTEST:
Cit~
~
625600 1. 8-90
94-205
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 ,~ 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,:;Or'::", a~ 12... Z I') 1'99' y"
, between Lessee and Associates Commercial Corporation. I '
NAME TITLE SIGNATURE
)( TOM MINOR X MAYOR ~~
. ,
)( DEAN MEECH )( PURCHASING AGENT )C ,f;1 ~~,~
X. BARBARA PACHON X DIRECTOR OF FINANCE ~ ~/66j'~~
IN WITNESS WHEREOF, I have duly executed this Certificate and affixed the seal of Lessee
hereto this ,;t6th day of (" July , 19..2!...
~ I
SEAL
LESSEE:
BY: )C
TITLE: JIC
,
Citv of San Bernardino. CA
aL~ ~LcL-;~
'-
Seer-et-8f1f IClerk
INCU.CER.FRM