HomeMy WebLinkAbout1990-318
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RESOLUTION NO. 'lb-;3/f
RESOLUTION OF THE CITY OF SAN BERNARDINO ACCEPTING LEASE
PURCHASE MASTER CONTRACT FOR CITICORP NORTH AMERICA 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 Lease Purchase Master Contract from
Citicorp North America, a copy of which is attached hereto and
incorporated herein as Exhibit "A", is accepted by the City of
San Bernardino for furnishing of Lease Purchase Financing;
pursuant to this determination, the Purchasing Agent is hereby
authorized and directed to issue a purchase order for said Lease
Purchase Financing to said vendor; the Master Lease Purchase
Contract award shall only be effective upon the execution of an
Agreement by the Mayor of the City of San Bernardino and the
tender of a Purchase Order by the Purchasing Agent.
SECTION 2.
This Agreement shall not take effect until
fully signed and executed by both parties. The City shall not be
obligated hereunder 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referenced agreement is rescinded if the parties to the
agreement 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 this agreement without the approval of
the Mayor and Common Council.
SECTION 4. The City shall not be obligated hereunder until
a lease purchase schedule transaction for material, equipment,
DR:ms\citicorp.res
July 5, 1990
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RESOLUTION OF THE CITY OF SAN BERNARDINO ACCEPTING LEASE PURCHASE
MASTER CONTRACT FOR CITICORP NORTH AMERICA FOR THE FURNISHING OF
LEASE PURCHASE FINANCING.
supplies or contracted services is executed with the vendor under
this contract.
SECTION 5.
The Purchasing Agent, Director of Finance and
the City Attorney are hereby authorized to execute such documents
as are necessary for the administration of this transaction.
I HEREBY CERTIFY that the foregoing resolution was duly
adopted by the Mayor and Common Council of the City of San
Bernardino. at a
/J
day of ~. it
Council MeJRl:jers:
/l~~t) meeting thereof, held on the /~,(
, 1990, by the following vote, to wit:
AYES
NAYS
ABSTAIN
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V'
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ESTRADA
REILLY
FLORES
MAUDSLEY
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V
V
MINOR
POPE-LUDLAM
MILLER
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/ / / / / / / / / / / / /
JJauftLV!!h~ bl JP,a,U4'>p~
City Clerk t7 42~~
/ / / / / / / / /
24 I / / / / / / / / / / / / / / / / / / / / / /
25 / / / / / / / / / / / / / / / / / / / / / /
26 / / / / / / / / / / / / / / / / / / / / / /
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DR: ms\citicorp. res
July 5, 1990
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RESOLUTION OF THE CITY OF SAN BERNARDINO ACCEPTING LEASE PURCHASE
MASTER CONTRACT FOR CITICORP NORTH AMERICA FOR THE FURNISHING OF
LEASE PURCHASE FINANCING.
.Th8', foregoing resolution is hereby approved this /7,iL day
of 1\~1!/ , 1990.
t
/
v
Approved as to
form and legal content:
JAMES F. PENMAN,
City Attorney
BY;1~~?
(7.
I t>7/'~"1-.
DR: ms\citicorp. res
July 5, 1990
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/ L
CITICORP08
MASTER STATE AND MUNICIPAL
LEAS8PURCHASEAG~ENT
This Master Lease/Purchase ~nt (the "Master Lease") Is made and entered Into on this, the deyof ,
.;-,;....-
19l1_, by and between CllcGfP North America, Inc. , wllh oHlces at 801 Midland Avenue, Rye, New York 1 0580,(hereln called
the "Lessor"), and City of San Bernardino, a municipal corporation, wllh "s principal addresl at 300 North "0" Stree~ San Bernardino,
CA 92418 (herein called the "Lessee"), wherein It is agreed as follows:
1. LEASE OF EQUIPMENT. Lessee hereby requests Lessor to acquire the equipment delcrlbed In Exhlbl A to the Initial Leeslng
Schedule, which Is allached hereto and mede a part hereof, and In any exhibits A (each an "Equipment Description"), substantially
similar In form to said Exhlbh A, to any subsequent leasing schedules ("Leasing Schedules") executed pursuant to this Maeter Leale.
Each Leasing Schedule shall be In substantially the same form as the Inhlal Laaslng Schedule and each luch Leeslng Schedule
shaH at the time or execution thereof be aUached as an exhlbll hereto and made e part hereof. Subject to the terms and condhtons
hereof, Lessor agrees to lease to Lessee and Lessee agrees to lease from Lessor the equipment described In any equipment Description
wllh all replacement parts, repairs, additions and accessories Incorporated therein or affixed therato (herein coflectlvely caned the
"Equipment").
2. DalVERY AND ACCEPTANCE. At the request of Lessee, Lessor agrees to order the Equipment from the supplier of such Equipment,
but shall not be liable lor specific perlormance of this Master Lease or for damages II lor any reason the IUppller, delayl or .....
to 1111 the order. Lessee shall cause the Equipment to be delivered at the locations specKled In lhe respective EcauIIlme,' nt Dnc,.aon
(the "Equipment Location"). Lessee shall pay all transportation and other costs, II any, Incurred In connection WiffIle deIlvery enct
Installation of the Equipment. Any delay In such delivery shall not aHeet the validity of this Master LeaH. ........ .... .....
Equipment as soon as II has been delivered and Is operational, or as soon as any manulacturer or vendor prellCClllt8nce ...' /iIilfOd
has expired. Lessee shall have no more than thlrly (30) days from the date 01 delivery 01 the Equipment to accepllUC~
In the event the Equipment Is not accepted by Lessee wllhln thirty (30) days Irom the date 01 hI delivery, Lessor, at 'I eofa
option, shall have the right to lermlnate the Leasing Schedule related thereto. Lessee shall avldence Its acceptance of the
by execullng and delivering to Lessor a delivery and acceptance certificate in the lorm 01 Exhibit B to the Inltlal Leasing . haduIe
aUached hereto and made a part hereol (the "Acceptance Certificate"). Lessee hereby authorizes the Lessor to add to the ~
Leasing Schedule and to any other description of the Equipment the serial number of each hem 01 Equipment when 8Yaltable.
3. TERM. This Master Lease shall become eHectlve upon the execution hereof by Lessee and Lessor. The Inhlal term of any Leasing
Schedule shall commence on the date Lessee executes the Acceptance Certificate (the "Start Date") and shall continue through
the end 01 Lessee's fiscal year containing the Start Date and, unless earlier terminated as expressly provided lor In Section 8 hereol,
shall be automatically renewed on a year-to-year basis (the "Lease Term").
4. RENT. Lessee agrees to pay to Lessor or any assignee the aggregate of all rental payments as shall have been aet lorth In
schedules (each a "Rental Payment Schedule", to be in substantially the lorm 01 the Rental Payment and Amortization Schedule
auached as Exhlbll C to the tnltlal Leasing Schedule) In respect 01 aach Leaalng Schedule, and on each date lal lorth In a Rantal
Payment Schedute shall make paymant (a "Rantal Payment") In such amounts as Is set lorth In the Rental Payment Schedules.
A portion 01 each Rental Payment Is paid as and represents the payment 01 Interest In such amount as Is Indicated for such payment
date on all Rental Payment Schedules. The Rental Payments shall be payable, whhout notice or demand, at the ofIIce 01 Lessor
(or such other place as Lessor or any assignee may designate In writing, Irom time to time) and ahall commence on the Start Date
or as otherwise set lorth In the Rental Payment SChadules, and ahall ba due and payable on the aame day 01 each conaecutlve
month or quarter or semiannual or annual period thereafter (unless otherwise designated on the Rental Payment Schedules) during
the Lease Term. Any notice, Invoicing, purchase orders, quotations or other forma or procedures required by Lessee aa a condlllon
precedent to payment shall be fully explained and provided to Lessor or any assignee sulllclently In advance of the payment date
for the completion thereol by Lessor or any asslgnae prior to such payment due date. EXCEPT AS SPECIFICALLY PROVIDED IN
SECTION 8 HEREOF, THE RENTAL PAYMENTS SHALL BE ABSOLUTE AND UNCONDmONAL IN ALL EVENTS AND WILL NOT
BE SUBJECT TO ANY SETOFF, DEFENSE, COUNTERCLAIM, ABATEMENT OR RECOUPMENT FOR ANY REASON WHATSOEVER.
5. AUTHORITY AND AUTHORIZATION. Lessee represents, warrants and covenants that (a) h shall do or cause to be done all things
necessary to preserve and keep In full force and effect (I) lis existence, and (III this Master Lease and all Leasing Schedules; (b) It
has complied with all bidding and budgeting requirements where necessary and by due notification hes presented this Master Lease
for approval and adoption as a valid obligation on liS part and that all requirements have been met and procedures have been followed
to ensure the enforceability of this Master Lease and the Initial Leasing Schedule; (c) h has sufficient approprlatlona or o1her lunds available
to pay all amounts due hereunder for the current fiscal period; (dl no event has occurred and no condhlon exists which, upon the execution
of this Master Lease or w"h notice or the passage of time or both, would consthute a defautt under any deb~ revenue or purchase
obligation which It has Issued or to which It Is a party (the "Obligation") nor has It been In default under any Obligation at any time
during the past five (5) years; and (e) no lease, rental agreement or contract for purchase, to which Lessee has been a party, at any
lime during the past five (5) years, has been terminated by Lessee as a result of Insufficient funds being appropriated In any fiscal
period.
8. LESSEE CERTIFICATION. Lessee warrants and covenants and shall certlty prlor to the effective date 01 any subseQuent Leasing
Schedule .that (I) h is a state, or a political subdivision thereof, wllhln the meaning 01 Section 103 of the Internal Revenue Code of 1986,
as amended Ithe "Code"', and the related regutatlons and rulings thereundar, (II) Lessee's obligation under this Master Lease constitutes
In entoreeable obllgallon Issued by or on be"alf 01 a Itale, or pol~ie.1 lu~ivilion I".,eol IUC" t"et any interest Inc d' d
th .. d d l . I d' . . ' .. ome enved un er
IS M~~ O. Lease an ue essor or ItS assignee, Inc u lng, but not limited 10, those amounts deSIgnated as interest in the Rent I P t
Schedules shall not be Includable '" the gmss Income of lessor, Its assig.nee or any participants wdh such for the purpose; of ~~~~I
.income taxation; (iiil this Master lease represents a valid deferred 'payment obligation 01 lessee for the amount herein set forth. (ivlthis
Master lease creates, and each subsequent leasing Schedule when attached hereto will create, a valid security interest in the Equipment
(vi Lessee has the legal capacity to enter into this Master Lease and is not in contravention of any stale, county, dlslrict, city or town
staMe, rule, regulation or other governmental provision; (vi) during the Lease Term, the Equipment shall not be used in a trade or business
01 any other person or entity; {viii L.eaaee shall, wrth respect to the indial Leasing Schedule and any subsequent Leasing Schedule, complete
and file on a timely basis, Inle~'Revenue Service lorm 80389 or 8038gc, as appropriate, in the manner set forth in Section 149(el of
the Code; and (viii) Lessee's pa~ under the Master Lease are not guaranteed (in whole or in pert) by the Unded States or any agency
or instrumentality thereof.": :".
7. APPROPRIATIONS AND EsSlNTtAL USE. Lessee shall not enter into any Leasing Schedule unless rt reasonably believes that after
laking into account such Leasing Schedule, funds shall be obtainable in an amount sufficient to make all Rental Payments during the
Lease Term. Lessee hereby covenants that It shall do all things lawfully within rts power to obtain funds from which the Rental 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 rts 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 the Rental Payments for the full Lease
Term rt funds are legally available therefor and in Ihat regard Lessee represents that (a) the use 01 the Equipment is essential to rts proper,
efficient and economic functioning or to the services that it prOVides to its crtizens; (b) Lessee has an immediale need for and expects
to make immediate use of substantially all of tho Equipment which need is not temporary or expected to diminish in the foreseeable future;
and (c) the Equipment shall be used by the lessee only for the purpose of performing one or more 01 rts govemmental or proprietary
functions consistent wrth the permissible scope of its authority.
8. NONAPPROPRIA TION OF FUNDS. In Ihe evenl no funds or insufficient lunds are appropriated and budgeted for the acquisition, retention t1
or operation of the Equipment and funds are otherwise unavailable, by any means whatsoever, in any fiscal perfod in which the Rental ;
Payments for the Equipment are due under lhis Master Lease, then Lessee shall, not less than sixty (601 days prior to the end of such
applicable fiscal period, in writing, notify Lessor and any assignee of such occurrence. This Master Lease shall thereafter terminate and
be rendered null and void on the last day of the fiscal period for which appropriations were made, without penlllly, liability or expense
to the Lessee of any kind, except as to (i) the portions of the Rental Payments herein agreed upon for which funds shall have been lIJlPI'opriated
and budgeted or are otherwise available and (ii) Lessee's olher obligations and liabilities uncler this Master Lease relating to, accruing
or arising prior to such termination. In the event of such termination, Lessee agrees to peaceably lurrender poseaseion of the Equipment
to Lessor or its assignee on the date of such termination, packed for shipment in accordance with manufacturer's specificatio~~oreligible
for manufacturer's maintenance, freight prepaid and insured to any location in the continental Unrted Slates designated by , all at
Lessee's expense. Lessor or its assignee may exerCise all available legal and equotable rights and remedies in retaking pleseSSIon of
the Equipment .
Notwithstanding the foregoing, Lessee agrees (althat if this Master Lease is terminated in accordance with the preceding paragraph,
Lessee shall not purchase, lease or rent equipment which performs the same functions as, or functions taking the place 01, those performed
by the Equipment, and shall not permit such functions to be performed by rts own employees or by any agency or entity affiliated with
or hired by Lessee, for the balance of the fiscal period in which such termination occurs or the next succeeding fiscal period thereafter,
and (b) that rt shall not during the Lease Term, give priority in the application of funds to any other functionally similar equipment
9. LIMITATION ON WARRANTIES. LESSEE HAS OR SHALL HAVE SELECTED BOTH THE EQUIPMENT AND THE VENDOR(S) FROM
WHOM LESSOR IS TO PURCHASE THE EQUIPMENT. LESSEE ACKNOWLEDGES AND AGREES THAT THE EQUIPMENT IS OF A SIZE,
DESIGN AND CAPACIlY SELECTED BY LESSEE, THAT LESSOR IS NOT A MANUFACTURER, VENDOR OR DISTRIBUTOR OF SUCH
EQUIPMENT, AND THAT LESSOR HAS NOT MADE, AND DOES NOT HEREBY MAKE, ANY REPRESENTATION, WARRANTY OR COVENANT,
EXPRESS OR IMPLIED, WITH RESPECT TO THE MERCHANTABILIlY, CONDmON, QUALIlY, DURABIlIlY, DESIGN, OPERATION,
FITNESS FOR USE, OR SUITABILIlY OF THE EQUIPMENT IN ANY RESPECT WHATSOEVER OR IN CONNECTION WITH OR FOR
THE PURPOSES AND USES OF LESSEE, OR ANY OTHER REPRESENTATION, WARRANTY OR COVENANT OF ANY KIND OR CHARACTER,
EXPRESS OR IMPLIED, WITH RESPECT THERETO AND LESSOR SHALL NOT BE OBLIGATED OR LIABLE FOR ACTUAL, INCIDENTAL.
CONSEQUENTIAL OR OTHER DAMAGES OF OR TO LESSEE OR ANY OTHER PERSON OR ENTIlY ARISING OUT OF OR IN CONNECTION
WITH THE EQUIPMENT, INCLUDING BUT NOT LIMITED TO THE USE, PERFORMANCE OR MAINTENANCE OF THE EQUIPMENT.
Lessor hereby assigns to Lessee during the lease Term, to the extent permitted by law, all manufacturer's warranties, rt any, that ~ may
have, express or implied, with respect to the Equipment and Lessor authorizes Lessee to obtain the customary services fumished in connection
with such warranties at Lessee's expense. Lessor authorizes Lessee, to the extent permitted by law, to enforce in rts own name any warranty,
representation or other claim enforceable against the manufacturer. Lessor assumes no ,esponsibility for shipment delivery, installation or
maintenance, and all ciaims of Lessee with respect thereto, whether for deiay, damage or otherwise, shall be made against the manufacturer.
Lessor, at rts option, may provide in rts purchase order that the manufacturer agrees that any of such claims may be made by Lessee directiy
against the manufacturer. The obligation of Lessee to pay the Rental Payments as defined in Section 4 shall not be abated, impaired or reduced
by reason of any claims of Lessee with respect to the Equipment including but not limited to its condition, quality, workmanship, delivery,
shipment, installation, defects or otherwise.
10. TITLE; SECURIlY AGREEMENT. Hie to the Equipment is deemed to be in Lessee so long as no Event of Defau. pursuant to Section
t 9 below has occurred and! or this Master Lease has not been terminated pursuant to the provisions of Section 8 above. At the instant this
Master Lease is terminated in accordance wrth Section 8 above or upon the occurrence of an Event of Default by Lessee pursuant to Section
19 below, title shall revert to Lessor free of any right title or interest 01 Lessee unless Lessor elects otherwise. In orcler to secure all of rts
obligations hereunder, Lessee hereby (a) grants to lessor a first and prior security interest in any and all rights, trtle and interest of Lessee
in this Master Lease, all Leasing Schedules, the Equipment and in all additions, attachments, accessions, accessories, replacements, improvements
and substrtutions thereto, now or hereafter acquired, together with all rents, issues, income, profits and proceeds thereof, including insurance
proceeds; Ibl agrees that this Master Lease including all Leasing Schedules may be filed as a financing statement evidencing such security
interest and (cl agrees to execute and deliver all finanCing statements, certificates of title and other Instruments necessary or appropriate to
evidence and perfect such security interest lessee further agrees that the Unrtorm Commercl8l Code shall apply as between Ihe parties hereto
and assign~s of Lessor.
11.PERSONAL PROPERTY. The Equipment is and shall remain, personal properly and shall not be deemed to be affixed or attached to
'eal properly or any building thereon. It requested by Lessor, lessee shall, at rts expense, furnish to Lessor a landlord or mortgagee waiver
With respect to the Equipment
\ 2. U"". AI!PAIAS. Lessee shall use the Equipment In a careful manner lor Ihe use contem>>lated by the manufacturer of the E
ao,d sh~;, comply with all laws, ordinances, Insurance policies and regulations relallng to, and shall pay all costs, claims, dama~~;r;':;~
and charges anslng, out of, lIS possession, use or maintenance. Lessee, al ,Is sole cost and expense, shall maintain the Equipment according
to the manufacturer srecomrr.anded gUidelines or the eqUivalent and meet any and all recertification requirements and shall furnish prool
of such maintenance, If requested by Lessor, and shall furnosh all needed servicing and parts, which parts shall become pert 01 the Equipment.
W the EquIpment IS such as IS customarily covered by a maintenance agreement, Lessee shall enter into a maintenance agreement with
a party satislactory to Lessor, and furnish a copy Ihereof 10 Lessor.
13. AL TERAnONS. Lessee shell not make any allerations, additions or improvements to the Equipment without Lessor's prior written consent,
and any permitted alteration or -.ehment which cannot be readily removed without damaging the Equipment's originally intended function
or value shall become pert of ~uipment.
14. LOCAnON; INSPECnON. . Equipment shall not be removed from, or d the Equipment consists 01 rolling stock, Its permanent base
shall not be changed from, the Equipment Location withoul Lessor's prior written consent, which consent shall not be unreasonably withheld.
Lessor shall be entitled to enter upon Ihe Equipment Location or elsewhere during reasonable business hours to inspect the Equipment
or observe its use and operation.
15. LIENS AND TAXES. Lessee shall keep the Equipment free and clear 01 all levies, liens and encumbrances except those created
under this Master Lease. Lessee shall pay, when due, all charges and taxes (Iederal, state and local) which may now or herealler be
imposed upon the ownership, leasing, rental, sale, purchase, possession or use 01 the Equipment, excluding however, all taxes on or measured
by Lessor's net income. If Lessee lails to pay said charges and taxes when due, Lessor shall have the right, but shall not be obligated.
to pay saId charges and taxes. If Lessor pays any charges or taxes for which Lessee is responsible or Iia~ under this Master Lease
Lessee shall, upon demand, reimburse Lessor therelor, '
18. RISK OF LOSS; DAMAGE; DESTRUCTION. Lessee assumes all risk 01 loss 01 or damage to the Equipment from any cause whatsoever,
and no such. loss 01 or damage to the Equipment shall relieve Lessee 01 the obligation to make the Rental Payments or to perlorm any
other obligation under thIS Master Lease. In the event of damage to any Item 01 Equipment, Lessee shall immediately place the same
in good repair (the proceeds of any insurance recovery shall be applied to the cost 01 such repair). If Lessor determines that any ilem
01 Equipment is lost, stolen, destroyed or damaged beyond repair, Lessee, at the option of Lessor, shall: (al replace the same with like
equipment in good repair, or (b) on the next Rental Payment date pay to Lessor (i) all amounts owed by Leasee under the applicable
Leasing Schedule, including the Rental Payment due on such date, and (ii) an amount not less than the balance 01 the Rental Payments
on the Rental Payment Schedule then remaining unpaid hereunder. In the event that Lessee is obligated to make such payment with respect
to less than all 01 the Equipment described on a Leasing Schedule, Lessor shall provide Lessee with the pro rata amount 01 the Rental
Payment and the balance 01 the Rental Payments on the Rental Payment Schedule then remaining unpaid thereunder, U appHcable, 10
be made by Lessee with respect to the Equipment which has suffered the event of loss. t
17. INSURANCE. Lessee shall, at its expense, maintain at all times during the Lease Term, fire and extended cover~pubIIc liability
and property damage insurance with respect to the Equipment in such amounts, covering such risks, and with such insurtre .. IhaIl be
satislactory to Lessor. The insurance limits shall be in an amount not less than the balance of the Rental Payments 1hef remaining lor
the Lease Term. Each insurance policy shall name Lessee as an insured and Lessor or Its assigns as an addltlonal insured or Iosa payee,
as appropriate, and shall contain a clause requiring the insurer to give Lessor or its assignee at least thirty (30) days prior wrilIen nollce
01 any alteration in the terms 01 such policy or the cancellation thereol. The proceeds 01 any such policies shall be payable to Lessee
and Lessor or its assigns, as their interests may appear. Upon acceptance of the Equipment and upon each inaurance renewal date, Lessee
shall deliver to Lessor a certificate evidencing such insurarice. In the event 01 any loss, damage, injury or accident involving the Equipment,
Lessee shall promptly provide Lessor with written notice thereof and make available to Lessor all inlormation and documentation relating
thereto. Notwithstanding the foregoing, with Lessor's prior wntten consent, Lessee may sell-insure against any and all risks for which insurance
is required.
18. INDEMNIFICATION, In the event that Lessee is not a state or political subdivision thereol, within the meaning 01 Section 103 01 the
Code, or if Lessee, whether by its use of the Equipment or by its actions or omissions or by any means whatsoever, causes any interest
payment as set forth in the Rental Payment Schedule to be included in Lessor's gross income, Lessee agrees to pay to Lessor, Its assignees
and any participants with such, an additional amount which, together with the amount of interest to be paid by Lessee under this Master
Lease, puts Lessor, its assignees and any participants with such, in the same aller-tax position they would have been in had such payments
been exciuded from the gross income of Lessor, its assignees and any participants with such under Section 103 of the Code. In addition,
Lessee agrees to indemnily Lessor against, and hald Lessor, ItS assignee, or any participants with such, harmless from, any and all claims,
actions, proceedings, expenses, damages, liabilities ar losses (including, but not limited to, attorneys' fees and court costs) arising in connection
with the Equipment, including, but not limited to, its selection, purchase, delivery, possession, use, aperation or return and the recovery
af claims under insurance policies thereon.
19. EVENTS OF DEFAULT. The term "Event of Default", as used in this Master Lease, means the occurrence of anyone or more of
the fallawing events: (a) Lessee fails to make any Rental Payment lor any other payment) as it becames due in accordance with the terms
0.1 this Master Lease ar any Leasing Schedule, and any such lailure continues far five (5) days aller the due date thereot, (b) Lessee
fails to perfarm ar observe any ather covenant, candition ar agreement to be performed or observed by it hereunder and such failure
is nat cured within ten 110) days aller the giving 0.1 written notice thereof by Lessar; Ic) the discovery by Lessor that any statement, representation
or warranty made by Lessee in this Master Lease, any Leasing Schedule or in any document ever delivered by Lessee pursuant hereto
ar in connection herewith is false, misleading or erroneous in any material respect, Id) Lessee becomes insolven~ is unable to pay its
debts as they become due, makes an assignment for the benefit 01 creditors, applies or cansents to the appointment 01 a receiver, trustee,
conservator or liquidator af Lessee or of all ar a substantial part of its assets, a petition far relief is filed by Lessee under federal bankruptcy,
insolvency or similar laws, ar a petitian in a praceeding under any bankruptcy, insolvency or similar laws is filed against Lessee and is
nat dismissed within thirty 130) days thereafter; Ie) Lessee suffers an adverse material change in its financial condition ar operations from
the date hereof and, as a result, Lessor deems itself insecure; ar (n Lessee shall be in defaull under any other agreement executed at
any time with Lessor, its affiliates or Lessor's assignee ar under any other agreement or instrument by which it is bound.
20. REMEDIES. Upan the accurrence af an Event of Default, Lessor may, at its option, exercise anyone or more 0.1 the following remedies:
fa) by written notice to Lessee, declare an amount equal to all amounts then due under this Master Lease and all remaining Rental Payments
which shall become due during the Lease Term af any or all Leasing Schedules to be Immediately due and payable, whereupon the sam,e
shall become immediately due and payable; (b) by written natice to Lessee. request Lessee to (and Lessee agrees that It shall), at Lessee s
expense: promptly return the Equipment subject to any or all Leasing Schedules to Lessor in the manner set forth in Section 8 hereaf,
or Lessor, at its aptian, may enter upon the premises where the EqUIpment IS located and take Immediate possession o.f and remove
the same without liability for such entry or for damage to property or otherwise; lc) sell any or all af the EqUipment subject to any or
all Leasing Schedules at private or public sale, with or without notice to Lessee or advertisement, or lease the Equip":,ent or sublease
it for the account of Lessee, holding Lessee liable for Ii) all Rental Payments and other payments due as 01 the effective date of such
(CONTINUED ON REVERSEl
.."'''','.' ,........,,'~..., ~...w,......~"':;, ....,... \"/ 'w, ,,'... ....",...,,,,,,...,, ,",ClftCCll U,tl' jJUfLI18.. prlC., ,.nrBlano otnEif atnaun~ pllld cy tn. j) rc:h
or .ubl..... pUrluant to .uch .al., I.... or .ubl.... and Ih. remainin; .moun" p.yabl. by. the I..... h.reund.r, ~nd fJI'~~:~:'::
any oth..~ "lht, remedy or privilege which may be avatlable to It under applicable lew, including Ihe rlQht to (i) proceed' by appropriate
court action 10 enforce the terms of 1hls Master Lease, III) recover damage~ for the breach 01 this Master Lease, and liii) terminate this
Masler Lease as to any or all of the LeaSing Schedules.
In add~ion, Lessee shall remain liable for all covenants and indemn~ies under this Master Lease and for all legal fees and other co8l8
and expenses, including court costs, incurred by Lessor with respect to the enforcement of any of the remedies listed above or any other
remedy aveilable to Lessor.
21. EARLY PURCHASE OPTlON.l..esSee may, on any Rental Payment Date, w~ respect to a Leasing Schedule, upon sixty (60) days
prior written notice to Lessor, and provided Lessee shall have fully paid and performed all other obligations hereunder and provided no
Event of Defauh has occurred and "continuing, pay to Lessor the applicable amount set forth on any Rental Payment Schedule allached
to the applicable Leasing Schedule,.!lllhereupon titte to the Equipment associated with such Leasing Schedule shall become unconditionally
vested in Lessee and Lessor shall Iransfer any and all of its right, title and interest in such Equipment to Lessee as is, where is, w~out
warranly, express or implied, except that Lessor shall warrant to Lessee thai the Equipment is free and clear of any liens created by Lessor.
22. ASSIGNMENT. Without Lessor's prior written consent, Lessee shall not (a) assign, transfer, pledge, hypothecate or grant any secumy
interest in, or otherwise dispose of, this Master Lease, the Initial Leasing Schedule, the Leasing Schedules or the Equipment or any interest
in any of the foregoing or (b) sublet or lend the Equipment or permit the Equipment to be used by anyone other than Lessee or Lessee's
employees.
Lessor, w~out the consent of Lessee, may assign all or any portion or portions of ~ right, title and interest in and to this Master Lease,
any Leasing Schedule, the Equipment and any other documents executed with respect to this Master Lease, and/or grant or assign all
or any portion or portions of its secur~ interest in this Master Lease, the Leasing Schedules and the Equipmen~ in whole or in part to
various assignees, their agents or trustees (each and anyone hereinafter referred to as an "Assignee"). Any such assignment to an Assignee
may provide that Lessor or the Assignee shall act as a collection and paying agenl for holders of certificates of participation in this Master
Lease, or may provide that a third-party trustee or agent shall act as collection and paying agent for any Assignee, provided Lessee receives
written notification of the name and address of the trustee or the agenl and a copy of the pooling and fractionalization agency or trustee
agreement, if any. Any such Assignee sha'l have all of the assigned rights of Lessor under this Master Lease. Subject to the foregoing,
this Master Lease shall inure to the benefit of and is binding upon the heirs, executors, administrators, successors and assigns of the
parties hereto. Any assignment or reassignment of any of Lessor's righ~ title or interest in this Master Lease, any Leasing Schedule or
Ihe Equipment shall be effective upon receipt by Lessee of a duplicate original of the counterpart document by which the assignment
or reassignment is made, disclosing the name and address of each such Assignee and, where applicable, to whom further payments hereunder
should be made. During the Lease Term, Lessee covenants that it shall keep a complete and accurate record of all assignmenll in form
necessary to comply w~h Section 14gla) of the Code and the regulations, proposed or existing, from time to time promulgated ,\her8under.
Lessee agrees to acknowledge, in writing, any assignments if so requested. Zj
LESSEE AGREES THAT, UPON NOTICE OF ASSIGNMENT, IF SO INSTRUCTED IT SHALL PAY DIRECTLY TO THE AS9fGNEE, OR
ITS TRUSTEE OR AGENT, WITHOUT ABATEMENT, DEDUCTION OR SETOFF, ALL AMOUNTS WHICH BECOME DUE HEREUNDER.
LESSEE FURTHER AGREES THAT IT SHALL NOT ASSERT AGAINST ANY ASSIGNEE, TRUSTEE OR AGENT ANY DEFENSE, CLAIM,
COUNTERCLAIM OR SETOFF ON ACCOUNT OF ANY REASON WHATSOEVER WITH RESPECT TO ANY RENTAL PAYMENTS OR
OTHER AMOUNTS DUE HEREUNDER OR WITH RESPECT TO ANY ACTION BROUGHT TO OBTAIN POSSESSION OF THE EQUIPMENT
PURSUANT TO THIS MASTER LEASE.
23. NATURE OF AGREEMENT. Lessor and Lessee agree that ~ is their intention tha~ for federal income tax purposes, the interest of Lessor
In the Equipment is as a secured party and the interest of Lessee is as a debtor, and that Lessor ne~er has nor shall have any equ~
in the Equipment. It is the agreement of Lessor and Lessee that the aggregate rental payments provided for on any Rental Payment Schedule
constrtute the purchase price of the related Equipment together w~ Interest on the unamortized amount thereof over the Lease Term of the
Leasing Schedule, that each monthly installment of rent const~tes principal and interest as set forth in the Rental Payment Schedule, which
fully amortizes the purchase price of the related Equipment. together wrth intere~ over the lerm of the Leasing Schedule, and that upon Ihe
due and punctual payment of all installments of Rental Payments and other amounts and obligations under the Leasing Schedule, title to
the related Equipment shall vest permanently in Lessee as provided in this Master Lease, free and clear of any lien or securily of Lessor
therein.
24. NOTICES. All notices to be given under this Master Lease shall be made in writing and mailed by certified mail 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 given five 15) days subsequent to mlliing.
25. 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 Master Lease.
26. GOVERNING LAW. This Master Lease shall be govemed by the provisions hereof and by the laws of the state in which the Equipment
IS located.
27. FURTHER ASSURANCES. Lessee shall execute or provide, as requested by Lessor any documents and information which are reasonably
necessary w~h respect to the transactions contemplated by this Master Lease. Lessee hereby authorizes Lessor to execute and file on behaff
of Lessee and as Lessee's attorney-in-fact such UCC financing and continuation statements as Lessor deems necessary to secure Its andl
or Its assign's interest in the Equipment or this agreement.
28. ENTIRE AGREEMENT. This Master Lease, together w~ the exhib~ attached hereto and made a part hereof and other attachments
hereto and other documents or instruments executed by Lessee and Lessor in connection herew~, con~ute the entire agreement between
Ihe p~rties w~ respect to the lease of the Equipmen~ and this Master Lease shall not be modified, amended, ahered or changed except
with the written consent of Lessee and Lessor. .
29. SEVERABILITY. Any provision of this Master Lease found to be prohibrted by law shall be ineffective to the extent of such prohibrtlon
w~out invalidating the remainder of this Master Lease. . . .
30. WAIVER. The waiver by Lessor of any breach by Lessee of any term,eovenant or condition hereof shall not operate as a waiver of
any subsequent breach hereof.
LESSOR: Cltlcorp North AmerIca, Inc.
DATE:
SA M1>>tE
BY:
PRINTED NAME AND TITlE
AUTHORIZED StGNATURE AND TITLE
LESSEE:
BY: X
DATE:
MUNICIPAL ENTITY
AUTHORIZED SIGNATURE
PRINTED NAME AND TITLE
CNAVPG M1123 105-881
"
cmCORPONORTH AMERICA
:.:;;.,;;z
EXHIBIT A to '", ......
LEASING SCHEDULE RO. EFFECTIVE AS OF
MASTER STATE AND MUNICIPAL LEASE,}PURCHASE AGREEMENT
DESCRIPTION OF EQUIPMENT
Quantity Description of leased Equipment (Make. Kind. Model No., Serial No., Any Other Pertinent Identification)
814M/PiE <i
'<
LOCATION OF EQUIPMENT
ADDRESS:
CITY:
STATE:
COUNTY:
ZIP:
CERTIFICATION
Lessee hereby certifies that the description of the property set forth above constitutes an accurate account of the
Equipment as referred to in the Master Lease.
Lessee:
(Municipal Entity)
By:
(Authorized Signature)
(Printed Name and Title)
Date:
NA VPG M 1123-8 04.88
I
cmCORPONORTH AMERICA
EXHIBIT B to .~
LEASING SCHEDULS.. EFFECnVE AS OF
MASTER STATE AND MUNICIPAL LEASE/PURCHASE AGREEMENT
DELIVERY AND ACCEPTANCE CERTIFICATE
To: Citicorp North America, Inc.
Reference is made to the Master State and Municipal Lease/Purchase Agreement between the undersigned ("LeI8ee"I,
and Citicorp North America, Inc. ("Lessor"), dated ("Master Lease") and to the Equipment
as such term is defined therein. In connection therewith we are pleased to confirm to you the following:
1. All of the Equipment has been delivered to and received by the undersigned; that all IIlIlaHatlon or
other work necessary prior to the use thereof has been completed; that said Equipment has been examined
and/or tested and is in good operating order and condition and is in all respecl8 satlsfacfllly to the
undersigned and as represented, and that said Equipment has been accepted by the underIIgned and
complies with all terms of the Master Lease. Consequently, you are hereby authorized to pay for the
Equipment in accordance with the terms of any purchase orders for the same.
2. In the Mure, in the event the Equipment fails to perform as expected or replBSBnted we will contini
to honor the Master Lease in all respects and continue to make our rental and other payments thare~
in the normal course of business and we will look solely to the vendor, distributor or manufactlrir
for recourse.
3. nowledge that Lessor is neither the vendor nor manufacturer or distributor of the Equipment and has
no control, knowledge or familiarity with the condition, capacity, functioning or other characteristics of
the Equipment.
4. The serial number for each item of Equipment which is set forth on Exhibit A to the Leasing Schedule
is correct.
,
This certificate shall not be considered to atter, construe, or amend the terms of the Master Lease.
Lessee:
Date:
By:
Witness
CNAiVPQ.M1123.b 04.88
CmCORp.ONORTH AMERICA
EXHIBIT C to
LEASING SCHEDULE NO. . EFFEcnYE AS OF
MASTER STATE AND MUNICIPAL LEASElPURCHASE AGREEMENT
LEASE RENTAL ",~1" PAYMENT ADVANCE RENTAL PAYMENT CAPITAL COST
TERM PERIOOS ,;::: DATI 01' EQUIPMENT
o MonlhIy ~~o::n First Rental and Last RentaIlI of
o QuarIerly of$ lIlICh, shall be delivered
mon1hs (Check onel Start Date .
0 to Lessor at time of signing lhla Ma8l8r ~
RENTAL PAYMENT AND AMORTIZATION SCHEDULES
Rental PlYment Rental PlYment Amount Credited Amount Credited to Eat1y Purchaae
Numbel' to Int.,...t Capital Colt Option Price
1
2
3
4
5
6
7
8 fr ::- ~ ~
9 ~ h 1t1 1M- rr:;.. .
10 v u i~ ::::,
11 ~:::,1! :::,
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
,
31
32
33
34
35
AA
cmCORPONORTH AMERICA
OPINION OF COUNSEL
[TO BE ON LETTERHEAD OF LESSEE OR ITS OUTSIDE COUNSEL]
SAM/PiE
EXHIBIT D to y~
STATE AND MUNICIPAL LEASE/PURCHASE AGREEMENT
RE: State and Municipal Lease/Purchase Agreement dated
Citicorp North America, Inc. ("Lessor") and
("Lease") between
("Lessee")
Gentlemen:
As counsel for Lessee, I have examined duly executed originals of the Lease and the proceedings taken by the Lessee to
authorize and execute said Lease. Based upon such examination as I have deemed necessary and appropriate, I am of the
opinion that:
1. Lessee is a duly created and validly existing state or fully constituted political subdivision or agency of the State
of (" State ") and has the power and authority to enter into the Lease
and carry out the terms thereof. !~
2. The interest component of the Rental Payments as set forth in Exhibit C to the Lease qualifies for exemptiod"trom
federal income taxes by Lessor under Section 103 of the Internal Revenue Code of 1986, as amended and the
related regulations and rulings thereunder.
3. The execution, delivery and pertormance by the Lessee ofthe Lease have been duly authorized by all necessary
action on the part of the Lessee. All applicable bidding and budgeting requirements have been complied with. I
have attached to my opinion copies of any resolutions adopted by the Lessee relating to the Lease.
4. The Lease is a governmental purpose obligation and consmutes a legal, valid and binding deferred payment
obligation of the Lessee, enforceable in accordance with its terms and does not constitute a debt of Lessee under
the laws of the State of . In the event Lessor obtains judgment against Lessee
for money damages in connection with the Lease, Lessee will be obligated to pay such judgment
5. The Lease is in accordance with and does not violate the usury statutes of the State.
6. The Equipment (as defined in the Lease) constitutes personal property and when subjected to use by Lessee will
not become fixtures under applicable law.
7. No litigation is pending or to the best of my knowledge threatened in any court or other tribunal, state or federal,
relating to the validity of the Lease.
8. The signature of the official of Lessee which appears on the Lease and the attached documents is true and
genuine; I know him/her to hold the office set forth below his/her name. Such official is duly authorized to execute
the Lease and the attached documents. I have attached hereto a copy of such authorization.
9. The current fiscal period of Lessee ends on ; the next
succeeding fiscal period of Lessee ends on
Very truly yours,
Counsel for Lessee
By:
.
cmCORPONORTH AMERICA
EXHIBIT E-1 to
STATE AND MUNICIPAL LEASE/PURCHASE AGREEMENT
oS AI hi ,Q ff:n
UWI/Pl/E
CERTIFICATE OF RESOLUTIONS AND INCUMBENCY
, do hereby certify that I am the duly elected, or appointed
, an agency
(the "Lessee"), and that the following
at a meeting duly
,19
day of
I,
and acting Secretary/Clerk of the
duly organized and existing under the laws of the State of
resolutions have been presented to and duly adopted by the
and regularly held and convened in accordance with applicable law on the
WHEREAS. the Lessee is entering a State and Municipal Lease/Purchase Agreement ("Lease") dated ~
19 , with Citicorp North America, Inc.; ~
NOW. THEREFORE. be II RESOLVED. that the Lessee be, and hereby is, authorized to enter into the Lease with CiliCorp North
America, Inc., and be it further
RESOLVED. that an official of the Lessee be, and hereby is, authorized, empowered and directed to sign on its behalf the
Lease and any addenda, schedules, notes, UCC financing statements or other instruments issued under the provision of the
Lease and any other instrument or document which may be necessary or expedient in connection with agreement upon or
fulfillment of the provisions of the Lease.
I further certify that (i) the individuals named below are the duly elected or appointed officers olthe Lessee, holding the offices set
forth opposite their respective names, (ii) the signatures set opposite their respective names and titles are true and authentic
signatures and (iii) such officers have the authority on behalf of the Lessee to enter into all documentation connected with the
Lease.
Name
Title
Signature
IN WITNESS WHEREOF. I have duly executed this certificate and affixed the seal hereto this - day of
19
Lessee:
(Municipal Entity)
By:
(Signature of Secretary/Clerk)
IPrinted Name)
CNAiOF 1123-e/1 7-87
,
cmCORPONORTH AMERICA
l'"_ .
p-'
ESSENTIAL USE/SOURCE OF FUNDS LETTER
STATE AND MUNICIPAL LEASE/PURCHASE AGREEMENT
RE: State and Municipal Lease/Purchase Agreement No.
8~
- 'p/i,~
Citicorp North America, Inc.
601 Midland Avenue
Rye, New York 10580
Gentlemen:
This confirms and affirms that the Equipment described in the State and Municipal Lease/Purchase Agreement referred to above
(the "Lease") is essential to the function of the undersigned or to the service we provide to our citizens.
Further, we have an immediate need for, and expect to make immediate use of. substantially all such Equipment, . need is
not temporary or expected to diminish in the foreseeable Mure. Such Equipment will be used by us only for ~ 01
performing one or more of our governmental or proprietary functions consistent with the permissible scope 01 air authority.
Specifically, such Equipment was selected by us to be used as follows:
~
The estimated useful life of such Equipment based upon manufacturer's representations and our projected needs is
Our source of funds for payments of the rent due under the Lease for the current fiscal year is
We expect and anticipate adequate funds to be available for all future payments of rent due alter the current fiscal year for the
following reasons:
Very truly yours,
Lessee:
MUNICIPAL ENTITY
BY: X
AUTHORIZED SIGNATURE
PRINTED NAME AND TITLE
Date:
CNAVPG 1123-EU 7-87