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CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: Barbara Pachon, Finance
Director
0,...'1''''' AL
flll"UIWn
Subject:
Purchasing
Addendum
agreement
Resolution authorizing the
Manager to sign an
to FMLC master lease
Dept: Finance
Date: 11/5/01
Synopsis of Previous Council Action:
7-8-1998 Master Lease with FMLC approved, resolution #98-178
6-5-2001 Purchase of 4 Fire apparatus from Pierce Mfg., resolution #2001-132
Recommended motion:
Adopt Resolution.
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Ignature
Contact person: Barbara Pachon, Director of Finance
Phone: 5242
Supporting data attached: Vendor's Master Agreement
Ward:
FUNDING REQUIREMENTS: Amount:
Source:
Fln.nce,~~L
Council Notes:
iZas'l""'zOOl- ~ l\
Agenda Item No. J3
)//5/0)
STAFF REPORT
SUBJECT:
Resolution authorizing the Purchasing Manager to sign an Addendum to FMLC master lease
agreement.
BACKGROUND:
In order to finalize the financing of the purchase of four (4) fire apparatus for the Fire
Department, the City needs to amend its master-lease agreement with First Municipal Leasing
Corporation (FMLC).
At the June 5th Council Meeting, the Mayor and Council approved the Fire Department's
purchase offour (4) new fire apparatus from Pierce Manufacturing (Resolution 2001-132). The
resolution also authorized the Purchasing Manager to obtain rate quotes to finance the purchase
of the apparatus from financing companies with Council approved master-lease agreements in
place with the City. The Finance Department issued a request for financing rate quotations in
September. FMLC was determined to be the lowest and best financing provider and was awarded
the bid to finance the fire apparatus.
FMLC has a master-lease in existence with the City that was approved on July 8th, 1998
(resolution #98-178). Normally, if a financing provider has a master-lease agreement in place
with the City, Council approval is not necessary to award the financing if authorization to obtain
financing was given at the time the purchase of equipment was approved. However, in this
situation, there are unique, specific requirements related to the purchase of the fire apparatus that
require an amendment to the master-lease agreement.
Once an organization enters into an agreement with a manufacturer to produce expensive,
customized equipment like fire apparatus, it is usually required that the organization making the
purchase pay for a portion or all of the costs up front (upon receipt of a performance bond from
the manufacturer) depending upon the specifics of the agreement. Because of this, most
financing institutions require the use of an escrow account to manage the proceeds of the lease.
The amendment to the master-lease agreement with FMLC applies specifically to escrow
transactions. At the requirement ofFMLC, and with the approval of the City Attorney's Office,
standard language for "interpleader" and "indemnification" clauses is being added to the
agreement (exhibit "A").
Once the master-lease agreement with FMLC is amended to include the updated escrow
language, FMLC will fund the lease and Pierce can begin the production of the Fire
Department's apparatus.
FINANCIAL IMPACT:
There is no financial impact to the City to amend the lease with FMLC.
RECOMMENDED MOTIONS:
Adopt Resolution.
Resolution No.
2 RESOLUTION OF THE CITY OF SAN BERNARDINO APPROVING TIlE ESCRO
3 AMENDMENT TO TIlE MASTER LEASE AGREEMENT (RESOLUTION 98-178
4 WITII FIRST MUNICIPAL LEASING CORPORATION FOR TIlE FURNISHING 0
5 LEASE PURCHASE FINANCING.
6 BE IT RESOLVED BY TIlE MAYOR AND COMMON COUNCIL OF TIlE CITY 0
7 SAN BERNARDINO AS FOLLOWS:
8 SECTION 1. That the Mayor and Common Council authorize the Purchasing Manager to sig
9 the attached "Exhibit A" as an amendment to the master lease agreement with FMLC
10 resolution 98-178.
11 SECTION 2. The City shall not be obligated under the Agreement unless and until actua
12 financing is required for a specific lease purchase.
13 SECTION 3. No transactions shall be initiated under this amendment to the Master Leas
14 Agreement 98-178 without the approval by the Mayor and Common Council as a separat
15 schedule under the Master Lease Agreement.
16 III
17 III
18 1/1
19 III
20 III
21 III
22 III
23 III
24 III
25 /11
1 RESOLUTION OF THE CITY OF SAN BERNARDINO APPROVING THE ESCROW
2 AMENDMENT TO THE MASTER LEASE AGREEMENT (RESOLUTION 98-178)
3 WITH FIRST MUNICIPAL LEASING CORPORATION FOR THE FURNISHING OF
4 LEASE PURCHASE FINANCING.
5 I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and
6 Common Council of the City of San Bernardino at a
meeting thereof, held on
7 the day of
8 Council Members:
9 ESTRADA
10 LIEN
11 McGINNIS
12 SCHNETZ
13 SUAREZ
14 ANDERSON
15 McCAMMACK
, 2001, by the following vote, to wit:
Ayes
Nays
Abstain
Absent
16
17
City Clerk
18
The foregoing resolution is hereby approved this
day of
, 2001.
19
20
21
22
23 Approved as to form and legal content:
24 James F. Penman, City Attorney
Judith Valles, Mayor
City of San Bernardino
25 BY:
Amendment To Escrow Agreement
Dated: As of October 25, 2001
This Amendment To Escrow Agreement dated as of October 25, 2001, to the Escrow
Agreement dated as of October 25, 2001, (the "Escrow Agreement"), is entered into by and
between First Municipal Leasing Corporation ("Lessor"), a Colorado corporation, the City of
San Bernardino ("Lessee") a political subdivision of the state of California and Comerica Bank
("Escrow Agent"), a California corporation. Capitalized terms used herein and not otherwise
defined shall have the meanings set forth in the Agreement.
1. The Escrow Agreement and all supporting documentation is hereby amended as follows:
A. Interoleader. The Escrow Agent is required to make payment to or for or deliver
documents to any party only if in its exclusive judgment such payment or delivery may be made
without Escrow Agent incurring any liability. If conflicting demands are made or notice served
upon the Escrow Agent with respect to this escrow the parties hereto agree that Escrow Agent shall
have the absolute right to elect to do either or both of the following: (I) withhold and stop all
further proceedings in, and performance of, this escrow, or (2) file a suit in interpleader and obtain
an order from the court requiring the parties to interplead and litigate in such court their several
claims and rights among themselves. In the event such interpleader suit is brought, Escrow Agent
shall ipso facto be fully released and discharged from all obligations to further perform any and all
duties or obligations imposed upon it in this escrow, and the parties jointly and severally agree to
pay Escrow Agent all costs, expenses, and reasonable attorney's fees expended or incurred by
Escrow Holder, the amount thereofto be fixed and judgment thereof to be rendered by the court in
such suit.
B. Indemnification. All parties hereto agree, jointly and severally, to pay on
demand, as well as to indemnify and hold the Escrow Agent harmless from and against all costs,
damages, judgments, attorney's fees, expenses, obligations and liabilities of any kind or nature
which in good faith, Escrow Agent may incur or sustain in connection with, or arising out of this
escrow, All amounts charged thereto to compensate or reimburse the Escrow Agent for amounts
owing to it hereunder shall, from the time of such loss or charge, no longer constitute part of the
Deposit the Escrow Agent is hereby given a lien, to the extent allowed by law, upon all rights, title
and interest of each party in all escrowed papers and other property or monies deposited in this
escrow, to protect its rights and to indemnify and reimburse the Escrow Agent under these
Instructions, regardless of the consUlllffiation of this escrow.
C. Duties. All parties agree that as far as the Escrow Agent's rights and liabilities are
involved, this transaction is an escrow and not any other legal relation and the Escrow Agent is
such, only on the within expressed terms.
D. Time of Essence. TIME IS OF ESSENCE OF THESE AND ALL ADDITIONAL
OR CHANGED INSTRUCTIONS.
E. Governing Law, This Escrow Agreement shall be governed by and construed in
accordance with the laws of the state of California without reference to provisions governing
conflicts of law and the parties hereby submit to jurisdiction of any state or federal court siting in
San Francisco, California.
Page 1 of2
F. Notices. Any notice, request, demand or other communication provided for
hereunder to be given shall be in writing and shall be delivered personally, by certified mail,
return receipt requested, postage prepaid, or by transmission by a telecommunications device,
and shall be effective (a) on the day when personally served, including delivery by overnight
mail and courier service, (b) on the third day after its deposit in the United States mail, and (c) on
the business day of confirmed transmission by telecommunications device. The addresses of the
parties hereto (until notice of a change thereof is served as provided in this Section 2.10) shall be
as follows:
Escrow Ae:ent:
Comerica Bank
Special Corporate Financial Services
275 Battery Street, Suite 1100
San Francisco, CA 94111-3305
Attn: Lawrence Nelson
Facsimile No.: (415) 954-5066
Lessor:
First Municipal Leasing Corporation
1905 Foothills Drive South
Golden, CO 80401-9186
Facsimile No,: 888-329-3652
Lessee:
City of San Bernardino
Attn:
300 North D Street
San Bernardino, CA 92418-0001
Facsimile No.:
2. Except as specifically set forth herein, all of the terms and provisions of the Escrow
Agreement are ratified and confirmed by the parties hereto and shall remain in full force and
effect:
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed by their authorized representatives the day and year first above written.
First Municipal Leasing Corporation,
Lessor
City of San Bernardino,
Lessee
By:
By:
Its:
President
Its:
Comerica Bank,
Escrow Agent
By:
Its:
Amendment To Escrow Agreement
Dated as of October 25, 200 I
Page 2 of2
CITY OF SAN BERNARDINO
Interoffice Memorandum
CITY CLERK'S OFFICE
Records and Information Management (RIM) Program
DATE:
November 9, 2001
TO:
Marsha Zeller, Purchasing Agent
FROM:
Michelle Taylor, Senior Secretary
RE:
Transmitting Documents for Signature - Resolution 2001-334
At the Mayor and Common Council meeting of November 5, 2001, the City of San Bernardino
adopted Resolution 2001-334 - Resolution approving the Escrow Amendment to the Master
Lease Agreement (Resolution 98-178) with First Municipal Leasing Corporation for the
furnishing of lease purchase financing.
Attached is one (1) original agreement. Please obtain signatures in the appropriate location and
return the original agreement to the City Clerk's Office as soon as possible, to my attention.
If you have any questions, please do not hesitate to contact me at ext. 3206. Thank you.
Michelle Taylor
Senior Secretary
I hereby acknowledge receipt of the above mentioned documents.
Signed:
Date:
Please sign and return
, .
** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT **
RESOLUTION AGENDA ITEM TRACKING FORM
Meeting Date (Date Adopted): --.lJ-S--0\ Item #
Vote: Ayes;) ---I Nays &-
Change to motion to amend original documents: -
2COl-334
,
z~ Resolution #
Abstain -0-
Absent
Reso. # On Attachments: ~ Contract term: -
Note on Resolution of Attachment stored separately: -===-----
Direct City Clerk to (circle I): PUBLISH, POST, RECORD W/COUNTY
Date Sent to Mayor: ll-l-o \
Date of Mayor's Signature: 1\---,-0\
Date of ClerklCDC Signature: 1 ~,-<J \
NullNoid After: -
By:
Reso. Log Updated: ~
Seal Impressed: vi"
Date Memo/Letter Sent for Signature: 1\.-<<;-<::> 1
60 Day Reminder Letter Sent on 30th day:
90 Day Reminder Letter Sent on 45th day:
See Attached: ,,/' Date Returned:
See Attached:
See Attached:
Request for Council Action & Staff Report Attached:
Updated Prior Resolutions (Other Than Below):
Updated CITY Personnel Folders (6413, 6429, 6433,10584,10585,12634):
Updated CDC Personnel Folders (5557):
Updated Traffic Folders (3985, 8234, 655, 92-389):
Copies Distributed to:
City Attorney / Code Compliance
Dev, Services
Parks & Rec.
Public Services
Water
Police
Notes:
YesL No By
Yes NoL By
Yes No / By
Yes NoV By
Yes N07 By
EDA
Finance .,/
MIS
Others:
BEFORE FILING. REVIEW FORM TO ENSURE ANY NOTATIONS MADE HERE ARE TRANSFERRED TO THE
YEARLY RESOLUTION CHRONOLOGICAL LOG FOR FUTURE REFERENCE (Contract Term. etc.)
Ready to File: _
Date:
Revised 01/12/01