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ell If OF SAN BERNARDI...D - REQUE.___ T FOR COUNCIL AC., .ON
From: Dean R. Meech, Purchasing Agent
Sub~ct: Automated Refuse Trucks (3 each)
Side Loading
Dept: Purchasing
Date: November 22, 1988
Bid: F-88-15
~
Synopsis of Previous Council action:
Bid F-88-15
Resolution: 88/272
Authorizing Purchase of Automated Refuse Trucks
Recommended motion:
Adopt Resolution - Funding
Contact perlon: Dean R. Meech. Purchasing Agent
Phone: 1A4-l\nAI\
Supporting data attached:
Yes
Ward:
N/A
FUNDING REQUIREMENTS:
Amount: $82,126.00
Source: (ACCT. NO.) 127-412-55782
(ACCT. DESCRIPTION) Refuse Trucks
Finance: 0\ ,'~"'" J
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Council Notes:
Agenda Item No.
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CIT. OF SAN BERNARDI~.J - REQUE~1 FOR COUNCIL ACT,,~N
STAFF REPORT
F-88-15
The proposed purchase is for a Lease Purchase Fi nanci ng Agreement for three
(3) refuse trucks to be utilized in daily operations by the Refuse Department.
At the request of the department, appropri ate speci fi cati onswere prepared,
published and furnished to area suppliers. Bids were publicly opened and
declared on May 11, 1988.
The vehicles were purchased 8-3-88 per Council Resolution 88-272 dated 7-18-88
and Purchase Order Number 903277. The attached resolution authorized the Lease
Purchase Agreement for funding. .
Total funding is to be a five (5) year lease purchase at 7.19% interest with
semi-annual payments in arrears, each payment at $41,335.50. Total payout is
$413,355.00.
Account Number: 127-412-55782
75-0264
1
RESOLUTION NO.
2
RESOLUTION O~' 'I'HE Cl'I'Y OF SAN BERNARDINO AUTHORIZING AND
IRECTING THE EXECUTION OF AN AGREEMENT WITH PACIFICORP CAPITAL,
3 INC., FOR THE LEASE-PURCHASE FINANCING OF AUTOMATED REFUSE
4 'RUCKS.
5
6
7
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
SAN BERNARDINO AS FOLLOWS:
SECTION 1. The Mayor of the City of San Bernardino is
ereby authorized and di.rected to execute for and on behalf of
8 said City an Agreement with Pacificorp Capital, Inc., for the
9 lease-purchase financing of three automated refuse trucks, as
10 authorized by Resolution 88-272. A copy of said Agreement is
11 attached hereto as Exhibit "A" and incorporated herein by
12 reference as though fully set forth at length.
13
SECTION 2. This Agreement shall not take effect until
14 fully signed and executed by both parti.es. The City shall not be
15 obligated hereunder unless and until the AgreeI1lent is fully
16 executed and no oral agreement relating thereto shall be implied
17 or authorized.
18
I HEREBY CERTIFY that the foregoing resolution was duly
19 adopted by tbe Hayor and Common Council of the City of San
20 Bernardino at a meeting held on the day
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21 of 1988, by the following vote, to wit:
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24
25
26
27
28
AYES: Council Members
NAYS:
ABSENT:
City Clerk
1
DCR:rnw
RESOLUTION OF THE CI~Y AUTHORIZING AND DIRECTING THE EXECUTION
OF AN AGREEMENT WITi IACIFICORP CAf AL, INC. FOR THE
LEASE-PURCHASE FINANCING OF AUTOMATED REFUSE TRUCKS.
1
2
day
The foregoing resolution is hereby approved this
3 of
4
, 1988.
EVLYN-Wli;cox-, - Mayor- - - - - - -- ---
City of San Bernardino
)
MUNICIPAL LEASING CORPORATION AGREEMENT
Dated as of: February 6, 1986
Agreement No.
86-1112M
CONTRACT PARTIES
MUNICIPAL LEASING CORPORATION DBA
MUNICIPAL FINANCE CORPORATION IN CALIFORNIA
8260 Greensboro Drive, suite 225
McLean, Virginia 22102
A Virginia corporation,
hereinafter referred to
as -MLC-.
CITY OF SAN BERNARDINO
300 North D street
San Bernardino, California 92418
An agency or political subdivision
of the State of California
hereinafter referred to as
-Municipality- .
These addresses are to be used for all correspondence and notices (all notices are to
be by certified mail return receipt requested) from one party to the other and may be
changed by notifying the other party in writing.
THE PARTIES (MUNICIPALITY AND MLC) AGREE AS FOLLOWS:
1. DEFINITIONS
For purposes of this Agreement and related documents, the listed definitions will apply:
1.1 ACCEPTANCE DATE. Unless otherwise agreed to by the prior written consent of
MLC, it is defined as the acceptance by the Municipality of the first item of
equipment delivered under this Agreement.
1.2 ASSIGNEE. The person(s) or entity(ies) to whom MLC transfers its rights,
title and interest to a Schedule including the right to receive payments, a
security interest in the Equipment, and rights under the related Insura~ce.
1.3 EQUIPMENT. The goods enumerated on the attached Schedule(s).
1.4 RESERVE FUND. A fund established by MLC with a national banking association
for the benefit of Municipality and to assure the Investor or Registered
Owners the timely distribution of payments due hereunder, and to provide
interest and principal payments to MLC's Assignee(s) subsequent to an event
described in sections 7.1, 8.1, 8.2 or a loss occurring under Section 8.4
hereof.
'; 1.5 SCHEDULE. The document signed by the parties which authorizes the
installation of Equipment by MLC, describes the Agreement term for that
Equipment, and Municipality's obligations with respect to payment, the
assignable contract.
1.6 TRANSACTION DOCUMENTS. The Agreement, the Schedule(s), and all related
documents.
II. PURPOSE
2.1 MLC sells Equipment listed on Schedule(s) to Municipality, for consideration
indicated in those Schedule(s).
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III. TERM
3.1 The term of each Schedule will begin on the Acceptance Date of the
Equipment listed thereon and will terminate, except as otherwise provided
herein, at the expiration of the number of periods indicated on suCh
Schedule.
IV. PAYMENT
4.1 AMOUNT AND TIMES OF PAYMENT. The total purchase price indicated in the
Schedule(s) will be paid in the payment amounts set forth In the
Schedule(s). Charges will accrue from the Acceptance Date.
4.2 LATE CHARGES. Payments received more than fifteen days after the due date
will be subject to a late charge at the rate indicated in the appropriate
Schedule (or at the highest rate allowed by law, if less).
4.3 ABATEMENT OF PAYMENTS. There will be no abatement or reduction of
payments by the Municipality for any reason. It is the intention of the
parties that the payments be made in all events, unless the obligations to
pay such amounts are terminated as provided herein.
V. RESPONSIBILITIES OF MUNICIPALITY
5.1 CARE AND USE OF EQUIPMENT. Municipality, at its own expense, vill obtain
remedial and preventive maintenance during the term of this Agreement to
keep the Equipment in good operating condition and appearance.
The Municipality agrees to use and provide maintenance for the Equipment
only in manner and to standards contemplated by the Equipment
manufacturer. Selection of the firm to provide maintenance coverage will
be subject to approval by MLC, which approval vill not be unreasonably
withheld. Municipality agrees not to relocate the Equipment vithout the
prior written permission of MLC.
5.2 INSPECTION. With reasonable prior notice, Municipality will allow MLC to
enter the premises where the Equipment is located during normal business
hours to inspect the Equipment in order to determine whether Municipality
is fulfilling its responsibilities.
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5.3 INDEMNITY. Municipality hereby agrees to indemnify and save MLC harmless
from all liability, claims, loss, damage or expenses of any kind, made or
suffered by any party, during or after the term of this Agreement caused
directly or indirectly by the inadequacy of the Equipment, any
interruption or loss of service, any loss of business or other damage
resulting from any fault of or in the Equipment or arising out of the
ownerShip, selection, possession, operation, control, use, maintenance,
delivery or return of the Equipment, including but not limited to personal
injury, property damage, death or consequential damages. Indemnifications
shall include costs and expenses, including reasonable attorneys' fees
incurred in negotiations, trial or appeal by MLC in connection with any
claim or action resulting from any such liability. Municipality will be
credited with any amounts received by MLC from any liability insurance
secured by MLC.
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5.4 TAXES AND LICENSES. Municipality will comply with aUlaws'(1l4 ~y all
taxes relating to the Equipment and Municipality's obligations hereunder,
including, but not limited to, sales and use taxes, gross receipts taxes
(including business and occupational taxes which are based on MLC's gross
revenues related to this transaction), registration fees, license fees,
documentary stamp taxes, personal property and ad valorem ta~es ,and all
other taxes, licenses and charges imposed on the ownerShip, possession or
use of the Equipment during the term of this Agreement, together ~ith any
interest and penalties. Notwithstanding the foregoing, Municipality will
not be obligated to pay taxes based solely upon MLC's net income.
5.5 ASSIGNMENT OR DELEGATION BY MUNICIPALITY. Municipality agrees not to
lease, assign or transfer all or part of its rights and obligations under
this Agreement or in the Equipment.
5.6 DELIVERY OF RELATED DOCUMENTS. Municipality will sign or provide as
required the following documents satisfactory to MLC:
a) An Agreement Certification confirming Municipality's Acceptance of the
E9uipment as of the date installed.
~) An Opinion of Counsel confirming Municipality's authority, warranties
and representations.
c) An Opinion of Counsel confirming Municipality's capacity to issue
obligations qualifying Municipality as a political subdivision within the
meaning of Section 103 of the Internal Revenue Code and the related
regulations and rulings and that the portion of payments identified as
deferred interest charges to maturity, upon receipt, will not be
includable in Federal gross income under Statutes, regulations, court
decisions and rulings existing on the date of this opinion and
consequently will be exempt from present Federal income taxes and income
tax of the State of California.
d) Documents evidencing title and delivery.
e) Municipality's maintenance contract on Equipment.
f) Financing statements or other documents perfecting MLC's security
interest.
g) No-Arbitrage certificate.
h) Written acknowledgement of assignment and other documents required by
the Assignee.
i) Municipality's liability insurance and casualty insurance policy
covering Equipment, if applicable.
~j) Municipality's representations as to the essential nature and use of
the Equipment.
I'
Municipality shall forward items b through j (as required) to MLC prior to
Equipment installation.
5.7 TRANSPORTATION AND INSTALLATION CHARGES. Municipality shall be
responsible for all charges relating to the transportation of Equipment to
Municipality's location and installation at such location. MLC may at its
option either prepay such charges and invoice Municipality or forward to
Municipality transportation and installation invoices as they are
received, whereupon Municipality shall remit payment in a timely manner.
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VI. EQUIPMENT
6.1 TITLE. ~itle to the Equipment will pass to the Municipality on the
Acceptance Date. Title will revert to MLC upon termination pursuant to
Article VII or VIII.
6.2 SECURITY INTEREST. The Municipality grants to MLC and MLC retains a
purchase money security interest in the Equipment. Municipality will not
change or remove any insignia or lettering which MLC may place on the
Equipment to indicate its interest therein. Until all installment
payments are made or prepayment is complete Municipality will keep the
Equipment free from any lien, encumbrance or legal process and the
Municipality will promptly discharge any claim which might become a lien
or charge against the Equipment.
6.3 FILING. Municipality authorizes MLC to make MLC's security interest a
matter of public record by filings of any documents MLC deems necessary
for that purpose and to be responsible for any costs associated
therewith. Municipality agrees to Sign or execute such documents at its
expense to evidence its consent to the filings.
6.4 PERSONAL PROPERTY. The Equipment will remain personal property and not be
so affixed to realty as to change its character to a fixture or realty.
6.5 ALTERATIONS, ADDITIONS, ATTACHMENTS. In the event title to the Equipment
reverts to MLC, and at MLC's request, Municipality at its expense, will
remove all alterations, additions and attachments and repair the Equipment
as necessary to return the Equipment to the condition in which it was
furnished, reasonable wear and tear excepted. Any replacements or repair
parts are Equipment subject to the terms of the Agreement.
6.6 EQUIPMENT RETURN. Municipality is responsible for the return costs
related to the termination of this Agreement pursuant to Article VII or
VIII inclUding deinstallation, rigging, drayage, freight, and insurance to
destination within the continental United States. Municipality will
provide MLC with a current Original Equipment Manufacturer's certificate
of maintainability and arrange and pay for such repairs necessary to
ensure that the manufacturer accepts the Equipment for contract
maintenance at its then standard rates. In the event Municipality fails
to provide such certificate, MLC may but is under no obligation to obtain
the certificate and any charges associated therewith will be borne by
,': Municipality.
VII. DEFAULT AND REMEDIES
7.1 DEFINITION. Any of the following events will constitute default under
this Agreement:
a) Municipality fails to make payment required when due, provided such
failure is not a direct result of an earthquake and does not continue
beyond such time as normal business operations are resumed, and such
failure continues after written notice by MLC for a period of fifteen (15)
days after receipt of such written notice: or
b) Municipality fails to observe or perform any other covenant,
condition, agreement or warranty of the Agreement and such failure
continues for thirty (30) days without cure after MLC provides 0 r""\ -.' ',-I ^L
Municipality written notice of the failure. ,'" l;; 14 '"'lJ-\
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c) Municipality becomes insolvent: makes an assignment for the benefit of
creditors, applies for or consents to the appoint~ent of a receiver,
trustee, conservator or liquidator of Municipality or of all or a
substantial part of its assets: or a petition is filed by or against
Municipality under the Federal Bankruptcy Laws or any similar state or
federal laws providing for relief of debtors.
7.2 REMEDIES. If the Municipality defaults, MLC may at its option do any or
all of the following:
a) Terminate this Agreement by providing written notice to Municipality.
b) Take possession of the Equipment wherever situated without liability
for entering the premises:
c) Sell, lease or rent and use the Equipment at its sole discretion.
Municipality remains liable for arrears of payments, the costs of taking
possession including storage and repair, court costs and attorney's fees,
sale or lease costs, and the balance due under the Agreement. The
proceeds of such sale or lease of the Equipment shall be applied toward
the balance due after deducting the aforementioned costs and payments.
For the purposes of this provision, the balance due shall be equal to the
Prepayment Amount plus any principal deficiency in the Reserve Fund:
d) Declare immediately due and payable all monies during the Agreement
Term by providing written notice to MunicipalitYt and
e) Take any court action at law or in equity to enforce performance of
the Obligations or covenants of this Agreement and to recover damages for
the breach thereof.
Municipality shall remain liable for reasonable damages provided by law
including all costs and expenses incurred by MLC due to the default by
Municipality.
VIII. TERMINATION
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8.1 TERMINATION FOR NON-APPROPRIATIONS. Municipality's obligations to pay any
amounts due for those fiscal periods succeeding the current fiscal period
are contingent upon legislative appropriation or approval of funds for
that purpose. Therefore, the Municipality may terminate this Agreement
with respect to not less than the entire Schedule effective as of the end
of any of its succeeding fiscal periods (the -Termination Date-) by giving
MLC and its assigns sixty (60) days prior written notice of the
termination and advising MLC of the location(s) where the Equipment may be
found on the Termination Date. All obligations of Municipality to make
payments due after the Termination Date will cease and all interests of
Municipality in the Equipment will terminate. Notwithstanding the
foregoing, Municipality agrees (i) not to terminate a Schedule under this
provision if any funds are appropriated to it for the acquisition (by
either purchase or lease) of the Equipment or functionally similar
Equipment or Equipment performing similar applications and procedures for
the fiscal period in question and (ii) that it will use its best efforts
to obtain appropriation of the necessary funds to avoid termination of
each Schedule by taking all appropriate action including the inclusion in
Municipality's budget request for each fiscal period during the term
hereof a request for adequate funds to meet its obligations and to
continue the Schedule in force and (iii) that it will not give priority or
parity in the application of funds to any other functionally similar
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equipment for use by the Municipality, (iv) that if the Contract is terminated
pursuant to this Section 8.1, the Municipality will not in the then current or
succeeding fiscal years purchase, lease or rent Equipment performing functions
similar to those performed by the Terminated Equipment, and agrees not to
permit functions similar to those performed through the use of the Equipment
to be performed by its own employees or by any agent or entity affiliated with
or hired by Municipality. Municipality represents and warrants it has
adequate funds to meet its obligations during its current fiscal appropriation
period. Municipality aCknowledges that the monies and securities in the
Reserve pund shall be retained upon any Termination for th~ benefit of the
Investor or Registered Owners, and any deficiency in the principal amount of
the Reserve Pund shall be restored by Municipality, except, Municipality's
only responsibility shall be for a deficiency (Reserve pund Deficiency) in the
principal amount resulting from Municipality's failure to timely make payments
prior to the effective date of a non-appropriation of funds pursuant to this
Section 8.1.
8.2 PREPAYMENT. So long as Municipality is not in default, Municipality will have
the right, upon providing MLC with sixty (60) days prior written notice, to
prepay its obligation for the amount set forth in the Prepayment column on the
dates provided in the Schedule(s) plus the amount by which the principal
amount originally deposited in the Reserve Pund exceeds the principal amount
realized from such Pund upon its liquidation. Payment must be received by the
specific date established.
8.3 MUNICIPALITY'S RIGHTS ON PREPAYMENT OR PAYMENT IN PULL. Upon (i)
Municipality's exercise of its right of prepayment and/or (ii) Municipality's
having satisfied all of its monetary and other obligations hereunder, MLC will
release its security interest in the Equipment.
8.4 DESTRUCTION OF EQUIPMENT. In the event any of the Equipment is destroyed,
stolen or in the reasonable opinion of Municipality, damaged beyond economical
repair, Municipality shall give prompt written notice of such event to MLC and
its assigns. If MLC replaces such Equipment within 60 days of notification
then this Agreement will continue in force. Municipality at this time will
pay MLC for the replacement cost of the Equipment. If at the end of the sixty
day period the Equipment cannot be replaced then the Municipality will
immediately pay to MLC an amount in cash equal to that share of the Prepayment
Amount set forth in the appropriate Schedule(s) which is attributable to such
Equipment. Said amount shall be based on the percentage that the purchase
price of the Equipment bears to the total purchase price of all Equipment
included in such Schedule. There shall be no abatement of periodic payments
through the end of the sixty-day period. In the event there are insurance
proceeds covering this Obligation in excess of the amounts due then such
excess shall be retained by Municipality. The Municipality agrees, upon
prepayment under the terms hereof, resulting from the total damage,
destruction, or theft of all the EqUipment, to replenish the Reserve Fund as
set forth in Section 8.1 of this Agreement.
IX. ASSIGNMENT BY MLC
9.1
ASSIGNMENT. Municipality understands that MLC contemplates separately
assigning (or reassigning) its right, title and interest in each Schedule, the
Equipment listed thereon, and all rights to receive further payments to
another party (WAssigneeW), subject to the rights of Municipality
hereunder. Municipality consents to such assignments and agrees to send
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all Agreement notices to both MLC and its assignees. All rights of and
indemnifications to MLC will inure to the Assignee. Any such Assignee
will not be obligated to perform any of the obligations of MLC.
Municipality agrees to make payments required under the Schedule directly
to the Assignee without abatement or reduction of any kind. Municipality
will not assert against any Assignee or transferee of MLC's rights any
claim, any defense, counterclaim, offset or recoupment of any kind,
variety or nature which Municipality may now or hereafter have against MLC
whether accruing under the Agreement or otherwise.
9.2 ADVICE OF ASSIGNMENT. Upon assignment of MLC's interests to an Assignee,
MLC will cause a written notice of such assignment to be sent to
Municipality which shall be sufficient if it discloses the name of the
Assignee and the address to which further payments hereunder should be
made. No further action will be required by MLC or by Municipality's
consent to the Assignment. Notwithstanding the foregoing, no such
assignment shall be effective against the Municipality unless the
Municipality receives notification in writing of such Assignment
designating the name and address of any such assign. In compliance with
Section 103(j) of the Internal Revenue Code, the Municipality agrees to
affix a copy of each notification of assignment to the Municipality's
counterpart of the Agreement.
X. WARRANTIES AND REPRESENTATIONS
10.1 WARRANTIES AND REPRESENTATION OF MUNICIPALITY. The Municipality
represents and warrants to MLC and, so long as this Agreement is in effect
or any part of Municipality's Obligations to MLC remain unfulfilled, shall
continue to warrant at all times, that:
a) Municipality is a state or a duly organized and validly existing
political subdivision or agency thereof and has the power and authority to
enter into the Transaction Documents to which it is a party and to carry
out the terms thereof.
b) This Agreement and all other Transaction Documents and the performance
of Municipality's obligations thereunder have been duly and validly
authorized and approved under all laws and regulations and procedures
applicable to Municipality, the consent of all necessary persons or bodies
has been obtained and all of the Transaction Documents executed by
Municipality have been duly and validly executed and delivered by
authorized representatives of Municipality and constitute valid, legal and
binding obligations of Municipality enforceable against Municipality in
./: accordance with their respective terms.
XI. DISCLAIMER OF WARRANTIES
11.1 The Municipality acknowledges that the Equipment is of a size, design and
capacity, and manufacture selected by the Municipality. MLC is not a
manufacturer of the Equipment.
11.2 MLC MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS OR
IMPLIED, RELATING TO THE EQUIPMENT OR PATENTS RELATING THERETO; AND MLC
HAS EXPRESSLY MADE NO WARRANTY AS TO THE VALUE, DESIGN, CONDITION,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE EQUIPMENT.
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11.3 MLC will not be liable to the Municipality for any liabUity,lo,s or
damage caused or alleged to be caused, directly or indirectly, by the
Equipment or by any inadequacies thereof or deficiency or defect therein,
by any incident whatsoever in connection therewith or in any way related
to or arising out of this Agreement. Notwithstanding the foregoing, the
Municipality will be entitled to the benefit of any available
manufacturer's warranties. MLC agrees to execute and deliver such further
instrument as may be necessary, in the reasonable opinion of the
Municipality, to enable it to enforce such warranties and obtain the
warranties and service furnished for the Equipment by the manufacturer.
XII. GENERAL
12.1 WAIVER. No delay or omission by the parties in exercising any right in
any of the Transaction Documents shall operate as a waiver of that or any
other right and no single or partial exercise of any right shall preclude
the parties from any or further exercise of any right or remedy.
12.2 HEADINGS. All section headings contained herein are for clarification and
convenience of reference only and are not intended to limit the scope of
any provision of this Agr,ement.
12.3 SEVERABILITY. In the event any portion of this Agreement shall be finally
determined by any court of competent jurisdiction to be invalid or
unenforceable, such provision shall be deemed void and the remainder of
this Agreement shall continue in full force and effect.
12.4 AMBIGUITY. The parties to this Agreement, and each of them, hereby
represent that the language contained herein is to be construed as jointly
proposed and jointly accepted, and in the event of any subsequent
determination of ambiguity, all parties shall be treated as equally
responsible for any such ambiguity.
12.5 GOVERNING LAWS. This Agreement shall be construed in accordance with and
governed by the laws of the state where Municipality's principal place of
operations exists.
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12.6 IMPLEMENTATION. This Agreement shall be implemented through ScheduleCs).
For purposes of construing a transaction as an integrated agreement and
for the purposes of the provision of Article IX, the following shall be
considered a single transaction and legal and binding Agreement:
a) The Agreement, which provides basic terms and conditions.
b) A Schedule.
12.7 AMENDMENT. Any of the Transaction Documents may only be amended in
writing by obtaining the signature of the parties. No assigned
Transaction Document may be modified without the prior written consent of
Assignee.
12.8
EXECUTION. Each Schedule may be executed in any number of counterparts
but only the counterpart that is labeled, .Original. will be deemed to be
the original Schedule for purposes of perfection of a security interest
therein and shall be the only counterpart which may be transferred and
given to transfer the rights of MLC thereunder. This Agreement and
ScheduleCs) issued pursuant thereto shall not be effective until accepted
Cas evidenced by an authorized signature) by MLC.
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12.9 FORMATION OF AGREEMENT. MLC shall not be bound by this A9re~lJl~fl!t!-;.~ntU it
is excecuted by an officer of MLC.
XIII. SIGNATURES
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement tobe'""executed as
of the day and year first above written.
MUNICIPAL LEASING CORPORATION DBA
MUNICIPAL FINANCE CORPORATION IN CALIFORNIA CITY OF
BY: 1~;lL~~.4~.~.
BY:
NAME: W/lLIA-fI1 S. fl'I~~7'(, JI{
TITLE: f),,(nrol{ of t:c~;If<Tt;
DATE: .~!13 lSOt.
NAME: Dean
TITLE: Purchasinq Aqent
DATE: March' 5. 1986
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EXHIBIT A
MODIFICATION NO. 1
Dated as of July 1, 1988
Agreement NO: 1112
Modification No. 1 dated July 1, 1988 to Agreement No. 1112 dated
as of February 6, 1986 and all schedules thereto (the
"Agreement") between Municipal Leasing Corporation, as MLC, and
the City of San Bernardino, as Municipality.
1. It is acknowledged that MLC has, prior to the date hereof,
been merged into Systems Leasing Corporation, and that the name
of the surviving corporation is "PacifiCorp Capital, Inc." and
its State of incorporation is Virginia. It is further
acknowledged and agreed that as a result of the foregoing,
Pacificorp Capital, Inc. has succeeded to all rights and
interests of Municipal Leasing Corporation under the Agreement
and any and all Purchase Orders or subcontracts issued thereto.
In connection therewith, the name "PacifiCorp Capital, Inc." is
substituted for the name Municipal Leasing Corporation in the
Agreement in each place where the name "Municipal Leasing
'Corporation" appears, and any and all Purchase Orders or
subcontracts issued which may hereafter be acknowledged by MLC
under the Agreement shall be issued to PacifiCorp Capital, Inc.
in its own name (with the same force and effect as if PacifiCorp
Capital, Inc. were originally named as "MLC" under the Agreement.
2. Municipality agrees to appoint PacifiCorp Capital, Inc.'s
assigns as its agent for the purpose of maintaining a book entry
system as required by the Internal Revenue Code of. 1986.
3. No more than 10% of the use of any unit of the Equipment in
any month will be by persons or entities other than the
Municipality or its employees on matters relating to such
employment, and no more than 5% of use of any Unit of the
Equipment in any month will be unrelated to use by or for the
Municipality. No management contract shall be entered into with
respect to any unit if the Equipment unless (a) at least half the
compensation is on a periodic, fixed-fee basis; (b) no
compensation is based on a share of net profits and (c) the
Municipality is able to terminate the contract without penalties
at the end of any three years.
4. As an inducement of PacifiCorp Capital, Inc. to enter into
this Agreement, Municipality agrees to cooperate with PacifiCorp
Capital, Inc. in the assimilation and verification of information
with regard to any matters whatsoever concerning this Agreement,
and further agrees to execute such documentation as may be
required for the purpose of properly reporting this Agreement
including, without limitation, IRS form 8038G or 8038GC, as
required under the Internal Revenue Code of 1986 or any related
rulings and regulations thereunder.
ORIGINAL
MOdification No. 1
Aqreement 1112
paqe 2
5. The Agreement, as amended hereby, shall continue in full
force and effect in accordance with its terms.
IN WITNESS WHEREOF, the undersigned have executed this
Modification as of the date first above written.
PACIFICORP CAPITAL, INC.
as successor to Municipal
Leasinq corporation
CITY OF SAN BERNARDINO
Municipality
By
By
Name
Name
Title
Title
ORIGINAL
Dated as of: July 1, 1988
EXllIBIT B
SCHEDULE NO. 2
To Agreement No.: 1112
THIS SCHEDULE is issued pursuant to Agreement dated as of February 6, 1986,
between the parties to the Agreement to authorize installation of the
Equipment listed herein. All terms used herein have the meanings ascribed
to them in the Agreement.
A. paYment No. 1 shall be due six months from the date of acceptance, and
subsequent paYments shall be due semi-annually thereafter as set forth
hereunder:
Payment
Number
PaYment
Amount
1
2
3
4
5
6
7
8
9
10
41,335.50
41,335.50
41,335.50
41,335.50
41,335.50
41,335.50
41,335.50
41,335.50
41,335.50
41,335.50
Interest
portion
12,299.76
11,255.91
10,174.53
9,054.28
7,893.75
6,691. 50
5,446.03
4,155.78
2,819.15
1,434.45
prepaYment
Amount
319,974.80
288,638.52
256,322.97
222,997.56
188,630.74
153,189.95
116,641. 63
78,951.18
40,082.91
90.00
B. LATE PAYMENTS. There will be a charge of 1.5% per month based on the
amount of any late paYments.
C. FISCAL YEAR. The Municipality's fiscal period is from July 1 to June
30.
D. PREPAYMENT AND TERMINATION AMOUNTS. The PrepaYment Amount will be due
in addition to and concurrently with the paYment then due.
E. DEFERRED INTEREST TO MATURITY. Deferred interest charges to maturity
are as set forth above.
G. INSURANCE: RISK OF LOSS. As against PCC, Municipality shall bear all
risk of loss or damage to the Equipment until the Equipment is returned to
PCC pursuant to Agreement Article VII or VIII. The Municipality agrees to
hold harmless and indemnify PCC from all liability for damages to the
equipment or personel injury arising out of the use of the Equipment. The
Municipality further agrees to secure self - insurance for the Equipment
for the duration of the Lease term and to complete Exhibit A hereto
describing such self - insurance program.
ORt G\ i\l /', !
I \j fJ\ I...
Schedule No. 2
Agreement 1112
page 2
H. EQUIPMENT DESCRIPTION. The Equipment as defined in the Agreement
includes the following:
EQUIPMENT LIST
Quantitv Description
Serial Number Total Cost
3 Model 320, Automated Refuse Vehicle,
Formula 7000
$ 321,248.68
Subtotal
Sales Tax
Total Financed Amount
$ 321,248.68
$ 20,881.16
$ 342,129.70
THE TERMS GOVERNING THIS SCHEDULE ARE CONTAINED IN THE AGREEMENT REFERENCED
ABOVE AND APPLY WITH THE SAME FORCE AND EFFECT AS IF SET FORTH FULLY
HEREIN. THIS SCHEDULE IS SEPARATELY ASSIGNABLE.
PCC shall not be bound by this Agreement until it is executed by an officer
of PCC.
PACIFICORP, CAPITAL, INC.
CITY OF SAN BERNARDINO
BY:
TITLE:
DATE:
BY:
TITLE:
DATE:
ORIGINAL
EXHIBIT C
AGREEMENT CERTIFICATION
Dated as of: July 1, 1988
Agreement No. 1112
CONTRACT PARTIES
PacifiCorp Capital, Inc.
1801 Robert Fulton Drive
Third Floor
Reston, Virginia 22901-4347
A Virginia Corporation
herein after referred
to as "PCC"
City of San Bernardino
San Bernardino, California
An Agency or political
subdivision of the State
herein after referred to
to as "Municipality"
In accordance with the Schedule No.2, we hereby confirm the following for
the equipment described thereon:
1. USE: The primary uses and applications of the Equipment are as
follows:
2. EQUIPMENT LOCATION: The Equipment is installed at the following
address:
3. INSURANCE: We certify that property damage and liability insurance
has been secured in accordance with the Agreement and such coverage will be
maintained in force for the term of the Agreement. PacifiCorp Capital,
Inc. will be designated loss payee until we are notified, in writing, to
substitute a new loss payee. A copy of the policy endorsement will be
provided.
4. MAINTENANCE: We certify that we have contracted for equipment
maintenance service and will keep such coverage in force for the term of
the Agreement. A copy of the maintenance contract will be provided.
5.
as of
ACCEPTANCE: The first item of equipment is delivered and accepted
FOR:
BY:
Signature
NAME:
Print
TITLE:
ORIGINAL
EXH:IB:IT D
Agreement No. 1112
NO-ARB:ITRAGE CERT:IF:ICATE
Pursuant to Treasury Regulations {1.103-13(a) (2), the City of San
Bernardino (herein called the "Municipality") hereby certifies, with
respect to "PacifiCorp, Capital, Inc. Agreement" dated as of December 4,
1987, Contract No. 1112, Schedule 2 (herein called the "Agreement"), as
follows:
1. The Agreement is being entered into by the Municipality to provide
for the lease of certain equipment (herein called the "Equipment"), by the
Municipality to be used by the Municipality at its governmental offices.
The Agreement provides that under the terms and upon the conditions
provided therein, the Municipality, at its option, may purchase the
Equipment.
2. The Agreement provides that PCC shall lease the Equipment to the
Municipality, and that the Municipality shall pay to PCC semi-annual rental
payments (herein called the "Rental Payments"). As specified in the
Agreement, a portion of each Rental Payment is designated as interest in
accordance with the schedule attached hereto.
3. The Agreement will commence upon the date of acceptance of the
Equipment and will continue until either (i) the Municipality makes all of
the Rental Payments as required by the Agreement, or (ii) the Municipality
exercises the purchase option as set forth in the Agreement and all
interest of PCC or its assigns in the Equipment terminates, or (iii) the
Agreement is otherWise terminated in accordance with its terms, in which
case PCC or its assigns may retain an interest in the Equipment.
4. The Municipality will not receive any proceeds or other
consideration for its payment of the Rental Payments pursuant to the
Agreement other than the use of the Equipment, and it is reasonably
expected that the Municipality will not sell or otherwise dispose of the
Equipment prior to the termination of the Agreement.
5. It is expected that Rental Payments under the Agreement will be
paid from annual appropriations of the Municipality deposited into the
Operating Fund of the Municipality, that such appropriations will equal
Rental Payments during each payment period, and that all amounts paid for
Rental Payments will be from an appropriation made by the Municipality
during the fiscal year in which such Rental Payment is made. No other fund
or account, except as authorized or established pursuant to the Agreement,
will be used directly or indirectly to pay Rental Payments under the
Agreement nor is any other fund pledged as security for the payment of
Rental Payments under the Agreement.
ORIGf~JAL
Agreement No. 1112
NO-Arbitrage certificate
Page Two
6. Nothing in this certificate shall diminish any rights or benefits
of the Municipality under the Agreement.
7. The Municipality agrees that it will not use or permit the use of
the Equipment by any person not an "exempt person" within the meaning of
section 103(b) (3) of the Internal Revenue Code of 1954, as amended, or by
an "exempt person" (including the Municipality) in an "unrelated trade or
business" within the meaning of section 513(a) of said code, in such manner
or to such extent as would result in the loss of exemption from federal
income tax under section 103 of said code of the portion of Rental Payments
designated as interest.
8. The Commissioner of Internal Revenue has not published notice in
the Internal Revenue Bulletin that the Municipality is disqualified and may
not certify obligations under Treasury Regulations {1.103-13(a) (2), nor has
the Municipality been advised that such action is contemplated.
To the best of the knowledge and belief of the undersigned, there are
no other facts, estimates, or circumstances that would materially change
the expectations of the Municipality as set forth herein, and said
expectations are reasonable. The undersigned is an officer of the
Municipality responsible for executing the Agreement and is acting for and
on behalf of the Municipality in executing this certificate.
Dated:
CITY OF SAN BERNARDINO
Municipality
By
Title
ORIGINAL
EXHIBIT E
(To be submitted on Municipality's Letterhead)
ESSENTIAL USE LETTER
Date:
PacifiCorp, Capital, Inc.
1801 Robert Fulton Drive
Third Floor
Reston, virginia 22091-4347
RE: Agreement dated as of December 4, 1987, between PacifiCorp Capital,
Inc. and the City of San Bernardino, Contract No. 1112, Schedule No.2.
Gentlemen:
This letter is being written with respect to the use of the property
(hereinso called) to be sold to the undersigned under the above-referenced
Agreement. The property will be used by
for the following purposes:
(Department or Division Using Equipment)
(state how and for what purposes the property will be used)
The undersigned hereby represents that the use of the property is essential
to its proper, efficient and economic operation.
Very truly yours,
CITY OF SAN BERNARDINO
Municipality
By:
Title:
EXHIBIT F
IRS FORM 8038-G
There are four sections of the IRS Form 8038-G you must
complete as described below:
section 2.
Fill in your employer
identification number (EIN).
section 4.
Fill in the second blank.
This number reflects the
number of Form 8038-G you
have submitted so far this
year.
Signature block.
Remember to include an
authorized signature, the
date, and the title of the
authorized signatory.
PCC has prepared this form and any necessary estimates in
accordance with its understanding of the new IRS policy. To the
extent you are relying on information provided by PCC, we certify
that, to the best of our knowledge, the information is complete
and correct. As timely filing of this tax form is imperative,
please return it at your earliest convenience after acceptance.
Thank you for your assistance and prompt attention to this
matter.
o...~l'PIf"" tt t..... t"U",""
....1'."'"' .,......"...., ~.~t
Information Return for Tax-Exempt
Governmental Bond Issues
. U"II., S.Ch." 1.'1'1
(U" '0.... 1(\)8 C,C " "',,' ,..ct h .."h' "00 000)
O......I!IooI!lOllO
l.~'" 1l-)I-19
f.... 803 8-G
(Ott,"'tl,. 1986)
I '"''''''''''''
Ctlrck bol ,I Amtnded Rt'urn .
I .....-.I.~.. .,...",y'.... .......~
City of San Bernardino
J ...."'"..fIC 111,,1
Purchasing De t.,
. ..,.,,-..
250 Cluster St.
C 19 e ....8...-
6 0.........-
I C.".. ,_ .111. .fIC ,., coo.
San Bernardino, CA 92408
T pf of luue (check bOI(u that appltu)
7
.
,
10
11
12
13
14
15
16
ChfCk bo.lf bondi .rt tll Ofothfr rtvfnut anhCIp'hon boneli.
Chtck bollf boneli Irt in tht fOlm of Iluu or ,nit,IIment nit.
o Eeluutlon .
o Hulth Ind ho\pit.1
o Trln\portl'ion
o PubliC nft'y .
o Environmtnt (Includlnl $tw'lf bonO\)
o Hou\lnl
o Utih\lu
e9 Olhtr Oucr.bf (\te In\'ructIOM).
o
g
...... "'c,
. . .
Administrative
Outription of Bonds
('1
...,.",,1111'
('I
tel
19
20
21
22
23
2~
342,129.84
. I :
Procteds used for Iccrutd Internl .
Procttds used for bond Inv,nCt Cosls (.nCludlng unde~wrlltr~' dIscount)
Procre::ls vstd 10' crtdl: enhancemtnt
Proceeds .lIoc,'td '0 reasonably rtQulrtd rtstryt or rtplact......tn: lund
Proceeds ustd '0 rtfund prior issuts
Nonrtfund.n protteds of Iht 'SSut (sublracll,nrs 20 21 22 .nd 23 from I.nt 18 column Ic )
Oucription of Refundtd Bondi (com Itte th.\ .r' onl for 'ffundln bonch
(nltr Iht rem"nl"l wf.&httd .ytragt mllurlty of Iht bo....~s 10 bt rtlundtd
(nltr Ihf lIS' d,'t on wh,ch Iht rtlunOtd bonds WIll bt calltd
[nltr Iht dalt \ Iht rtfunOtO OO"d\ ...trt .uut:j ~
Mlsct"~nfOUS
2 5 .17
~
~
~ta .~
21 Enlfr tht .mount (If .ny) of Iht ilalt volume cap .1I0Clltdlo 'h.\ 'Uut
29 ~rbllragt rtbltt
. Chrel< bol ,flhe \m.1I &oytrnmtnta1uf\" tlCtPI,or.lo tht arbllragt rtbalt ,tQu,'emtnl apptlu .
b ChtCk bollftht 6.monlh Itmpora') ,n.Ulmtnl tlctpt,on to Iht arbolr.gt rtbalt ItQu,rtmfnl'S tlPtcltd 10 apply
c Chrel< boa If yOu tlptel '0 urn .nC 'tbatt arb,tragt P'O',H 10 Iht U S
30 [nltr tht amount oltht bonds dt\lt~altO by tht 'Hutr unOt. \tCl.on 26S(DX3)(B){II)
J 1 PoOltd f.nanClngs
. ChtCk bolll .ny 01 the procttds of Ih,s 'Uut art 10 bt uud to makt lo,ns '0 othtr lOytrnmen,.1 un,b. 0 .nel
tnltr 'ht amounl ~
b ChtCk bo.., th'i ,nut 1\ alo.n madt flom ItIt procetds of .nOlhel ,al.tatmpt .nut . 0 Ind tnltr tht nlme 01 tht
'nutr ~ .nd 'ht Oalt 01 'hf ,nut ~
.~
n/a
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Here
U"<I" """,," o' "',..', . o.(~"''''1 t ".., ,..""".G ,.... ."",.. '''<I.((~..,..... "_.,,."" IlIlt"'."" ."G ..,.... "I' 01 "', ."')."CI' '''C :>I.'
,...., ...,.... co".o ."" U>'"'P'"'
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EXHIBIT G
SAMPLE OPINION LETTER
TO BE EXECUTED ON COUNSEL'S LETTERHEAD
PacifiCorp, Capital, Inc.
1801 Robert Fulton Drive
Third Floor
Reston, Virginia 22091-4347
Gentlemen:
We are counsel to the City of San Bernardino, (the "Municipality"),
and, in that capacity, we have examined an Agreement, Agreement No. 1112,
(the "Agreement"), and Schedule 2 thereto, between the Municipality and
PacifiCorp, Capital, Inc. ("PCC") dated as of December 4, 1987.
As a result of our examination of the Agreement and such other
examinations as we deemed appropriate, we are of the opinion as follows:
(a) The Municipality is a public body corporate and politic and is
authorized by the Constitution and laws of State of California to carry out
its obligations under the Agreement;
(b) The Agreement has been duly authorized, executed and delivered by
** , and constitutes a valid, legal and binding agreement, enforceable
in accordance with its terms;
(c) No approval, consent or withholding of objection is required from
any governmental authority with respect to the entering into or performance
by the Municipality of the Agreement and the transactions contemplated
thereby;
(d) The entering into and performance of the Agreement will not
violate any judgment, order, law or regulation applicable to the
Municipality or result in any breach of, or constitute a default under, or
result in the creation of any lien, charge, security interest or other
encumbrance upon any assets of the Municipality or on the equipment subject
to the Agreement pursuant to any instrument to which the Municipality is a
party or by which it or its assets may be bound;
(e) The equipment is personal property and when subject to use by the
Municipality will not be or become fixtures under the law of the State of
California;
(f) The Municipality is a political subdivision within the meaning of
Section 103 of the Internal Revenue Code and the related regulations and
rulings and that the portion of payments identified as deferred interest
charges to maturity, upon receipt, will not be includable in Federal gross
income under Statutes, regulations, court decisions and rulings existing on
the date of this opinion and consequently will be exempt from present
Federal income taxes and income tax of the State of California; and
(g) There are no actions, suits or proceedings pending or to our
knowledge, threatened against or affecting the Municipality in any court or
before any governmental commission, board or authority which, if adversely
determined, will have a material adverse effect on the ability of the
Municipality to perform its obligations under the Agreement.
Very truly yours,
**PERSON SIGNING DOCUMENTS
EXHZBZT H
SAMPLE
NOTZCE OF ASSZGNKENT LETTER
Date:
TO: City of San Bernardino
300 North D Street
San Bernardino, California 92418
RE: Agreement dated as of December 4, 1987 between PacifiCorp,
Capital, Inc. and the City of San Bernardino, Contract No. 1112.
Gentlemen:
Please be advised that pursuant to the Agreement, PacifiCorp,
Capital, Inc. ("PCC") is assigning all of its right, title and
interest in, to and under the Lease to:
SAMPLE
All payments and no~ices in connection with the Agreement are to
be sent to:
SAMPLE
with a copy of any notices to PCC.
The terms of the Assignment specify that PCC shall continue to
perform all obligations and duties required of PCC under the
Agreement, and the Assignee shall not be responsible for
performance of any such obligations or duties.
In compliance with section 103(j) of the Internal Revenue Code,
the Municipality agrees to affix a copy of each notification of
assignment to the Municipality's counterpart of the Agreement.
We request that this notice of assignment be acknowledged by
signing in the space provided below and returning a copy to us.
Sincerely,
Phillip G. Norton
President
ACKNOWLEDGED AND AGREED:
CITY OF SAN BERNARDINO
By
Title
Date
EXHIBIT I
Contract No. 1112
INVOICING INFORMATION FORM
Please help us provide a more efficient service to you by completing
the information requested below and returning this form to us along with
the Contract documentation.
1. Invoicing Address:
2. Accounts Payable supervisor:
Name
Telephone
EXHIBIT J
QUESTIONNAIRE ON SELF-INSURANCE
These questions are to be used as a guideline for a description
of the Purchaser's self-insurance program. While a response to
each question is not required, a written statement covering the
areas of concern below would be appreciated.
1) Does the Purchaser intend to self-insure for:
a) damage or destruction to the property;
b) liability for injury (including death) to persons?
2) What are the limits (in dollars) of the liability the
Purchaser proposes to assume for claims under 1) above?
3) Does the Purchaser maintain an umbrella insurance policy
for claims in excess of Purchaser's self-insurance limits
under question 2) above? If so,
a) does the umbrella policy provide all-risk property damage
coverage and coverage for liability for injuries, including
death, to persons?
b) What are the umbrella policy's limits for such property
damage and liability coverage?
4) From what source does the Purchaser obtain funds to pay
its self-insured liabilities?
a) Does the Purchaser maintain a self-insurance fund? If so,
i) Are the monies in this fund subject to annual
appropriations?
ii) What total amount is maintained in the fund to cover
the Purchaser's self-insurance liabilities?
iii) Are amounts paid from the fund subject to limitations
per each claim?
iv) If the Purchaser does not maintain an umbrella pOlicy,
are claims limited only to amounts available in the fund, or
may a claimant pursue other avenues of relief against the
Purchaser?
v) Who or what is the decision making authority for payment
of claims submitted against the Purchaser?
vi) If a claimant receives an adverse decision from the
entity described in 4.a)v) above, does the claimant have
recourse to the courts or to another administrative agency
(i.e. who/what is the authority of last resort for paying a
claim against the Purchaser's self-insurance liability?
b) If the Purchaser does not maintain a self-insurance fund,
from what source(s) does the Purchaser obtain funds to pay
claims against its self-insured liability?
i) What are the limitations and amounts payable for claims
against these funding sources?
ii) Who/what is the entity authorizing paYment from a claim
against the Purchaser's self-insurance liability?
iii) Who/What is the authority of last resort for paying a
claim against the Purchaser's self-insurance liability.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
RESOLUTION NO. 88-272
RESOLUTION OF THE CITY OF SAN BERNARDINO AWARDING A
CONTRACT TO HAAKER EQUIPMENT COMPANY FOR THE FURNISHING AND
DELIVERY OF THE AUTOMATED REFUSE TRUCKS (3 EACH), IN ACCORDANCE
WITH SPECIFICATION F-88-l5.
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AS FOLLOWS:
SECTION 1.
That Haaker Equipment Co. is the lowest and
best bidder for the furnishing and delivering of Automated Refuse
Trucks (3 each), in accordance with specification F-88-l5 for a
total amount of $342,129.84 pursuant to this determination, the
.
Purchasing Agent is hereby authorized and directed to issue a
purchase order for said Automated Refuse Trucks (3 each) to said
lowest and best bidder; ~ucQ purchase order shall include (1) a
term that the City shall have at least 90 days from the date of
acceptance of the bid to arrange financing for the equipment;
and (2) a term that the purchase order is contingent upon the
City obtaining financing that is adequate in the City's sole
18 determination; such award shall only be effective upon the
19
20
21
22
23
issuance of a purchase order by the Purchasing Agent; and all
other bids therefor are hereby rejected.
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
24 18th day of
July
, 1988, by the following vote, to
25
26
27
28
wit:
7-6-88
CRG:cm
1
Resolution
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
of
~ard (" Con tract
He '':er
uipment Co.
AYES:
Council Members Estrada, Reilly, Flores. Maudslev.
Minor, Miller
NAYS:
None
ABSENT:
Council Member Pope-Ludlam
~~~
./ City Clerk
)
The foregoing resolution is hereby approved this ~otL day
Julv
, 1988.
By:
orE
w
, Mayor
Bernardino
Approved as to form
and legal content:
7-6-88
CRG:cm
-; j
Attorney
2