HomeMy WebLinkAbout2011-056
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(IMPORTANT NOTE: COMPANION RESOLUTION 2011-55)
RESOLUTION NO. 2011-56
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT
AND ISSUANCE OF A PURCHASE ORDER TO FAIRVIEW FORD OF SAN
BERNARDINO, PURSUANT TO SECTION 3.04.01O-B3 OF THE CITY OF SAN
BERNARDINO MUNICIPAL CODE FOR THE PURCHASE OF FIVE REFUSE
TRUCKS, TWO FLATBED TRUCKS, ONE BIN CARRIER TRUCK AND AWARD A
LEASE-PURCHASE AGREEMENT TO PINNACLE PUBLIC FINANCE.
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO AS FOLLOWS:
SECTION 1. The City Manager of the City of San Bernardino is hereby authorized to
execute on behalf of said City an Agreement between the City of San Bernardino and Fairview
Ford, a copy of which is attached hereto, marked Exhibit "A" and incorporated herein by
reference as fully as though set forth at length.
SECTION 2. This purchase is exempt from the formal contract procedures of Section
3.04.010 of the Municipal Code, pursuant to Section 3.04.010. B.3 of said Code "Purchases
approved by the Mayor and Common Council".
SECTION 3. That Fairview Ford has offered a purchase price of$I,740,865.25
including tax for (5) Year 2011 AUTOCAR ACX64 chassis and refuse bodies with LNG
conversion, (3) 2011 F-550 chassis with two flatbed and one bin carrier conversions.
Pursuant to this determination the Finance Director or her designee is hereby authorized to
issue a purchase order to Fairview Ford of San Bernardino, in the amount of$I,740,865.25,
which will facilitate the procurement of the (8) vehicles; and award a bid for lease purchase
financing to Pinnacle Public Finance.
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2011-56
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT AND
ISSUANCE OF A PURCHASE ORDER TO FAIRVIEW FORD OF SAN
BERNARDINO, PURSUANT TO SECTION 3.04.010-B3 OF THE CITY OF SAN
BERNARDINO MUNICIPAL CODE FOR THE PURCHASE OF FIVE REFUSE
TRUCKS, TWO FLATBED TRUCKS, ONE BIN CARRIER TRUCK AND AWARD A
LEASE-PURCHASE AGREEMENT TO PINNACLE PUBLIC FINANCE.
SECTION 4. The Purchase Order shall reference this Resolution Number and shall
read, "Purchase of five (5) Year 2011 Autocar ACX64 chassis to include refuse bodies and
LNG fuel conversion, (3) 2011 F-550 chassis to include two flatbed and one bin carrier bodies.
P.O. not to exceed $1,740,865.25" and shall incorporate the terms and conditions of the
Agreement.
SECTION 5. That Pinnacle Public Finance provided the lowest rate quote for the lease-
purchase of a five (5) Autocar ACX64 chassis to include refuse bodies and LNG fuel
conversion, three F-550 chassis with two flatbed and one bin carrier bodies marked Exhibit
"B". Pursuant to this determination the Director of Finance is hereby authorized to execute
lease-purchase documents with Pinnacle Public Finance.
SECTION 6. The authorization to execute the above referenced Purchase Order and
agreement is rescinded if not issued within sixty (60) days of the passage ofthis Resolution.
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2011-56
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT
AND ISSUANCE OF A PURCHASE ORDER TO FAIRVIEW FORD OF SAN
BERNARDINO, PURSUANT TO SECTION 3.04.0IO-B3 OF THE CITY OF SAN
BERNARDINO MUNICIPAL CODE FOR THE PURCHASE OF FIVE REFUSE
TRUCKS, TWO FLATBED TRUCKS, ONE BIN CARRIER TRUCK AND AWARD A
LEASE-PURCHASE AGREEMENT TO PINNACLE PUBLIC FINANCE.
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor
joint
and Common Council of the City of San Bernardino at a regular
meeting thereof, held
on the 7th day of March
,2011, by the following vote, to wit:
Council Members:
AYES
NAYS
ABSTAIN ABSENT
MARQUEZ
~
VACANT
x
BRINKER
x
SHORETT
x
KELLEY
x
JOHNSON
MCCAMMACK
x
~()AU-.Ij. ~~ ~
7' A RX~l~ <tJy Clerk ~!.v.L
~ 171 / ~J.- {ll;j..
The foregoing resolution is hereby approved this day of March ,
2011.
<::B2 ~ /L-=-.
Tobin Brinker, Mayor Pro Tern
City of San Bernardino
A roved as to form:
2011-56
VENDOR SERVICE AGREEMENT
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5 WITNESSETH:
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WHEREAS, the Mayor and Common Council have determined that it is in the best
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8 interest of the CITY to contract for the purchase of five (5) 2011 AUTOCAR ACX64 chassis
9 and refuse bodies with LNG fuel conversion, three F-550 chassis with two flatbed and one bin
10 carrier bodies; and
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This Vendor Service Agreement is entered into this 7th day of March 2011, by and
between Fairview Ford ("VENDOR") and the City of San Bernardino CCITY" or "San
Bernardino").
.
WHEREAS, the City of San Bernardino has determined that vendor possesses the
professional skills and ability to provide said services for the City;
NOW, THEREFORE, the parties hereto agree as follows:
SCOPE OF SERVICES.
For the remuneration stipulated in paragraph 2, San Bernardino hereby engages the
services of VENDOR to provide those products and services as set forth in its proposal dated
December 16,2010, attached hereto, marked Attachment "I" and incorporated herein by this
reference as fully as though set forth at length.
2.
COMPENSATION AND EXPENSES.
a. For the services delineated above, the CITY, upon presentation of an invoice, shall
pay the VENDOR up to the amount of $1,740,865.25 to provide and perform those
products and services described in Section 1 above.
b. No other expenditures made by VENDOR shall be reimbursed by CITY.
Exhibit "A"
-1-
2011-56
3. TERM.
1 The term of this agreement shall be for a period of one (1) year.
2 This Agreement may be terminated at any time by thirty (30) days prior written notice
3 by either party. The terms of this Agreement shall remain in force unless amended by written
4 agreement of the parties executed on or before date of expiration of current term of the
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8 Vendor agrees to and shall indemnify and hold the City, its elected officials, employees,
9 agents or representatives, free and harmless from all claims, actions, damages and liabilities of
10 any kind and nature arising from bodily injury, including death, or property damage, based or
11 asserted upon any or alleged act or omission of Vendor, its employees, agents, or
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subcontractors, relating to or in any way connected with the accomplishment of the work or
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performance of service under this Agreement, unless the bodily injury or property damage was
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actually caused by the sole negligence of the City, its elected officials, employees, agents or
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16 representatives. As part of the foregoing indemnity, Vendor agrees to protect and defend at its
17 own expense, including attorney's fees the City, its elected officials, employees, agents or
18 representatives from any and all legal actions based upon such actual or alleged acts or
19 omissions. Vendor hereby waives any and all rights to any types of express or implied
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indemnity against the City, its elected officials, employees, agents or representatives, with
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respect to third party claims against the Vendor relating to or in any way connected with the
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23 accomplishment of the work or performance of services under this Agreement.
24 5. INSURANCE.
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agreement.
4.
INDEMNITY.
While not restricting or limiting the foregoing, during the term of this Agreement,
VENDOR shall maintain in effect policies of comprehensive public, general and automobile
liability insurance, in the amount of $1,000,000.00 combined single limit, and statutory
Exhibit "A"
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2011-56
6.
NON-DISCRIMINATION.
12940 of the California Government Code.
7.
INDEPENDENT CONTRACTOR.
VENDOR shall perform work tasks provided by this Agreement, but for all intents and
purposes VENDOR shall be an independent contractor and not an agent or employee of the
CITY. VENDOR shall secure, at its expense, and be responsible for any and all payment of
Income Tax, Social Security, State Disability Insurance Compensation, Unemployment
Compensation, and other payroll deductions for VENDOR and its officers, agents, and
employees, and all business licenses, if any are required, in connection with the services to be
performed hereunder.
BUSINESS REGISTRATION CERTIFICATE AND OTHER REQUIREMENTS.
VENDOR warrants that it possesses or shall obtain, and maintain a business registration
certificate pursuant to Chapter 5 of the Municipal Code, and any other license, permits,
Exhibit "A"
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2011-56
qualifications, insurance and approval of whatever nature that are legally required of VENDOR
1 to practice its business or profession.
2 9. NOTICES.
3 Any notices to be given pursuant to this Agreement shall be deposited with the United
4 States Postal Service, postage prepaid and addressed as follows:
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TO THE CITY:
Public Services Director
300 North "D" Street
San Bernardino, CA 92418
Telephone: (909) 384-5140
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8 TO THE VENDOR:
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12 10.
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Fairview Ford Sales Inc.
808 West 2nd Street
San Bernardino, CA 92412-5516
Telephone: (909) 386-0281
Attn: Todd Eff
ATTORNEYS' FEES
In the event that litigation is brought by any party in connection with this Agreement,
14 the prevailing party shall be entitled to recover from the opposing party all costs and expenses,
15 including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of
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its rights or remedies hereunder or the enforcement of any of the terms, conditions or
provisions hereof. The costs, salary and expenses of the City Attorney and members of his
19 office in enforcing this Agreement on behalf of the CITY shall be considered as "attorneys'
20 fees" for the purposes of this paragraph.
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ASSIGNMENT.
VENDOR shall not voluntarily or by operation of law assIgn, transfer, sublet or
encumber all or any part of the VENDOR's interest in this Agreement without CITY's prior
written consent. Any attempted assignment, transfer, subletting or encumbrance shall be void
and shall constitute a breach of this Agreement and cause for the termination of this
Agreement. Regardless of CITY's consent, no subletting or assignment shall release VENDOR
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Exhibit "A"
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2011-56
of VENDOR's obligation to perform all other obligations to be performed by VENDOR
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hereunder for the term of this Agreement.
12. VENUE.
The parties hereto agree that all actions or proceedings arising in connection with this
Agreement shall be tried and litigated either in the State courts located in the County of San
Bernardino, State of California or the U.S. District Court for the Central District of California,
Riverside Division. The aforementioned choice of venue is intended by the parties to be the
mandatory and not permissive in nature.
13. GOVERNING LAW.
This Agreement shall be governed by the laws of the State of California.
14. SUCCESSORS AND ASSIGNS.
This Agreement shall be binding on and inure to the benefit of the parties to this
Agreement and their respective heirs, representatives, successors, and assigns.
15. HEADINGS.
The subject headings of the sections of this Agreement are included for the purposes of
convemence only and shall not affect the construction or the interpretation of any of its
provisions.
16. ENTIRE AGREEMENT; MODIFICATION.
This Agreement constitutes the entire agreement and the understanding between the
parties, and supercedes any prior agreements and understandings relating to the subject manner
of this Agreement. This Agreement may be modified or amended only by a written instrument
executed by all parties to this Agreement.
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Exhibit "A"
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2011-56
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VENDOR SERVICE AGREEMENT
FAIRVIEW FORD SALES INC.
.
IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day
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and date set forth below.
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Dated:
,2011
Fairview Ford Sales, Inc.
By:
9 Dated
,2011
CITY OF SAN BERNARDINO
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By:
Charles E. McNeely, City Manager
Approved as to Form:
By:
James F. Penman, City Attorney
Exhibit "A"
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2011-56
Attachment "1"
Fairview Ford Sales, Inc.
P.O. Box 5518
SAN BERNARDINO, CAUF. 112412
Telephone11lO1I1884-8281
-
.
December 16,2010
City of San Bernardino
Fleet Division
182 S. Sierra Way
San Bernardino, CA. 92408
RE: Purchase of (5) Autocar Refuse Trucks
Dear Mr. Johnson.
Here Is the breakdown for the above rilfilr!lncellpurchase:.
1
Roll Off@ $221,712.00 each.
Front Loaders @ $282,6~9.00 each.
Autoloaders @ $345,600.00 each.
$221,712.00
$565,298.00
$691,200.00
2
2
Doc and Handlin9 Fee
$2250.00
------------------------------------------------------.-
TOTAL
$1,480,460.00
Fed Excise Tax
$133,241.40
EXEMPT
$375.00
$105.00
Sales Tax (9%)
DMV
Ca. Tire Fee
---------------------------------------------
GRAND TOTAL
$1,614,181.40
Thank you for this opportunity,
~Y""~
Todd Eff
Commercial Fleet Manager
Fairview Ford
:,
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2011-56
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City of San Bernardino
Public Services Department
Fleet Division
Autoear New Truck
EDhanced WarraDty/Serviee Package
-~ FOCa"iifi\Qifof~~ifrol!l~~~eni.~OOVi8d~le
repairs ~ (tMt lItO"f'...._.~f~li{ltod l&the l~lIWlIAduIer)wi1I
be~l'llpaiRd.at:.~.by .. ..or,picbdup,
repaired m:l4e~ bOtUtillJolliliJUHiby . . ..,91",
IOwed:to . :: ....AlpaiteIi. ~.~~ s1PmIl,,&
aod I oc Wwini fur dilt ~.rfpir&wiI1 be at t/O.ClOlIt 1i! tho aaslomer. In the .
event that the ~~ n:paU- is d4loied ~ 6ODlpelI.S8tion by the l'OSpOQlive
""'..._.... tban the Cost &r1lie-provided ~ will be billed to the WIli9mer.
All ded8iouB w-niug wbdherlio tqI8ir at ~ site, abuUIo die uoit or tow
will be UllIdo at the aoledi-....... of . 1.'his ~
~Iios 10 aU ~ Cbaai8.... po1I'll[ traio ~ LNG fi1eI sy8lelD, and
~ lA8k DelocIioa SyatemlI ad is Iimitocl~tbtduAliDa of the ......dj
covegjebythe.~ OHM. Note: Tho ndhH ~body. itsc:outro1s
_acr- .....DDtw.Io......CJl'''''.e...dbydliaPII... ID .
> '11IeM'dhmot Leak~S)"""UIl tho~-wiIlbe~ It the
~ . ,--"- . . of""-- . . daDcO-"'-CDP
_...~ lI............,a............ __UIIlIl8J1Cl1'JS'm- ......
cillo 13 ~-.,.;U 81111 a "V.tid.tW. Form" lbrm ~ fur llIIYoomplilat
vebide. T11i118<<vico wDl be .-ilo..ucxIby JlfV fftl1 >mla? .. '(or...-seat
~ by )lIIIlI will u:tatthePmdlaloDMofthewbid,oud
.....4i.... tbr a ~ period. Tbn will be no IlOICfIo the 0utl000il &it- the
iupoclioolI.
)> 10101: IbOuttwD ~ ftom tho purdIalIe oftbe wbide. tbQ lNGtaDkwiU be "reo
'VlICI.I\IIlMld. Thiucrvice will be .-(Ollllll.d by AHI Pf,.Jj rHiA rK- ". (or an
~ lIppOioIedby ... -) III 110 COItflodaew..........tbrtho"reo'VllC..
prooadure. -~--_...- .... - -
AFV Scott Lucero
GeoornJ Manage"
FLEET SERVICE
A #All IlIfiMdTI_ C1luntnmY
otherLDt.'aliUflS:
Armiskm, AL
(A77) 520.BQ90
Nashville, TN
(615)301-530(]
f4642 Rancho Vista D~
Ftmtana CA, 92335
T9/; (909j 35O.750Q
Fux: (909) 350-1J852
Cf!U: (909) 9178026
sltlcl'lro@fabind_GDlrI
1D'!'JW.(~]l1
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11/29/2010 17:15
9093860292
, I
2011-56
VAL EFF
PAGE 02
t
~/5j)
..
J!AIllVIEW WRD
FLEET&: TRUCK CENTER
101 W. ZIId S'I'IlDT.
p.o. JosS51'
SAN URNARDINO, CA. fZ.4U
(909) 386-0281 or I'u: (909) 386-0%92
-:>
11f29/10 12,52,25
Dealerl F71156
Page' 1 of 2
Om.r fype, .58 l'dce LAvell 130
I!O \IIUlIlbltr;
VEHICU: OIUIER aJIlrIIlIIATIOII
2011 r-SERIES so
order 110; 0000 'rioritYI A3 Ord n.: QC414
O~ PEP, 660A CllIIttrlt \II....., CITY OF SB
RETlIIL
FSG r550 412 CHAS/C $33515
201. lfIII!"r.~E
Zl OXFORD lIHITE
A VIIYL 40f20/40
S S~
66010 PREr EQlJIP PIlG
.XL TRIll
572 .AIR CONDITIONER
.JlK/ni1 STetVCJ,K
99Y 6.BL ErI VI0 Ell
44T 5-SI'D A~TIC
Tn .225 BS1r AS 19.5
XBL 4.88 LTD SLIP 360
. 68K PAYLIl l'LIlS lllGR 1155
195001 G'ilIR l'KG
-:>
90L
RETAIL
PWR 1IQIIIl' GROUP $850
TEL!: TT IIIR-PIIIl
JOB 12 BUILD
IIllLDIlD 8LX STEP
50 STATE ~SS
SI'ARIl TI.BE/lIIILQ
JJ\CJt
18B
425
320
IlC
350
IIC
61J
MC
IIC
HC
TOTAL 811SE AIID OPTIOIIS 37525
TOTAL 37525
11/29/10 12:52,32
o.aler, J'l1156
l'aqe; 2 of 2
Order Typel 58 Pd... Lave1, 130
1'0 lhlllb.~;
VEHICLE ORDER COIII"IRlfATIOII
Order 1101
Ord PEP'
2011 r-SERIES SD
0000 Prior11:YI 103 Om FIR: QC414
660A.Cuet/Flt Il_' CIrY or SB
RETAIL
HC
65Z
794
An" AXLIl _
l'RICE COIICESSII
RDWOOl 'r1lAILER
SP DLR llCCT JlDJ
81' rLT ACC'1' CR
rut.L CIIIIRGE
)1ft INV FLT AlPT
l'IUCED DllIUl,
DEST ARD DELIV
8410
RETAIL
IIC
IlC
97S
TOTAL BAS'.: ARO OP'rIOllS 37525
TOTAL 3J525
,
(,
11/29/2010 17:15 9093860292
---- -... ..... .v......u I II "'L,..'''I U"\.,,
2011-56
VAL EFF
OO9Iln11 00
PAGE 03
p.3
HREMInc.
Estimate
11=\0 I 7-'
-,-
CrrY OF SAN1JERNA\lDINO
Il2llOU1'H SIEIOA WAY
SAN BEaNAIIDQlO CA.924Oll
""'i'd
...... CeIctljlIIDn ~ Caet T.IIII
REMOvE WOOD STAlmllODV FROfo4 5llRvlCE TRucK~ OJlO o.lM1I'
AND lNST"U._ 0I\l NEW I'OllD TR.Uo:.
..
/lEPV.Ql NEW WOOD STAK69 0.00 0Jl0T
. 1'IIlW BllOPAlNT 1 O.llO Q.OOT
NEW MA11!IUAL 1 3,31D.OO 2,JIIO.OOT
lABOR l-^IlOll REPAIR ~ 4lI.GO 2,640.00
'1I'AR1lANIY AU. OUR JU:PAIIl5lJAVIl6 MONTIl WAlUlAN'fY 0.00 OJlO
ON MOIlN:.\L USS.,TIIIS WAAKANl'Y DOESlfOT
COV!lll. wmuamiCl! Olll'OOk~ANCJ;
REPNll Oi"flONAL CHA55IS S11IECH I 1,100.00 t,~.OO
.
We____fOe_1I SubtDtal
Sll,DlJlO
Sa'" Tax (8.0"") S214~
Total ST,r04.20
(
!MllI Miller O~..... . Colton, CA 82324
0flI0e (909) 872-1195 . (909) 872-1112' Fax (909) 812-1100
1
11/29/2610 17:15 9093860292
FAIRVIEW FORD - RETAIL - Work Sheet
Custooer:
Hane Phi:
Work. Phi:
Salespsn:
2011-56
VAL EFF
PAGE 64
~5D 11-29-10
P"""_-
Stock. #: <NEW>
purchase;
Trade-In; N/A
Bank.
Price
Accessories
Sales Tax
Service Agreement
Cash Price
IJ4V
Ti re Fee
Insurance Premiums
Total Purchase
Trade- In
Less Pay-Off
Net Trade- In
Deferred D<wt
MIount Pai d Na<<
Total OlWlpayment
Pmunt Financed
36.697.00
.00
3,302.73
.00
39,999.73
.00
12.25
.00
40.011.98
.00
.00
.00
.00
.00
.00
40,011.98
CUSTOMER'S ACCEPTANCE
~
11/29/2616 17:15
9693866292
2011-56
VAL EFF
PAGE 65
"
@
FAIRVlEWFORD
FLEET '" TRUCK CENTER
_ W. W S'l1IDT.
..0. Jod51'
SAN 8J:RHAIlDINo. CA. tZ41Z
(909) 386-0%81 or Fa: (909) 386-0Z92
->
VEKICLt 0It0EIl COII"I1lIIIITIOll
2011 F-SERIES SO
order lIo: 0000 'dority: A3 Ord "Ill: QCCt.
Ord PEP: 1I110A CUrt/nt .11_: CITY OF SIl
.IlETlIIL
FSG l!'550 4X2 CIWI/c U3515
201- IlIIIi!ll!TRUE
11 OXFORD 'WHIT.
A VNYL 40/20/40
S STIEL
660A pur tlQUIP PJIG
.XL TRIM,
572 .AIR COlfDITIC*ER
.JIM/III 81'RlVCLIt
!l9Y 6.8L En flO Ell
44T 5.91'0 All'1'<IUlTIC
Tn .225 IISIf AS 19.5
X8L 4.88 LTD SLIP
till. PAnD PLllS O~
19500. GVWR PKD
->
VIllICI.E OlUlt:R COIIn_TIOll
2011 F-SERIES 110
0000 Pdority: AJ Ord FIR: QC414
660A CUlI't/Flt _: CITY OF S8
RftllIL
ICC
Order No:
Ord ftp,
651
794
AFT IlXU TANK
PIIICE COlfCltSSN
-.uta TllAILER
81' . DLR N::Cf ADJ
SP FLt ACO' CIl
i1IIlL CHI\llG&
Nft IRV Fl.'!' oft
. 1'RICED DOM
DI:Il'1' AIID DELIV
14A
TOTAL 1Wlf: AIID OP1'IClIIS 37525
TOTAL 31525
. 11/29110 12:53:49
IINl.r, r7nSti
P&g1t, 1 of 2
On.r ~: '58 I'd"" LImIl: 130
PO Wulober:
90L
IlETAIL
PWR I!lQUI. GAOl!p 8850
TELl T'l' 1fIR-l'WR
JOB f2 WILD
N'JL!lI:D ILk lITEr
50 lI'1'ATJ: J:NISS
8.AIUl TIRE/lIIILQ
JACK
18B
425
320
lie
350
IIC
II1J
Ne
He
Me
TOTAL IIlIS& AND llP1'1OIIS 37525
TOTAL 37525
360
1155.,
11/29/10 12:53:56
Dealer: F7115ti
.ag.: 2 of 2
Order Type: 5. 'r1ce Level: 130
1'0 Nud>er:
RETAIL
He
IlC
97S
'I
2011-56
11/29/2616 17:15 9693856292
..~. ~~ ,"" .v.UUC6 IU\.L.I"U"I..I
VAL EFF
llUWllnl 1 UU
PAGE 65
p,2
HRBM IDe.
Estimate
11:10 I ~::- I
Name} Add!.-
aTY OF !WI BIlDIAIWlNO
JI1IiOU1l1 SIIlbA WAY
SAN IIEII!lAaJ)INO CA 92>401
Pftljoct
.
110m .Jj"~l' ., QIy C.. TomI
&aMOVE WOOl!!lIAXE 80PV FllOM _VICE 1Jl{JCIC.~) o.ao O.OOT
ANI> INSTALUllJ ON NEW fllIlI) nucK
1lIlPlACt: NIlWWOOl!sr~ 0.00 Cl.lXIT
~CE NEW HYDIlAliUC MOJ'OR o.go O.ooT
Rl!PAlll I:lACKll5O W/NEW uWrrs . o.go 0.00
Nf;W BED PAlNI' .. O,go O.ooT
NEW MATI!RlAL J 2,MSJIO 2,9"',OOf
LABOIt. LAlIOIl Rllt'Alll ~ (LOll 3,120.00
WARRANTY AU OUR REPAIllS llAVll6 M()IIl1'lf ...ARRANlY 0.00 OJlO
ON NORMAL USE. TJIIS wAllMNTYDOBSNOT
COVERlillGLlllENCE OR I'OOII.~
lUiP.A1R OPTIONAL CRAllSlS!'I1U!CH ] 1.100.00 1,100.00
i.
W.~._bIIIioowlm Subtotal
$1,Ili'I.OO
..... Tax ('.0%) $26'1,05
Total $1,1"',05
1~5 Mllleo- Oo1ve . Colton, CA 923Z4
0ftic8 (9011) 872-1195' {llO8)872-1112' FiIX (909) 872-1100
10
11/29/2010 17:15 9093860292
2011-56
VAL EFF
Stock. #: <NEW>
Purchase: .
Trade-In: N/A
Bank.
FAIRVIEW FORD - RETAIL - WOrk. Sheet
Custaner:
Heme Phi:
work. Phi:
Salespsn:
PAGE 07
IH9-10
Price
Accessories
Sales Tax
Service Agreement
Cash Price
[JoIV
Tire Fee
Insurance Premiums
Total Purchase
Trade-In
Less Pay-Off
Net Trade-In
Deferred O<wl
Nnount Paid NON
Total Olwlpayment
Amount Financed
37.697.00
.00
3,392.73
.00
41,089.73
.00
12.25
.00
41.101.98
.00
.00
.00
.00
.00
.00
41,101.98
CUSTQ\o1ER'S ACCEPTANCE
11.
11/29/2010 17:15
2011-56
9093860292
VAL EFF
PAGE 08
"
0!53)
I'AIllVIEW I'ORD
JI'LDT 4 TRUCK CENTER
_ w.w SJ.'UIT'
, ..0... 551'
&\N' B:IIPlAIlDlNo. CA.. n41Z
(909) 386-0%81 ,or Fa:~) 386-0291
B4A
V!:lIICLI: 0IUlI!1l. COIII'INIIlIl'It*
->
11/29/10 12:55:57
OUler, M11S6
Page: 1 of 2
OJ:der 'l'ype, 5B Price Level. 130
l'O HIlIaber..
2011 r-SKRIES so
Order No: 0000. Pdodty: 113 Ord nil, QC414
Ord PEP: 660A Cuat/nt 11_: CITY or 58
RlTAIL
rsa r5S0 4X2 CHAS/e '33440
90L
RE'rlUl.
PWlI IlQIIIP GROUP 'S50
'l1:L& '1'T lIIa-PWlI
.roB .2 BUILD
IIOJ.DBD JILl( STEP
50 8'1'A'l'I: EIlISS
SPAIQ; TIRE/lIIILQ
JI\Cl(
11
A
8
660A
189.......TII\8B
0lU'0IID lllIUIl
VJln. 40/20/40
STEEL
l'llEF EQUIP PlIG
. XL 'l'IlIII
.Ala OONoi1'IQlSR
.1\II/fN 9T1lVCLIC
6.'L EPI no EN
5-8PD IW'faCATIC
;225'1IllW AS 19.5
4.88 L1'O SLIP
PAYLD PLUS DPGII
19500. GVWa PIG
360
1155
18B
425
320
lie
350
lIC
61J
572
lie
'IIC
IlC
'1'OTAL IlAS!: Qo OPTIOIlS 37730
TOtAL 37730
99Y
441'
TFII
XSL
68M
->
VEIIIctII: 0IIIlf:Il ~r;r_T1011
Order 110:
Ord I'IlP,
2011 r-SIRZES so
0000 Pdodty: 113 0nI nN: QCt14
660A CUat/rlt; -.-. Cm OF S8
RnlUl.
$280
lie
11/~9/10 12:56:35
OUler, "1156
Page. 2 of 2
OJ:der ryPe, 5B P"lce LeYeI' 130
l'O .......r.
ll&'.I'lUL
62R
651
794
'l'RlINS PTO p_
Arr AXU 'l'lIIIK
PRICE talCESllII
RatlUucs TIWLIR
SP. DtR llCCT ADJ
sP I'LT JlCCT CJl
IVI:L CIIlUIGz I
IIET IllY 1'L'l' OPT
PIUcmJ D01iA
IlSST ARo DlLIV
IIC
IIC
975
'1'O'l'llL IlA8.t JUfo Ol'TIOIIB 3~130
TOTAL 37730
.1..:;l
2011-56
11/29/2010 17:15 9093860292
-- .- .........,.. '''''I....IYIII.V
VAL EFF
9098nll00
PAGE 09
p.2
HREMJnc.
Estimate
11:10 I e.;' 1
.
.....1 Ad,*-
CITY Of SAKllIlItNAIUlINO
112 !Illf.rJ'lI1Il!R.RA WAY
IAN 1lI!RXARDINO CA IQlGI
t*I I'\qecI
Item """'-" QI1f' 00lIt TaW
NEW J IIOXIllI BJN.CAKIIIER 800Y MOUNIEJ) ON '50 1 0..00 o.OClT
FORD TR.UClC. .:.
New COIIIPLE"IU 8<iDY I 0.00 O.fl(ll'
1NST ALl. 'U!lED tIP-OOWN Jlol:OUT I 0.00 O.oar
C\Itlli);K Il8$MBLIl W/CYLINDERS
NEW MATDJAL 1 4,800.01) 4,1OO.00r
LABOR ~1l1UlP"]1l. 1411 4&.00 5._00
WAJUV.KrY IdL OUR ItI!PAIRS IIAV8.' NOKrH WAIlAA"-"'I'Y 0.00 O.llO
ON N01lMAL USI!. 11lI5 willuv.lm' Dal5 NOT
COVEl. ~1lCIl.klIDICll OB. POOIlJllAlN1EN-"1'ICE
W..--,...,_III SubtDfal $1I,7fiO.00
..... T8X (I.ft) suz.oo
Total $'2,1:12.00
53
1485 MlI8t Drive . Colton, CA 92324
0ffIee (llOll) 872-1196' (909lsn.1112. Fill< (9011) 872-1100
13
11/29/2010 17:15 9093860292
2011-56
VAL EFF
FAIRVIEW FORD - RETAIL - Work. Sheet
Custaner:
Hane PhI:
Work. Phi:
Salespsn:
Stock. #: <NEW>
Purchase:
Trade- In: N/A
Bank ;
PAGE 10
~3) 11-29-10
Price
Accessories
Sales Tax
Service Agreement
Cash Pri ce
IJoIV
Tire Fee
Insurance Premiums
Total Purchase
Trade- In
Less Pay-Off
Net Trade- In
Deferred [)(wI
~unt Paid NOfI
Total Olw1payment
MIount financed
41.796 .00
.00
3.761.64
.00
45.557.64
.00
12.25
.00
45.569.89
.00
,00
.00
.00
,00
.00
45.569.89
CUSTOMER'S ACCEPTANcE
1'1
-
... Pinnacle Public Finance
ABankUnited Company
2011-56
MASTER EQUIPMENT LEASE PURCHASE AGREEMENT
This Master Equipment Lease Purchase Agreement dated as of March I 1,2011 and entered into between Pinnacle Public Finance,
Inc., a Delaware corporation ("Lessor"), and City of San Bernardino, a body corporate and politic existing under the laws of the
State of California ("Lessee"),
1. Al!reement. Lessee agrees to lease from Lessor certain
"Equipment" as described in each Equipment Schedule (Exhibit
A), which together with a Rental Payment Schedule (Exhibit A-
I) constitute a "Schedule", subject to the terms and conditions
of and for the purposes set fOlth in each Lease, Items of
equipment may be added to the Equipment from time to time by
execution of additional Schedules by the parties hereto and as
otherwise provided herein, Each Schedule and the terms and
provisions of this Agreement (which includes all exhibits
hereto, together with any amendments and modifications
pursuant thereto) which are incorporated by reference into such
Schedule shall constitute a separate and independent lease and
installment purchase of the Equipment therein described and are
referred to herein as a "Lease".
2. Term. The "Commencement Date" for each Lease is the
date when interest commences to accrue under such Lease
which date shall be the earlier of (i) the date on which the
Equipment listed in such Lease is accepted by Lessee in the
manner described in Section I 1, or (ii) the date on which
sufficient monies to purchase the Equipment listed in such
Lease are deposited for that purpose with an escrow agent, or
(iii) the date sufficient monies are set aside for acquisition of
Equipmem as evidenced in Exhibit D, if applicable, The
"Lease Term" for each Lease means the Original Term and all
Renewal Terms therein provided and for this Agreement means
the period from the date hereof until this Agreement is
terminated, The "Original Term" means the period from the
Commencement Date for each Lease until the end of Lessee's
fiscal year or biennium (as the case may be) (the "Fiscal
Period") in effect at such Commencement Date, The "Renewal
Term" for each Lease is each term having a duration that is
coextensive with the Fiscal Period, ,
3. Reoresentations and Covenants of Lessee. Lessee
represents, covenants and warrants for the benefit of Lessor on
the date hereof and as of the Commencement Date of each
Lease as follows: (a) Lessee is a public body corporate and
politic duly organized and existing under the constitution and
laws of the State with full power and authority under the
constitution and laws of the state where the Lessee is located
("State") to enter into this Agreement and each Lease and the
transactions contemplated hereby and to perform all of its
obligations hereunder and under each Lease; (b) Lessee has
duly authorized the execution and delivery of this Agreement
and each Lease by proper action of its governing body at a
meeting duly called and held in accordance with State law, or
by other appropriate official approval, and all requirements
have been met and procedures have occurred to ensure the
validity and enforceability of this Agreement and each Lease:
(c) Lessee will do or cause to be done al1 things necessary to
preserve and keep in full force and effect its existence as a body
corporate and politic; (d) Lessee has complied with such public
bidding requirements as may be applicable to this Agreement
and each Lease and the acquisition by Lessee of the Equipment
as provided in each Lease; (e) during the Lease Term, the
Equipment will be used by Lessee solely and exclusively for the
purpose of performing essential governmental or proprietary
functions of Lessee consistent with the permissible scope of
Lessee's authority; (f) Lessee will annually provide Lessor with
current financial statements, budgets, proof of appropriation for
the ensuing Fiscal Period, and such other financial infonnation
relating to the ability of Lessee to continue each Lease as may
be requested by Lessor; and (g) Lessee has an immediate need
for the Equipment listed on each Schedule and expects to make
immediate use of the Equipment listed on each Schedule,
4. Tax and Arbitrage Reoresentations. Lessee hereby
represents as follows: (a) the estimated total costs of the
Equipment listed in each Schedule will not be less than the total
principal portion of the Rental Payments listed in such Rental
Payment Schedule; (b) the Equipment listed in each Schedule
has been ordered or is expected to be ordered within 6 months
of the Commencement Date, and all amounts deposited in
escrow to pay for the Equipment, and interest earnings, win be
expended on costs of the Equipment and the financing within 3
years of Commencement Date; (c) no proceeds of any Lease
will be used to reimburse Lessee for expenditures made more
than 60 days prior to the Commencement Date or, if earlier,
more than 60 days prior to any official action taken to evidence
an intent to finance; (d) Lessee has not created or established,
and does not expect to create or establish, any sinking fund or
similar fund (i) that is reasonably expected to be used to pay the
Rental Payments, or (ii) that may be used solely to prevent a
default in the payment of the Rental Payments; (e) the
Equipment listed in each Schedule has not been and is not
expected to be sold or otherwise disposed of by Lessee, either
in whole or in part, prior to the last maturity of Rental
Payments: (f) Lessee will comply with all applicable provisions
of the Internal Revenue Code of 1986, as amended ("Code"),
including without limitation Sections 103 and 148 thereof, and
the applicable regulations of the Treasury Department to
maintain the exclusion of the interest components of Rental
Payments from gross income for purposes of federal income
taxation; and (g) Lessee intends that each Lease not constitute a
"true" lease for federal income tax purposes.
5. Lease of Equioment. Upon the execution of each
Lease, Lessor demises, leases, transfers, and lets to Lessee, and
Lessee acquires, rents, leases and hires from Lessor, the
Equipment in accordance with the terms thereof. The Lease
Term for each Lease may' be continued, solely at the option of
Lessee. at the end of the Original Term or any Renewal TenT!
for the next succeeding Renewal Tem up to the maximum
Lease Term "set forth in such Lease. At the end of the Original
Tenn and at the end of each Rene\val Tem the Lease Term
EXHI13fr ;'{3"
shall be automatically extended upon the successive
appropriation by Lessee's governing body of amounts sufficient
to pay Rental Payments and other amounts payable under the
related Lease during the next succeeding Fiscal Period until all
Rental Payments payable under such Lease have been paid in
full, unless Lessee shall have terminated such Lease pursuant to
Section 7 or Section 22. The tenns and conditions during any
Renewal Term shall be the same as the terms and conditions
during the Original Term, except that the Rental Payments shall
be as provided in the applicable Lease. .
6. Continuation of Lease Term. Lessee currently intends,
subject to Section 7, to continue the Lease Tenn of each Lease
through the Original Term and all Renewal Terms and to pay
the Rental Payments thereunder. Lessee reasonably believes
that legally available funds in an amount sufficient to make all
Rental Payments during the maximum Lease Term of each
Lease can be obtained. Lessee currently intends to do all things
lawfully within its power to obtain and maintain funds from
which the Rental Payments may be made, including making
provision for such payments to the extent necessary in each
budget or appropriation request submitted and adopted in
accordance with applicable provisions oflaw. Notwithstanding
the foregoing, the decision whether or not to budget and
appropriate funds or to extend the applicable Schedule for any
Renewal Term is within the discretion of the governing body of
Lessee.
7. Nonannrooriation. Lessee is obligated only to pay
such Rental Payments under each Lease as may lawfully be
made from funds budgeted and appropriated for that purpose.
Should Lessee fail to budget, appropriate or otherwise make
available funds to pay Rental Payments under any Lease
following the then current Original Term or Renewal Term,
such Lease or Leases shall be deemed terminated at the end of
the then current Original Term or Renewal Term. Lessee
agrees to deliver notice to Lessor of such termination at least 30
days prior to the end of the then current Original Term or
Renewal Term, but fililure to give such notice shall not extend
the term beyond such Original Term or Renewal Term. If any
Lease is terminated in accordance with this Section, Lessee
agrees to peaceably deliver the Equipment to Lessor at the
location(s) to be specified by Lessor.
8. Conditions to Lessor1s Performance. This Agreement
is not a commitment by Lessor to enter into any Lease not
currently in existence, and nothing in this Agreement shall be
construed to impose any obligation upon Lessor to enter into
any proposed Lease, it being understood that whether Lessor
enters into any proposed Lease shall be a decision solely within
Lessor's discretion. Lessee will cooperate with Lessor in
Lessor's review of any proposed Lease. Lessee understands that
Lessor requires certain documentation and information
necessary to enter into any Lease and Lessee agrees to provide
Lessor with any documentation or information Lessor may
request in connection with Lessor's review of any proposed
Lease. Such documentation may include, without limitation,
documentation concerning the Equipment and its contemplated
use and location and documentation or information concerning
the financial status of Lessee and other matters related to
Lessee.
2011-56
9. Rental Pavments. Lessee shall promptly pay "Rental
Payments" as described in Exhibit A-I to each Lease,
exclusively from legally available funds, to Lessor on the dates
and in such amounts as provided in each Lease. Lessee shall pay
Lessor a charge on any Rental Payment not paid on the date such
payment is due at the rate of 12% per annum or the maximum rate
permitted by law, whichever is less, from such date until paid.
Rental Payments consist of principal and interest portions. Lessor
and Lessee understand and intend that the obligation of Lessee
to pay Rental Payments under each Lease shall constitute a
current expense of Lessee and shall not in any way be
construed to be a debt of Lessee in contravention of any
applicable constitutional or statutory limitarion or requirement
concerning the creation of indebtedness by Lessee, nor shall
anything contained herein or in Q Lease constitute a pledge of
the general tax revenues, funds or monies of Lessee.
10. RENTAL PAYMENTS TO BE UNCONDITIONAL.
EXCEPT AS PROVIDED IN SECTION 7, THE
OBLIGATIONS OF LESSEE TO MAKE RENTAL
PAYMENTS AND TO PERFORM AND OBSERVE THE
OTHER COVENANTS AND AGREEMENTS CONTAINED
IN EACH LEASE SHALL BE ABSOLUTE AND
UNCONDITIONAL IN ALL EVENTS WITHOUT
ABATEMENT, DIMINUTION, DEDUCTION, SET-OFF OR
DEFENSE, FOR ANY REASON, INCLUDING WITHOUT
LIMIT A TION ANY F AlLURE OF THE EQUIPMENT TO BE
DELIVERED OR INSTALLED, ANY DEFECTS,
MALFUNCTIONS, BREAKDOWNS OR INFIRMITIES IN
THE EQUIPMENT OR ANY ACCIDENT,
CONDEMNATION OR UNFORESEEN CIRCUMSTANCES.
11. Deliverv: InstaUation: Acceotance. Lessee shall order
the Equipment, cause the Equipment to be delivered and
installed at the location specified in each Lease and pay any and
all delivery and installation costs in connection therewith.
When the Equipment listed in any Lease has been delivered and
installed, Lessee shall immediately accept such Equipment and
evidence said acceptance by executing and delivering to Lessor
an Acceptance Certificate (Exhibit B). Lessor shall provide
Lessee with quiet use and enjoyment of the Equipment during
the Lease Term.
12. Location: Inspection, Once installed, no item of the
Equipment will be moved from the location specified for it in
the Lease on which such item is listed without Lessor's consent,
which consent shall not be unreasonably withheld. Lessor shall
have the right at all reasonable times during regular business
hours to enter into and upon the property of Lessee for the
purpose of inspecting the Equipment.
13. Use: Maintenance. Lessee will not install, use, operate
or maintain the Equipment improperly, carelessly, in violation
of any applicable law or in a manner contrary to that
contemplated by the related Lease. Lessee shall provide all
permits and licenses, if any, necessary for the installation and
operation of the Equipment. In addition, Lessee agrees to
comply in all respects with all applicable laws, regulations and
rulings of any legislative, executive, administrative or judicial
body. Lessee agrees that it will. at Lessee's own cost and
expense, maintain, preserve and keep the Equipment in good
repair and working order. Lessee will enter into a maintenance
contract for the Equipment that is acceptable to Lessor.
14. Title. Upon acceptance of the Equipment under a Lease
by Lessee, title to the Equipment shall vest in Lessee subject to
Lessor's rights under the Lease; provided that title shall
thereafter immediately and without any action by Lessee vest in
Lessor, and Lessee shall immediately surrender possession of
the Equipment to Lessor, upon (a) any termination of the
applicable Lease other than termination pursuant to Section 22
or (b) the occurrence of an Event of Default. Transfer of title to
Lessor pursuant to this Section shall occur automatically
without the necessity of any bill of sale, certificate of title or
other instrument of conveyance. Lessee shall, nevertheless,
execute and deliver any such instruments as Lessor may request
to evidence such transfer.
15. Security Interest. To secure the payment of all of
Lessee's obligations under each Lease, upon the execution of
such Lease, Lessee grants to Lessor a security interest
constituting a first and exclusive lien on the Equipment
applicable to such Lease and on all proceeds therefrom. Lessee
agrees to execute such additional documents, in fonn
satisfactory to Lessor, which Lessor deems necessary or
appropriate to establish and maintain its security interest in the
Equipment. The Equipment is and will remain personal
property and will not be deemed to be affixed to or a part of the
real estate on which it may be situated.
16. Liens. Taxes, Other Governmental Char2es and
Utilitv Char2es. Lessee shall keep the Equipment free of all
levies, liens and encumbrances except those created by each
Lease. The parties to this Agreement contemplate that the
Equipment will be used for governmental or proprietary
purposes of Lessee and that the Equipment will therefore be
exempt from all property taxes. If the use, possession or
acquisition of any Equipment is nevertheless determined to be
subject 10 taxation, Lessee shall pay when due all taxes and
governmental charges lawfully assessed or levied against or
with respect to such j':quipment. Lessee shall pay all utility and
other charges incurred in the use and maintenance of the
Equipment. Lessee shall pay such taxes or charges as the same
may become due.
I? Insurance. At its own expense, Lessee shall during
each Lease Term maintain (a) casualty insurance insuring the
Equipment against loss or damage by fire and all other risks
covered by the standard extended coverage endorsement then in
use in the State and any other risks reasonably required by
Lessor, in an amount at least equal to the then applicable
"Purchase Price" of the Equipment as described in Exhibit A-I
of each Lease; (b) liability insurance that protects Lessee from
liability in all events in form and amount satisfactory to Lessor;
and (c) workers' compensation coverage as required by the laws
of the State: provided that, with Lessor's prior written consent,
Lessee may self-insure against the risks described in clauses (a)
and (b). Lessee shall furnish to Lessor evidence of such
insurance or self-insurance coverage throughout each Lease
Term. Lessee shall not materially modify or cancel such
insurance or self. insurance coverage without first giving written
notice thereof to Lessor at least 10 days in advance of such
cancellation or modification. All such insurance described in
2011-56
clauses (a) and (b) above shall contain a provISIon naming
Lessor as a loss payee and additional insured.
18. Advances. In the event Lessee shall fail to keep the
Equipment in good repair and working order, Lessor may, but
shall be under no obligation to, maintain and repair the
Equipment and pay the cost thereof. All amounts so advanced
by Lessor shall constitute additional rent for the then current
Original T enn or Renewal Term and Lessee agrees to pay such
amounts so advanced by Lessor with interest thereon from the
advance date until paid at the rate of 12% per annum or the
maximum rate pennitted by law, whichever is less.
19. Dama2e, Destruction and Condemnation. If (a) the
Equipment or any portion thereof is destroyed, in whole or in
part, or is damaged by fire or other casualty or (h) title to, or the
temporary use of, the Equipment or any part thereof shall be
taken under the exercise or threat of the power of eminent
domain by any governmental body or by any person, firm or
corporation acting pursuant to governmental authority, Lessee
and Lessor will cause the Net Proceeds to be applied to the
prompt replacement, repair, restoration, modification or
improvement of the Equipment to substantially the same
condition as existed prior to the event causing such damage,
destruction, or condemnation, unless Lessee shall have
exercised its option to purchase the Equipment pursuant to
Section 22. Any balance of the Net Proceeds remaining after
such work has been completed shall be paid to Lessee.
For purposes of this Section, the term "Net Proceeds" shall
mean (y) the amount of insurance proceeds received by Lessee
for replacing, repairing, restoring, modifying, or improving
damaged or destroyed Equipment, or (z) the amount remaining
from the gross proceeds of any condemnation award or sale
under threat of condemnation after deducting all expenses,
including attorneys' fees, incurred in the collection thereof. If
the Net Proceeds are insufficient to pay in full the cost of any
replacement, repair, restoration, modification or improvement
referred to herein, Lessee shall either (a) complete such
replacement, repair, restoration, modification or improvement
and pay any costs thereof in excess of the amount of the Net
Proceeds, or (b) pursuant to Section 22 purchase Lessor's
interest in the Equipment and in any other Equipment listed in
the same Lease. The amount of the Net Proceeds, if any,
remaining after completing such replacement, repair,
restoration, modification or improvement or after purchasing
Lessor's interest in the Equipment and such other Equipment
shall be retained by Lessee. If Lessee shall make any payments
pursuant to this Section, Lessee shall not be entitled to any
reimbursement therefor from Lessor nor shall Lessee be entitled
to any diminution of the amounts payable under Section 9.
20. DISCLAIMER OF WARRANTIES. LESSOR
MAKES NO WARRANTY OR REPRESENTATION.
EITHER EXPRESS OR IMPLIED, AS TO THE VALUE,
DESIGN. CONDITION. MERCHANTABILITY OR FITNESS
FOR PARTICULAR PURPOSE OR FITNESS FOR USE OF
THE EQUIPMENT, OR WARRANTY WITH RESPECT
THERETO WHETHER EXPRESS OR IMPLIED, AND
LESSEE ACCEPTS SUCH EQUiPMENT AS IS AND WITH
ALL F AUL TS. IN NO EVENT SHALL LESSOR BE LIABLE
FOR ANY iNCIDENTAL, INDIRECT, SPECIAL OR
.
CONSEQUENTIAL DAMAGE IN CONNECTION WITH OR
ARISING OUT OF ANY LEASE OR THE EXISTENCE,
FURNISHING, FUNCTIONING OR LESSEE'S USE OF ANY
ITEM, PRODUCT OR SERVICE PROVIDED FOR IN ANY
LEASE.
21. Vendor's Warranties. Lessor hereby irrevocably
appoints Lessee as its agent and attorney-in-fact during each
Lease Term, so long as Lessee shall not be in default under the
related Lease, to assert from time to time whatever claims and
rights (including without limitation warranties) relating to the
Equipment that Lessor may have against Vendor. The term
"Vendor" means any supplier or manufacturer of the Equipment
as well as the agents or dealers of the manufacturer or supplier
from whom Lessor purchased or is purchasing such Equipment.
Lesseets sole remedy for the breach of such warranty,
indemnification or representation shall be against Vendor of the
Equipment, and not against Lessor. Any such matter shall not
have any effect whatsoever on the rights or obligations of
Lessor with respect to any Lease, including the right to receive
full and timely payments under a Lease. Lessee expressly
acknowledges that Lessor makes, and has made, no
representations or warranties whatsoever as to the existence or
the availability of such warranties by Vendor of the Equipment.
22. Purchase Option. Lessee shall have the option to
purchase Lessor's interest in al1 of the Equipment listed in any
Lease, upon giving written notice to Lessor at least 60 days
before the date of purchase, at the following times and upon the
following terms: Ca) on lbe Rental Payment dates specified in
each Lease, upon payment in full of the Rental Payments then due
under such Lease plus the then applicable Purchase Price as
referenced in Exhibit A-I; or Cb) in the event of substantial
damage to or destruction or conderrmation of substantially all of
the Equipment listed in a Lease, on the day specified in Lessee's
notice to Lessor of its exercise of the purchase option upon
payment in full to Lessor of the Rental Payments then due under
such Lease plus the then applicable Purchase Price plus accrued
interest from the Unm,ediately preceding Rental Payment date to
such purchase date.
23. Assignment. Lessor's right, title and interest in and to
each Lease, including Rental Payments and any other amounts
payable by Lessee thereunder and all proceeds therefrom, may
be assigned and reassigned to one or more assignees or
subassignees by Lessor without the necessity of obtaining the
consent of Lessee; provided that any such assignment shall not
be effective until (a) Lessee has received written notice, signed
by the assignor, of the name and address of the assignee, and
(b) it is registered on the registration books. Lessee shall retain
all such notices as a register of all assignees in compliance with
Section 149(a) of the Code, and shall make all payments to the
assignee or assignees designated in such register. Lessee agrees
to execute all documents that may be reasonably requested by'
Lessor or any assignee to protect its interests and property
assigned pursuant to this Section. Lessee shall not have the
right to and shall not assert against any assignee any claim,
counterclaim or other right Lessee may have against Lessor or
Vendor. Assignments may include without limitation
assignment of all of Lessor's security interest in and to the
Equipment listed in a particular Lease and all rights in, to and
2011-56
under the Lease related to such Equipment. Lessee hereby
agrees that Lessor may, without notice to Lessee, sell, dispose
of, or assign this Agreement or any particular Lease or Leases
through a pool, trust, limited partnership, or other similar entity,
whereby one or more interests are created in this Agreement or
in a Lease or Leases, or in the Equipment listed in or the Rental
Payments under a particular Lease or Leases.
None of Lessee's right, title and interest in, to and under
any Lease or any portion of the Equipment listed in each Lease
may be as~igned, subleased, or encumbered by Lessee for any
reason without obtaining prior written consent of Lessor.
24. Events of Default. Any of the following events shall
constitute an "Event of Default" under a Lease: Ca) failure by
Lessee to pay any Rental Payment or other payment required to
be paid under a Lease at the time specified therein; Cb) failure
by Lessee to observe and perform any covenant, condition or
agreement on its part to be observed or performed, other than as
referred to in subparagraph (a) above, for a period of 30 days
after written notice specifying such failure and requesting that it
be remedied is given to Lessee by Lessor; (c) any statement,
representation or warranty made by Lessee in or pursuant to any
Lease shall prove to have been false, incorrect, misleading or
breached in any material respect on the date when made; or Cd)
Lessee institutes any proceedings under any bankruptcy,
insolvency, reorganization or similar law or a receiver or similar
official is appointed for Lessee or any of its property.
25. Remedies on Default. \Vhenever any Event of Default
exists, Lessor shall have the right, at its sole option without any
further demand or notice, to take one or any combination of the
following remedial steps: (a) by written notice to Lessee, Lessor
may declare all Rental Payments payable by Lessee pursuant to
such Lease and other amounts payable by Lessee under such
Lease to the end of the then current Original Term or Renewal
Term to be immediately due and payable; Cb) with or without
terminating the Lease Term under such Lease, Lessor may enter
the premises where the Equipment listed in such Lease is
located and retake possession of such Equipment or require
Lessee at Lessee's expense to promptly return any or all of such
Equipment to the possession of Lessor at such place within the
United States as Lessor shall specifY, and sell or lease such
Equipment or, for the account of Lessee, sublease such
Equipment, continuing to hold Lessee liable for the difference
between (i) the Rental Payments payable by Lessee pursuant to
such Lease and other amounts related to such Lease of the
Equipment listed therein that are payable by Lessee to the end
of the then current Original Term or Renewal Tenn, as the case
may be, and (ii) the net proceeds of any such sale, leasing or
subleasing (after deducting all expenses of Lessor in exercising
its remedies under such Lease, including without limitation all
expenses of taking possession, storing, reconditioning and
selling or leasing such Equipment and all brokerage,
auctioneer's and attorney"s fees), subject, however, to the
provisions of Section 7 hereof. The exercise of any such
remedies in respect of any such Event of Default shall not
relieve Lessee of any other liabilities under any other Lease or
the Equipment listed therein; and Cc) Lessor may take whatever
action at 1m\' or in equity" may appear necessary or desirable to
enforce its rights under such Lease ?r as a secured party in an)
or all of the Equipment. Any net proceeds from the exercise of
any remedy under a Lease (after deducting all costs and
expenses referenced in the Section) shall be applied as follows:
(i) if such remedy is exercised solely with respect to a single
Lease, Equipment listed in such Lease or rights thereunder, then
to amounts due pursuant to such Lease and other amounts
related to such Lease or such Equipment; or (ii) if such remedy
is exercised with respect to more than one Lease, Equipment
listed in more than one Lease or rights under more than one
Lease, then to amounts due pursuant to such Leases pro-rata.
26. No Remedv Exclusive. No remedy herein conferred
upon or reserved to Lessor is intended to be exclusive and every
such remedy shall be cumulative and shall be in addition to
every other remedy given under a Lease now or hereafter
existing at law or in equity.
27. Notices. All notices or other communications under
any Lease shall be sufficiently given and shall be deemed given
when delivered or mailed by registered mail, postage prepaid,
to the parties hereto at the addresses listed below (or at such
other address as either parry hereto sball designate in writing to
the other for notices to such party), or to any assignee at its
address as it appears on the registration books maintained by
Lessee.
28. Release and Indemnification. To the extent permitted
by State law. and subject to Section 7. Lessee shall indemnify,
release, protect, hold harmless, save and keep harmless Lessor
from and against any and all liability, obligation, loss, claim, tax
and damage whatsoever, regardless of cause thereof, and all
expenses in connection therewith (including, without limitation,
attorney's fees and expenses, penalties connected therewith
imposed on interest received) arising out of or as result of (a)
entering into any Lease. (b) the ownership of any item of
Equipment, (c) the ordering, acquisition, use, operation,
2011-56
condition, purchase, delivery, rejection, storage or return of any
item of Equipment, (d) any accident in connection with the
operation, use, condition, possession, storage or return of any
item of Equipment resulting in damage to properry or injury to
or death to any person, and/or (e) the breach of an)' covenant or
any material representation contained in a Lease. The
indemnification arising under this Section shall continue in full
force and effect notwithstanding the full payment of all
obligations under all Leases or the termination of the Lease
Term under all Leases for any reason.
29. Miscellaneous Provisions. Each Lease shall inure to
the benefit of and shall be binding upon Lessor and Lessee and
their respective successors and assigns. References herein to
"Lessor" shall be deemed to include each of its assignees and
subsequent assignees from and after the effective date of each
assignment as permitted by Section 23. In the event any
provision of any Lease shall be held invalid or unenforceable by
any court of competent jurisdiction, such holding shall not
invalidate or render unenforceable any other provision thereof.
Each Lease may be amended by mutual written consent of
Lessor and Lessee. Each Lease may be simultaneously
executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same
instrument. The captions or headings in this Agreement and in
each Lease are for convenience only and in no way define, limit
or describe the scope or intent of any provisions or sections of
this Agreement or any Lease. This Agreement and each Lease
shall be governed by and construed in accordance with the laws
of the State.
.
IN WITNESS WHEREOF, Lessor and Lessee have caused this Agreement to be executed in their names by their duly authorized
representatives as of the date first above written.
(LESSOR)
Pinnacle Public Finance, Inc.
8377 East Hartford Drive. Suite 1 15
Scottsdale. AZ 85255
Signature:
~~~~~r~:~e~~o
~ \~~ \0.01 \
Name/Title:
Date:
(LESSEE)
City of San Bernardino
300 N. "D" Street, 4ili Floor, Finance
San Bernardino, CA 92418
Signature:
Name/Title:
Date:
APPROVED AS TO FORM:
James F. Penman,
City Attorney
By:
2011-56
EXHIBIT A
SCHEDULE OF PROPERTY NO. I
RE: MASTER EQUIPMENT LEASE PURCHASE AGREEMENT entered into as of March ] 1, 20] 1, ("Agreement"), hetween
Pinnacle Public Finance, Inc. ("Lessor") and City of San Bernardino ("Lessee"). All terms used and not otherwise defined herein have
the meanings ascribed to them in the Agreement.
The following items of Equipment are hereby included under this Schedule to the Agreement.
To the extent that less than all of the Equipment subject to this Schedule has been installed and accepted by Lessee on or prior to the
date hereof, Lessee hereby acknowledges that a portion of the Equipment has not been delivered, installed and accepted by Lessee for
purposes of this Lease and Lessor hereby commits to provide funds in an amount sufficient to pay the costs to acquire and install the
Equipment. In consideration of the foregoing, Lessee hereby acknowledges and agrees that its obligation to make Rental Payments as
set forth in this Schedule is absolute and unconditional as of the date hereof and on each date and in the amounts as set forth in the
Rental Payment Schedule, subject to the terms and conditions of the Lease.
Ninety five percent of the financing costs are being used to acquire assets that will be capitalized.
DESCRIPTION OF EOUIPMENT
Ouantitv
DescriDtion
Model No.
Serial No.
I
2
2
]
3
Roll Off Refuse Truck
Front Loader Refuse Trucks
Side Loader Refuse Trucks
Street Sweeper
Ford F-550 Trucks
Lessee hereby represents, warrants and covenants that its representations, warranties and covenants set forth in the Agreement are true
and correct as though made on the Commencement Date of Rental Payments under this Schedule. The terms and provisions of the
Agreement (other than to the extent that they relate solely to other Schedules or Equipment listed on other Schedules) are
hereby incorporated into this Schedule by reference and made a part hereof.
Dated: March 11. 201 I
Lessor: Pinnacle Public Finance, lne
Lessee: City of San Bernardino
Date:
~D'~Ml~
. een . Jime
SVP,OperAtinnq
a\'d--~ \dcDI/
,
Signature:
Signature:
Name/Title:
Name/Title:
Date:
2011-56
EXHIBIT A-I
RENTAL PAYMENT SCHEDULE
RE: Schedule of Property No.1 dated March 11,2011 to Master Equipment Lease Purchase Agreement dated
as of March 11,2011 between Pinnacle Public Finance, Inch as Lessor, and City of San Bernardino, as Lessee.
Rate 2.8900%
Payment Payment Purchase Outstanding
Date Amount Interest Principal Price Balance
PMNT # 3/11/2011 $2,090,406.11
1 9/11/2011 $165,999.37 $30,206.37 $135,793.00 $1,993,705.37 $1,954,613.11
2 3/11/2012 $165,999.37 $28,244.16 $137,755.21 $1,853,19506 $1,816,857.90
3 9/11/2012 $165,999.37 $26,253.60 $139,745.77 $1,710,654.37 $1,677,112.13
4 3/11/2013 $165,999.37 $24,234.27 $141,765.10 $1,566,053.97 $1,535,347.03
5 9/11/2013 $165,999.37 $22,185.76 $143,81361 $1,419,364.09 $1,391,53342
6 3/11/2014 $165,999.37 $20,107.66 $145,891.71 $1,270,554.54 $1,245,641.71
7 9/11/2014 $165,999.37 $17,999.52 $147,999.85 $1,119,594.70 $1,097,641.86
8 3/11/2015 $165,999.37 $15,860.92 $150,138.45 $966,453.48 $947,503.41
9 9/11/2015 $165,999.37 $13,691.42 $152,30795 $811,099.37 $795,195.46
10 3/11/2016 $165,999.37 $11,490.57 $154,508.80 $653,500.39 $640,686.66
11 9/11/2016 $165,999.37 $9,257.92 $156,741.45 $493,624.11 $483,945.21
12 3/11/2017 $165,999.37 $6,993.01 $159,006.36 $331,437.63 $324,938.85
13 9/11/2017 $165,999.37 $4,695.37 $161,304.00 $166,907.55 $163,634.85
14 3/11/2018 $165,999.37 $2,364.52 $163,634.85 $0.00
TOTALS $2,323,991.18 $233,585.07 $2,090,406.11
. COMMENCEMENT DATE: March 11,2011
City of San Bernardino
Signature:
Name/Title:
Date:
2011-56
EXHIBITB
FINAL ACCEPTANCE CERTIFICATE
.
Re Schedule of Property No 1 dated March \1,2011 to Master Equipment Lease Purchase Agreement dated as of March 11,2011 between Pinnacle Public Finance.
Inc, as Lessor, and City of San Bernardino, as Lessee
In accordance with the Master Equipment Lease Purchase Agreemenl(the "Agreement"), the undersigned Lessee hereby certifies and represents 10, and agrees with Lessor as
follows
(1) All orthe Equipment (as such term is defined in the Agreement) listed in the ahove-referenced Schedule of Property (the "Schedule") has been delivered, installed
and accepted on the date hereof
(2) Lessee has conducted such inspection and/or testing artne Equipment listed in the Scl1edule as it deems necessary and appropriate and herehy acknowledges that it
accepts the Equipment for all purposes
(3) Lessee IS currently maintaining the insurance coverage required by Section 17 of the Agreement
(4) N0 event or conditIon that constitutes, or with notice or lapse of time; or both. would constitute, an Event of Default (as defined in the Agreement) exists at the date
hereof
LESSEE
City of San BernardinO
Signature
NameITitle
Acceptance Date
2011-56
INSURANCE COVERAGE REQUIREMENTS
LESSOR:
Pinnacle Public Finance, Inc.
.
LESSEE:
City of San Bernardino
Please Reference Control # 100319 on Certificate ofInsurance
1. In accordance with Section 17 of the Agreement, we have instructed the insurance agent named below:
(Please fill in name, address and telephone number).
Telephone:
Fax:
Contact:
a. All Risk Physical Damage Insurance on the leased equipment evidenced by a Certificate of Insurance and Long Form Loss
Payable Clause naming Pinnacle Public Finance, Inc. and/or its assigns, as Loss Payee.
Coverage Required:
Full Replacement Value
b. Public Liability Insurance evidenced by a Certificate ofInsurance naming Pinnacle Public Finance, Inc. and/or its assigns as
Additional Insured.
Minimum Coverage Required: $5,000,000
OR
2. Pursuant to Section 17 of the Agreement, we are self-insured for all risk, physical damage, and public liability and will
provide proof of such self-insurance in letter fom1 together with a copy of the statute authorizing this form of insurance.
Proof of insurance coverage will be provided prior to the time the Equipment is delivered to us.
PLEASE LIST NAME & ADDRESS AS FOLLOWS:
Pinnacle Public Finance, Inc.
8377 East Hartford Drive, Suite 115
Scottsdale, AZ 85255
LESSEE:
City of San Bernardino
Signature:
NameiTitle:
Date:
2011-56
PAYMENT INSTRUCTIONS
Pursuant to the Master Equipment Lease Purchase Agreement dated March 11, 2011 (the "Agreement"), Schedule of Property No. \. dated March
11,2011, between Pinnacle Public Finance, Inc. (the "Lessor") and City of San Bernardino (the "Lessee"), Lessee hereby acknowledges the
obligations to make Rental Payments promptly when due, in accordance with Exhibit A.j to the Agreement.
LESSEE NAME:
TAX ID#:
INVOICE MAILING ADDRESS:
Mail invoices to the attention of:
Phone (
FaxLJ
Approval of Invoices required by:
Phone(.--J
1 dX (
Accounts Payable Contact:
Phone (.--J
Fax L)~
Processing time for lnvoices:
Approval:
Checks:
Do you have a Purchase Order Number that you would like included on the invoice? No
Yes
PO#
Do your Purchase order numbers change annually? No_ \'es_ Processing time for new purchase orders:
LESSEE: City of San Bernardino
Signature:
Name/Title
Date:
2011-56
BANK QUALIFIED DESIGNATION
SCHEDULE NO.1 DATED MARCH 11, 2011 TO MASTER LEASE PURCHASE AGREEMENT
DATED MARCH 11,2011
Lessee hereby represents and certifies the following (please check one):
Bank Qualified
o Lessee has designated, and hereby designates, this Lease as a "qualified tax-exempt obligation" for the
purposes and within the meaning of Section 265(b)(3) of the Internal Revenue Code of 1986, as
amended (the "Code"). In making that designation, Lessee hereby certifies and represents that:
. As of the date hereof in the current calendar year, neither Lessee nor any other issuer on behalf of
Lessee has designated more than $10,000,000 (the statutory limitation through 12/3112011) of
obligations (including this Lease) as "qualified tax-exempt obligations";
. Lessee reasonably anticipates that the total amount of tax-exempt obligations (including this
Lease) to be issued by or on behalf of Lessee (or allocated to Lessee) during the current calendar
year will not exceed $10,000,000;
. The Lease will not be at any time a "private activity bond" as defined in Section 141 of the Code;
. The Lease is not subject to control by any entity and there are no entities subject to control by
Lessee; and
. Not more than $10,000,000 of obligations of any kind (including the Lease) issued by, on behalf
of or allocated to Lessee will be designated for purposes of Section 265(b )(3) of the Code during
the current calendar year.
Non-Bank Qualified
o Lessee has not designated this Lease as a "qualified tax-exempt obligation" for the purposes and within
the meaning of Section 265(b )(3) of the Code.
LESSEE:
City of San Bernardino
Signature:
x
Printed Name/Title:
x
Date:
x
Line 2:
Lines 9 and 10:
Line 38:
Signature and
Consent:
2011-56
Instructions for 8038-G:
Updated for use with May, 2010 form
The below described lines need to be completed by the Lessee:
Enter the Lessee's EIN number
An issuer (Lessee) that does not have an employer identification number (EIN) should apply
for one on Form 88.4, Application for Employer Identification Number. This form may be
obtained at Social Security Administration offices or by calling 1-800- TAX-FORM (1-800-
829-3676). You can also get this form on the IRS website at \rVWW,irsaov. You may receive
an EIN by telephone by following the instructions for Form SS-4.
Enter the name, title, and telephone number of the officer of the Issuer
whom the IRS may call for more information
If the issuer wishes to designate a person other than an officer of the issuer (including a
legal representative or paid preparer) whom the IRS may call for more information with
respect to this return, enter the name, title, and telephone number of such person.
Bank Qualified Designation
Check this box if this Lease is designated as a "small issuer exception" under section
265(b)(3)(B)(i)(III). (Lessee reasonably anticipates that the total amount of tax-exempf
obligations (including this Lease) to be issued by or on behalf of Lessee (or allocated to
Lessee) during the calendar year 2011 will not exceed $10,000,000.)
Please provide an authorized signature, date, and printed (or typed)
name and title of the individual signing on behalf of Lessee,
2011-56
PPF 100319
1 Issuer's name
Information Return for Tax-Exempt Governmental Obligations
... Under Internal Revenue Code section 149(e)
~ See separate instructions.
Caution: If the issue price is under $100,000, use Form B03B-GG.
If Amended Return, check here ~ 0
2 Issuer's errpIoyer identification IllITi:ler (BN)
OMS No. 1545-0720
Foem 8038.6
(Rev. May 2010)
Depar1ment oflheTreasury
Intemal Reverlue Service
Cit of San Bernardino
3 Number and street (or P.O. box if mail is not delivered to street address)
300 N. "D" Street, 4th Floor, Finance
S City, town, or post office, state, and ZIP code
San Bernardino, CA 92418
7 Name of issue
Room/suite
4 Report number (For IRS Use Only)
6 Date of issue
03/11/2011
8 CUSIP number
Sch of Prop No.1 dtd 3/11/2011 to MELPA dtd 3/11/2011
9 Name and title of officer of the issuer or other person whom the IRS may call for more information
10 Telephone number of oflicer or other Derson
enter the issue price See instructions and attach schedule
11 Education
12 Health and hospital
13 Transportation.
14 Public safety
15 Environment (including sewage bonds).
16 Housing.
17 Utilities . . .
18 Other. Describe.... Public Works Vehicles
19 If obligations are TANs or RANs, check only box 19a
If obligations are BANs, check only box 19b
20 If obligations are in the form of a lease or installment sale, check box
~D
~D
~D
ations. Com lete for the entire issue for which this form is bein
(b) Issue price
(e) Stated redemption
price at maturity
ld} Weighted
average maturity
(el Yield
$2,090,406.11 3.6335
underwriters' discount
years
2.8900 %
22
23
24
25
26
27
28
29
30
Proceeds used for accrued interest.
Issue price of entire issue (enter amount from line 21, column (b))
Proceeds used for bond issuance costs (including underwriters' discount) 24
Proceeds used for credit enhancement 25
Proceeds allocated to reasonably required reserve or replacement fund. 26
Proceeds used to currently refund prior issues 27
Proceeds used to advance refund prior issues . 28
Total (add lines 24 through 28) .
Nonrefundin roceeds of the issue subtract line 29 from line 23 and enter amount here
Oeseri tion of Refunded Bonds Com lete this art ani for refundin
o 00
o 00
o 00
o 00
o 00
o
$2,090,406
00
11
29
30
o
$2,090,406
00
11
bonds.
31 Enter the remaining weighted average maturity of the bonds to be currently refunded. ....
32 Enter the remaining weighted average maturity of the bonds to be advance refunded. ....
33 Enter the last date on which the refunded bonds will be called (MM/DDIYYYY) ~
34 Enter the date(s) the refunded bonds were issued'" (MM/DDNVYY)
For Privacy Act and Paperwork Reduction Act Notice, see separate instructions. Cat. No. 637738
years
years
Form 8038-G (Rev_ 5.2010)
2011-56
Form 8038-G (Rev. 5-2010)
Miscellaneous
Page 2
38
39
40
Enter the amount of the state volume cap allocated to the issue under section 141 (b)(5) .
Enter the amount of gross proceeds invested or to be invested in a guaranteed investment contract
(GIG) (see instructions)
Enter the final maturity date of the GIC ....
Pooled financings: a Proceeds of this issue that are to be used to make loans to other
governmental units
b If this issue is a loan made from the proceeds of another tax-exempt issue, check box.... 0
issuer.... and the date of the issue ....
if the issuer has designated the issue under section 265(b)(3)(B)(i)(III) (small issuer exception), check box
If the issuer has elected to pay a penalty in lieu of arbitrage rebate, check box
If the issuer has identified a hedge, check box
35
36a
b
37
37a
and enter the name of the
~D
~D
~D
Signature
and
Consent
Under penalties of perjury. I declare that I have examined this return and accompanying schedules and statements, and to the best of my knowledge
and belief, they are true, correct, and complete. I further declare that I consent to the IRS's disclosure althe issuer's return information, as necessary
to process this return, to the person that I have authorized above
Paid
Preparer's
Use Only
Firm's name r
yours if self-employed),
address, and ZIP code
Preparer'S SSN or PTIN
P01269392
3119149
( 480 I 585-3789
Form 8038-G (Rev. 5-2010)
Phone no.
2011-56
CERTIFICATE OF SIGNATURE AUTHORITY OF LESSEE
March 11,2011
Pinnacle Public Finance, 1nc.
8377 East Hartford Drive, Suite 115
Scottsdale, AZ 85255
RE: Schedule of Property No.1 dated March J 1, 2011 ("Lease") to the Master
Equipment Lease Purchase Agreement dated March 11, 201 ] ("Agreement"), by
and between City of San Bernardino ("Lessee") and Pinnacle Public Finance, Inc.
("Lessor").
Dear Pinnacle Public Finance, Inc.,
I, the undersigned, do hereby certify
(i) that
(please print the name and title of the person who signed the lea.';;e documents Oil the line above)
the officer of Lessee who executed the foregoing Lease and Agreement on behalf of Lessee and
whose genuine signature appears thereon, is the duly qualified and acting officer of Lessee as stated
beneath his or her signature and has been authorized to execute the foregoing Lease and Agreement
on behalf of Lessee, and
(ii)
that the budget year of Lessee is from
to
Sincerely,
Signature:
Name/Title:
Dated:
The Certificate of Signature Authority of Lessee should be executed by an authorized individual confirmjng the
executioner of the remaining documents is authorized. This document cannot be signed by the person signing the
lease documents.
2011-56
ESCROW AGREEMENT
This Escrow Agreement, dated as of March 11,2011 by and among Pinnacle Public Finance, Inc., a
Delaware corporation ("Lessor"), City of San Bernardino ("Lessee"), and The Bank of New York Mellon Trust
Company, NA., a national banking association with a corporate trust office in St Louis, MO, as Escrow Agent
(the "Escrow Agent"):
In consideration of the mutual covenants and agreements herein set forth, the parties hereto do hereby
covenant and agree as follows:
I. This Escrow Agreement relates to and is hereby made a part of Schedule of Property No. I
dated as of the date hereof, between Lessor and Lessee. to the Master Equipment Lease Purchase Agreement
dated March 1 L 2011 between Lessor and Lessee ("Lease").
2. Except as otherwise defined herein, all terms defined in the Lease shall have the same meaning
for the purposes of this Escrow Agreement as in the Lease.
3. Lessor, Lessee and the Escrow Agent agree that the Escrow Agent will act as sole Escrow
Agent under the Lease and this Escrow Agreement, in accordance with the terms and conditions set forth in this
Escrow Agreement. The Escrow Agent shall not be deemed to be a party to the Lease and this Escrow
Agreement shall be deemed to constitute the entire agreement among Lessor, Lessee, and Escrow Agent.
4. There is hereby established in the custody of Escrow Agent a special trust fund designated the
Acquisition Fund (the "Acquisition Fund") to be held and administered by the Escrow Agent in trust for the
benefit of Lessor and Lessee in accordance with the Escrow Agreement.
5. (a) Lessor shall deposit $2,090,406.11 in the Acquisition Fund. Moneys held by the Escrow Agent
hereunder shall be invested and reinvested by the Escrow Agent upon order of a representative of Lessee in
Qualified Investments (as hereinafter defined) maturing or subject to redemption at the option of the holder
thereof prior to the date on which it is expected that such funds will be needed. Such investments shall be held
by the Escrow Agent in the Acquisition Fund, and any interest earned on such investments shall be paid to
Lessee.
(b) The parties recognize and agree that the Escrow Agent will not provide supervision,
recommendations or advice relative to either the investment of the Acquisition Fund or the purchase, sale,
retention or other disposition of any Qualified Investment. The Lessee warrants that the investments directed to
be purchased by the Escrow Agent pursuant to this paragraph 5 are Qualified Investments as defined in
paragraph 6 ofthis Escrow Agreement. The Lessee will give at least ten (10) business days advance notice for
the purchase of United States Treasury Obligations-State and Local Government Series time/demand deposit
securities.
(c) Any loss or expense incurred from an investment will be bome by the Acquisition Fund. If the
Escrow Agent does not receive directions to invest the monies held in the Acquisition Fund, its only obligation
with respect to the Acquisition Fund shall be to hold it or deposit uninvested without liability for interest or
other compensation to either party.
(d) The Escrow Agent is hereby authorized to execute purchase and sales of Qualified Investments
through the facilities of its own trading or capital markets operations. The Escrow Agent shall send statements
to each of the parties periodically reflecting activity for the Escrow Account for the preceding month.
6. "Qualified Investments" shall be defined for purposes of this Escrow Agreement as follows:
2011-56
(a) For Leases not qualified for the arbitrage rebate exception for small governmental units under
Section 148(f)(4)(C) of the Code, "Qualified Investments" means, to the extent the same are at the time legal
for investment of the funds being invested: (i) United States Treasury Bills or United States Treasury Notes
traded on an open market or issued directly by the United States at a yield not exceeding % per
annum, (ii) United States Treasury Obligations - State and Local Governmental Series time deposit
securities with a yield not exceeding % per annum, (iii) obligations the interest of which is not
includable in the gross income of the owner thereof for federal income tax purposes under Section 103 of the
Code and which are rated AA or better by Standard & Poors Corporation or Aa or better by Moody's
Investors Service, Inc., (iv) shares of qualified regulated investment companies which distribute exempt-
interest dividends within the meaning of Section 852 of the Code and which are rated AA or better by
Standard & Poors Corporation or Aa or better by Moody's Investors Service, Inc. (tax-exempt mutual funds),
(v) United States Treasury Obligations - State and Local Government Series demand deposit securities, or
(vi) Money Market Fund or Money Market Deposit Account that is fully FDIC-insured as agreed to by the
Lessee.
(b) For Leases qualified for the arbitrage rebate exception for small governmental units under
Section I 48(f)(4)(C) of the Code, "Qualified Investments" means to the extent the same are at the time legal
for investment of the funds being invested: (i) direct general obligations ofthe United States of America;
(ii) obligations, the timely payment of the principal and interest on which is fully and unconditionally
guaranteed by the United States of America; (iii) general obligations of the agencies and instrumentalities of
the United States of America acceptable to Lessor; (iv) certificates of deposits, time deposits, bank deposits
or demand deposits with any bank or savings institution including the Escrow Agent or any affiliate thereof,
provided that such certificates of deposit, time deposits, bank deposits or demand deposits, if not insured by
the Federal Deposit Insurance Corporation or the Federal Savings and Loan Insurance Corporation, are fully
secured by obligations described in (i), (ii) or (iii) above, or (v) repurchase agreements with any state or
national bank or trust company, including the Escrow Agent or any affiliate thereof, that are secured by
obligations of the type described in (i), (ii) or (iii) above, provided that such collateral is free and clear of
claims of third parties and that the Escrow Agent or a third party acting solely as agent for the Escrow Agent
has possession of such collateral and a perfected first security interest in such collateral.
7. Moneys in the Acquisition Fund shall be used to pay for the cost of the acquisition of the
Equipment. Payment shall be made from the Acquisition Fund for the cost of acquisition of part or all
Equipment upon presentation to the Escrow Agent of one or more properly executed Payment Request and
Acceptance Certificates, a form of which is attached hereto as Exhibit A, executed by Lessee and approved
by Lessor, together with an invoice for the cost of the acquisition of the Equipment for which payment is
requested and a written approval by Lessor ofthe Vendor to be paid.
8. Concerning the Escrow Agent.
Notwithstanding any provision contained herein to the contrary, the Escrow Agent, including its
officers, directors, employees and agents, shall:
(a) not be liable for any action taken or omitted under this Escrow Agreement so long as it shall
have acted in good faith and without negligence; and shall have no responsibility to inquire into or determine
the genuineness, authenticity, or sufficiency of any securities, checks, or other documents or instruments
submitted to it in connection with its duties hereunder;
(b) be entitled to deem the signatories of any documents or instruments submitted to it hereunder as
being those purported to be authorized to sign such documents or instruments on behalf of the parties hereto,
and shall be entitled to rely upon the genuineness of the signatures of such signatories without inquiry and
without requiring substantiating evidence of any kind; and have no liability for acting upon any written
and/or facsimile and/or email instructions presented by Lessee/Lessor/Pinnacle Public Finance, Inc. in
connection with this Escrow Agreement which the Escrow Agent in good faith believes to be genuine.
2011-56
(c) be entitled to refrain from taking any action contemplated by this Escrow Agreement in the event
that it becomes aware of any disagreement between the parties hereto as to any facts or as to the happening of
any contemplated event precedent to such action;
(d) have no responsibility or liability for any diminution in value of any assets held hereunder which
may result from any investments or reinvestment made in accordance with any provision which may be
contained herein;
(e) be entitled to compensation for its services hereunder as per Exhibit B, which is attached hereto and
made a part hereof, and for reimbursement of its out-of-pocket expenses including, but not by way of'limitation,
the fees and costs of attorneys or agents which it may find necessary to engage in performance of its duties
hereunder, all to be paid by Lessee, and the Escrow Agent shall have, and is hereby granted, a prior lien upon
any property, cash, or assets of the Acquisition Fund, with respect to its unpaid fees and nonreimbursed
expenses, superior to the interests of any other persons or entities, and shall be entitled and is hereby granted
the right to set off and deduct any unpaid fees and/or nonreimbursed expenses from amounts on deposit
pursuant to this Escrow Agreement
(I) be under no obligation to invest the deposited funds or the income generated thereby until it has
received a Form W-9 or W-8, as applicable, from each of the parties hereto, regardless of whether any party is
exempt from reporting or withholding requirements under the Internal Revenue Code of 1986, as amended;
(g) have no liability for acting upon any written instruction presented by Lessor in connection with this
Escrow Agreement which the Escrow Agent in good faith believes to be genuine. Furthermore, the Escrow
Agent shall not be liable for nay act or omission in connection with this Agreement except for its own
negligence, willful misconduct or bad faith. The Escrow Agent shall not be liable for any loss or diminution in
value of the Acquisition Fund as a result of the investments made by the Escrow Agent;
(h) in the event any dispute shall arise between the patties with respect to the disposition or
disbursement of any ofthe assets held hereunder, be permitted to interplead all of the assets held hereunder into
a court of competent jurisdiction, and thereafter be fully relieved from any and all liability or obligation with
respect to such interpleaded assets. The parties further agree to pursue any redress or recourse in connection
with such a dispute, without making the Escrow Agent a party to same;
(i) only have those duties as are specifically provided herein, which shall be deemed purely ministerial
in nature, and shall under no circumstance be deemed a fiduciary for any of the parties to this Escrow
Agreement. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of the terms
and conditions of any other agreement, instrument, or document bet\Veen the other parties hereto, in connection
herewith, including, without limitation, the Lease referred to in the preamble or the body of this Escrow
Agreement. This Agreement sets forth all matters pertinent to the escrow contemplated hereunder, and no
additional obligations of the Escrow Agent shall be inferred from the terms of this Escrow Agreement or any
other Agreement. IN NO EVENT SHALL THE ESCROW AGENT BE LIABLE, DIRECTLY OR
INDIRECTLY, FOR ANY (i) DAMAGES OR EXPENSES ARlSING OUT OF THE SERVICES PROVIDED
HEREUNDER, OTHER THAN DAMAGES WHICH RESULT FROM THE ESCROW AGENT'S FAILURE
TO ACT IN ACCORDANCE WITH THE REASONABLE COMMERCIAL STANDARDS OF THE
BANKING BUSINESS, OR (ii) SPECIAL OR CONSEQUENTIAL DAMAGES, EVEN IF THE ESCROW
AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES:
U) have the right, but not the obligation, to consult with nationally-recognized counsel of its choice
and shall not be liable for action taken or omitted to be taken by the Escrow Agent either in accordance with the
advise of such counselor in accordance with any opinion of counsel to Lessor addressed and delivered to the
Escro\\' Agent;
2011-56
(k) have the right to perform any of its duties hereunder through agents, attorneys, custodians or
nominees; and
(I) shall not be required by any provision of this Escrow Agreement to expend or risk its own funds in
the performance of its duties if it shall have reasonable grounds for believing that repayment of such funds is
not reasonably assured to it.
Any banking association or corporation into which the Escrow Agent (or substantially all of its
corporate trust business) may be merged, converted or with which the Escrow Agent may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the Escrow Agent shall be a party,
succeed to all the Escrow Agent's rights, obligations and immunities hereunder without the execution or filing of
any paper or any fUliher act on the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
9. Tax Matters.
a) ReportinQ of Income: The Escrow Agent shall report to the Internal Revenue Service, as of each
calendar year-end, all income earned from the investment of any sum held in the Escrow Fund against Lessee,
whether or not said income has been distributed during such year, as and to the extend required by law.
b) Preparation and Filing of Tax Returns: Any tax returns required to be prepared and filed will be
prepared and filed by Lessee with the Internal Revenue Service in all years income is earned, whether or not
income is received or distributed in any particular tax year, and Escrow Agent shall have no responsibility
for the preparation and/or filing or any tax return with respect to any income earned b)' the Acqnisition
Fnnd.
c) Payment of Taxes: Any taxes payable on income earned from the investment of any sums held in
the Acquisition Fund shall be paid by Lessee, whether or not the income was distributed by the Escrow Agent
during any particular year.
10. The Acquisition Fund shall terminate upon the occurrence of the earlier of (a) the presentation
of a proper Payment Request and Acceptance Certificate with the portion thereof designated "Final Acceptance
Certificate" prqperly executed by Lessee, or (b) the presentation of written notification by the Lessor, or if the
Lessor shall have assigned its interest under the Agreement, then the assignees or subassignees of all of
Lessor's interest under the Lease or an Agent on their behalf, that an Event of Default has occurred or that
Lessee has terminated the Lease pursuant to Section 7 of the Lease. Upon termination as described in clause (a)
of this paragraph, any amount remaining in the Acquisition Fund shall be used to prepay, in the sole discretion
of the Lessor, either (i) principal payments thereafter due under the lease in the inverse order or their maturities,
or (ii) proportionately to each principal payment thereafter due under the Lease. In the event that Lessor elects
to apply such amounts in accordance with clause (i) of the preceding sentence, Lessee shall continue to make
Rental Payments as scheduled under the Lease. In the event that Lessor elects to apply such amounts in
accordance with clause (ii) of this Section 10, Lessor shall provide Lessee with a revised payment schedule
which shall reflect the revised principal balance and reduced Rental Payments due under the Lease. Upon
termination as described in clause (b) of this paragraph, any amount remaining in the Acquisition Fund shall
immediately be paid to Lessor or, pro rata, to any assignees or subassignees of Lessor.
11. The Escrow Agent may at any time resign by giving at least 39 days written notice to Lessee
and Lessor, but such resignation shall not take effect until the appointment of a successor Escrow Agent. The
substitution of another bank or trust company to act as Escrow Agent under this Escrow Agreement may occur
by written agreement of Lessor and Lessee. In addition, the Escrow Agent may be removed at any time, with or
without cause, by an instrument in writing executed by the Lessor and Lessee. In the event of any resignation
or removal of the Escrow"Agent a successor Escrow Agent shall be appointed by an instrument in writing
executed by Lessor and Lessee. Such successor Escrow Agent shall indicate its acceptance of such
2011-56
appointment by an instrument in writing delivered to Lessor, Lessee, and the predecessor Escrow Agent.
Thereupon such successor Escrow Agent shall, without any further act or deed, be fully vested with all the trust,
powers, rights, duties and obligations of the Escrow Agent under this Escrow Agreement, and the predecessor
Escrow Agent shall deliver all moneys and securities held by it under this Escrow Agreement to such successor
Escrow Agent.
12. The Escrow Agent incurs no liability to make any disbursements pursuant to the Escrow
Agreement except from funds held in the Acquisition Fund. The Escrow Agent makes no representations or
warranties as to the title to any Equipment or as to the performance of any obligations of Lessor or Lessee. In
the event the Escrow Agent becomes involved in litigation by reason of the administration of the Acquisition
Fund, it is hereby authorized to deposit with the appropriate Clerk of the Court, in which the litigation is
pending, any and all funds, securities or other property held by it pursuant hereto, less its reasonable fees,
expenses and advances, and thereupon shall stand fully relieved and discharged of any further duties regarding
the Acquisition Fund. Also, in the event the Escrow Agent is threatened with litigation by reason of this
Escrow Agreement regarding the Acquisition Fund, it is hereby authorized to file an interpleader action in any
court of competent jurisdiction and to deposit with the Clerk of such Court, any funds, securities, or other
property held by it, less its reasonable fees, expenses and advances, and thereupon shall stand fully relieved and
discharged of any further duties regarding the Acquisition Fund.
13. Notices.
Any notice, consent or request to be given in connection with any of the terms or provisions of this
Escrow Agreement shall be in writing and be given in person, by facsimile transmission or courier delivery
service or by mail, and shall become effective (a) on delivery if given in person, (b) on the date of delivery if
sent by facsimile with receipt confirmed by telephone or by courier delivery service, or (c) four business days
after being deposited in the mails, with proper postage prepaid for first-class registered or certified mail.
Notices shall be addressed as follows:
(i) ifto Lessor:
Pinnacle Public Finance, Inc.
8377 East Hartford Drive, Suite I] 5
Scottsdale, AZ 85255
Attention: Investment Associate
Fax Number: (480) 419-3603
(ii) if to Lessee:
City of San Bernardino
300 N. "D" Street, 4th Floor, Finance
San Bernardino, CA 92418
Attention: Michael Gomez
Phone Number: (909) 384-5146
Tax ill:
(iii) if to the Escrow Agent:
The Bank of New York Mellon Trust Company, N.A.,
911 Washington Ave.
St. Louis, MO 63101
] 4. In the event any provision of this Escrow Agreement shall be held invalid or unenforceable by
any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other
provision hereof.
15. This Escrow Agreement may not be amended except by a written instrument executed by
Lessor, Lessee and the Escrow Agent.
2011-56
16. Governing Law, Counterparts.
This Agreement shall be construed in accordance with the laws ofthe State of California. It may be
executed in several counterparts, each one of which shall constitute an original and all collectively shall
constitute but one instrument.
IN WITNESS WHEREOF, Lessor, Lessee and the Escrow Agent have caused this Escrow Agreement to be
executed by their duly authorized representatives.
Pinnacle Public Finance, Inc.
Lessor
City of San Bernardino
Lessee
.
By~ O'r7lL0v
Cathleen O. JI nez 0
Title: SVP, Operations
By:
Title:
The Bank of New York Mellon Trust Company. N.A.
Escrow Agent
By:
Title:
2011-56
Exhibit A
Escrow Agreement
Payment Reauest and Acceotance Certificate
To'
The Bank of New '{ark Mellon Trust Company, N.A.
Artn: James Agnew
911 Washington Ave.
St. Louis, MO
Phone Number: (314) 613.8203 Fax Number: (314) 613.8286
and
Pinnacle Public Finance. Inc,
8377 East Hartford Drive, Suite 115
Scottsdale, AZ 85255
RE
Schedule of Property No. I dated March 11, 2011 to the Master Equipment Lease Purchase
Agreement dated March 11, 20 II
The ES'TOW Agent is hereby requested to pay [rom the Acquisition Fund to the person or corporation designated below as Payee, the sum set
fOl111 below in payment ofa portion or all of the cost of the acquisition ofthe equipment described below. The amount shown belO\,v is due and
payable under the invoice uftbe Payee attached hereto with respect to the cost of the acquisition ufthe equipment and has not formed the basis of
any prior request for payment. The equipment described below is part or all of the "Equipment" listed in the Schedule of Propert)' No.1 dated
March 11. 2011 to the Master Equipment Lease Purchase Agreement dated March 11,2011 (the "Agreement").
Ouantity
Serial Number/Descriotion:
Amount:
Payee:
Payee's Federal ID Number:
Lessee herehy cenifies nnd represents to and agrees with Lessor as follows
(1) Theequipmenl described above has been delivered, installed and accepted on the dale hereof
(2) Lessee has conducted such inspl:ction andlor testing of said equipment as it deems nl:cessary and appropriate and hereby acknowledges lhat it accepts said equipment for all purposes
(3) Lessee is currently maintaining the insurance coverage required by Section Ii of the Agreement
(4) No event or condition that constitutes, or with notice or lapse of time or both would constitute, an Event of Default (as such ternl is defined in the Agreement) exists at the date hereof.
Dated
City of San Bernardino
LESSEE
By
Title
Approve,d
Pinnacle Public Finance Inc.
LESSOR
By
Title
FINAL ACCEPTANCE CERTIFICATE
(THIS CERTIFICATE IS TO BE EXECUTED ONLY WHEN ALL EQUIPMENT HAS BEEN ACCEPTED)
The undersigned hereby certifies that the equipment described abow, together with the equipment described in and accepted hy Payment Request and Acceptance Certificates
previollsly filed by Lessee WIth the Lessor pursuant III the Ah'Teemenl, constitutes all orlhe Equipml:nt subJcet to the A!c'Teement
Dated
LESSEE
",
T1lle
100319
2011-56
Exhibit B
Escrow Agreement
(Escrow A.ent Fee Schedule)
The Escrow Agent shall be entitled to fees for its ordinary services as follows:
A one-time fee of $750.00 upon receipt of the Final Acceptance Certificate signed by Lessor/Lessee. This fee may
be paid from interest earnings.
1n addition, the Escrow Agent shall be entitled to compensation and reimbursement of expenses for any extraordinary
service provided pursuant to this Escrow Agreement. The foregoing right shall include the costs of any additional services
performed by Escrow Agent which is not customarily considered to be a usual service provided in the administration of
this escrow.
CUSTOMER NOTICE REQUIRED BY THE USA PATlUOT ACT
To help the US government fight the funding of terrorism and money laundering activities. US Federal law
requires all financial institutions to obtain, verify, and record information that identifies each person (whether
an individual or organization) for which a relationship is established.
What this means to you: When you establish a relationship with The Bank of New York Mellon Trust
Company, N.A., we will ask you to provide certain information (and documents) that will help us to identify
you. We will ask for your organization's name, physical address, tax identification or other government
registration number and other information that will help us to identify you. We may also ask for a Certificate
of Incorporation or similar document or other pertinent identifying documentation for your type of
organization.
2011-56
VENDOR SERVICE AGREEMENT
This Vendor Service Agreement is entered into this 7th day of March 2011, by and
WHEREAS, the City of San Bernardino has determined that vendor possesses the
professional skills and ability to provide said services for the City;
NOW, THEREFORE, the parties hereto agree as follows:
SCOPE OF SERVICES.
For the remuneration stipulated in paragraph 2, San Bernardino hereby engages the
services of VENDOR to provide those products and services as set forth in its proposal dated
December 16,2010, attached hereto, marked Attachment "I" and incorporated herein by this
reference as fully as though set forth at length.
2. COMPENSATION AND EXPENSES.
a. For the services delineated above, the CITY, upon presentation of an invoice, shall
pay the VENDOR up to the amount of $1,740,865.25 to provide and perform those
products and services described in Section I above.
b. No other expenditures made by VENDOR shall be reimbursed by CITY.
.1.
2011-56
3. TERM.
4.
INDEMNITY.
INSURANCE.
While not restricting or limiting the foregoing, during the term of this Agreement,
VENDOR shall maintain in effect policies of comprehensive public, general and automobile
liability insurance, in the amount of $1,000,000.00 combined single limit, and statutory
-2-
2011-56
worker's compensation coverage, and shall file copies of said policies with the CITY's Risk
1 Manager prior to undertaking any work under this Agreement. CITY shall be set forth as an
2 additional named insured in each policy of insurance provided hereunder. The Certificate of
3 Insurance furnished to the CITY shall require the insurer to notify CITY of any change or
4 termination in the policy. Insurer shall give CITY 30 days notice prior to enactment and any
5
change or termination of policy.
6
7
8 In the performance of this Agreement and in the hiring and recruitment of employees,
9 VENDOR shall not engage in, nor permit its officers, employees or agents to engage in,
10 discrimination in employment of persons because of their race, religion, color, national origin,
11 ancestry, age, mental or physical disability, medical conditions, marital status, sexual gender or
12
sexual orientation, or any other status protected by law, except as permitted pursuant to Section
13
12940 of the California Government Code.
14
15
16
17
18
19
20
21
22
23
24 8.
25
26
27
28
6.
NON-DISCRIMINATION.
7.
INDEPENDENT CONTRACTOR.
VENDOR shall perform work tasks provided by this Agreement, but for all intents and
purposes VENDOR shall be an independent contractor and not an agent or employee of the
CITY. VENDOR shall secure, at its expense, and be responsible for any and all payment of
Income Tax, Social Security, State Disability Insurance Compensation, Unemployment
Compensation, and other payroll deductions for VENDOR and its officers, agents, and
employees, and all business licenses, if any are required, in connection with the services to be
performed hereunder.
BUSINESS REGISTRATION CERTIFICATE AND OTHER REQUIREMENTS.
VENDOR warrants that it possesses or shall obtain, and maintain a business registration
certificate pursuant to Chapter 5 of the Municipal Code, and any other license, permits,
-3-
2011-56
qualifications, insurance and approval of whatever nature that are legally required of VENDOR
1 to practice its business or profession.
2 9. NOTICES.
3 Any notices to be given pursuant to this Agreement shall be deposited with the United
4 States Postal Service, postage prepaid and addressed as follows:
5 TO THE CITY:
6
7
Public Services Director
300 North "D" Street
San Bernardino, CA 92418
Telephone: (909) 384-5140
8 TO THE VENDOR:
9
10
11
12 10.
13
Fairview Ford Sales Inc.
808 West 2nd Street
San Bernardino, CA 92412-5516
Telephone: (909) 386-0281
Attn: Todd Eff
ATTORNEYS' FEES
In the event that litigation is brought by any party in connection with this Agreement,
14 the prevailing party shall be entitled to recover from the opposing party all costs and expenses,
15 including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of
16
its rights or remedies hereunder or the enforcement of any of the terms, conditions or
17
18
office in enforcing this Agreement on behalf of the CITY shall be considered as "attorneys'
19
20
provisions hereof. The costs, salary and expenses of the City Attorney and members of his
fees" for the purposes of this paragraph.
21 11.
ASSIGNMENT.
22 VENDOR shall not voluntarily or by operation of law assign, transfer, sublet or
23 encumber all or any part of the VENDOR's interest in this Agreement without CITY's prior
24
25
26
27
28
written consent. Any attempted assignment, transfer, subletting or encumbrance shall be void
and shall constitute a breach of this Agreement and cause for the termination of this
Agreement. Regardless of CITY's consent, no subletting or assignment shall release VENDOR
-4-
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
2011-56
of VENDOR's obligation to perform all other obligations to be performed by VENDOR
hereunder for the term of this Agreement.
12. VENUE.
The parties hereto agree that all actions or proceedings arising in connection with this
Agreement shall be tried and litigated either in the State courts located in the County of San
Bernardino, State of California or the U.S. District Court for the Central District of California,
Riverside Division. The aforementioned choice of venue is intended by the parties to be the
mandatory and not permissive in nature.
13. GOVERNING LAW.
This Agreement shall be governed by the laws of the State of California.
14. SUCCESSORS AND ASSIGNS.
This Agreement shall be binding on and inure to the benefit of the parties to this
Agreement and their respective heirs, representatives, successors, and assigns.
15. HEADINGS.
The subject headings of the sections of this Agreement are included for the purposes of
convenience only and shall not affect the construction or the interpretation of any of its
provIsIOns.
16. ENTIRE AGREEMENT; MODIFICATION.
This Agreement constitutes the entire agreement and the understanding between the
parties, and supercedes any prior agreements and understandings relating to the subject manner
of this Agreement. This Agreement may be modified or amended only by a written instrument
executed by all parties to this Agreement.
III
III
III
-5-
2011-56
1
2
VENDOR SERVICE AGREEMENT
FAIRVIEW FORD SALES INC.
3 IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day
4 and date set forth below.
5 Dated: 3h~ ,2011 es, Inc.
r
6
By:
7
8
9 Dated "3/1-3 ,2011
10
11 Approved as to Form:
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-6-
2011-56
Attachment "1"
Fairview Ford Sales, Inc.
P,O. Box 5518
SAN BERNARDINO, CAUF. 12412
Telephone {IOI, 884-1281
....J
December 16, 2010
City of San Bernardino
Fleet Division
182 S. Sierra Way
San Bernardino, CA. 92408
RE: Purchase of (5) Autocar Refuse Trucks
Dear Mr. Johnson,
Here is the breakdown for the above rElferElncadpurchase: ,
2
Front Loaders @ $282,&'19.00 each.
Autoloaders @ $345,600.00 each.
$221,712.00
$565,298.00
$691,200.00
1
Roll Off@ $221,712.00 each.
2
Doc and Handling Fee
$2250.00
---------
TOTAL
$1,480,460.00
Ca. Tire Fee
$133,241.40
EXEMPT
$375.00
$105.00
Sales Tax (9%)
Fed Excise Tax
DMV
------------------------------
GRAND TOTAL
$1,614,181.40
Thank you for this opportunity,
~~
Todd Eff
Commercial Fleet Manager
Fairview Ford
:,
.
80 3811d
2011-56
~1Iy~!~TOK
oo-"';~~
(Ioolo _: 00012564
floIo-!1'...DON IOIINION ROLJ..lR
an' OF IANBIlIINAGUlO
1111812010
Quote Summary
All figure' _ in US doIlara
Canadian dellIera fe(jl1ft Cuuuiian doll&l'&
ll{J1J1J'JI11N1' floe Lt... ,,# &tCll
ACl<'" 211.711
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(JlTt'IIIlECOImlACl'n......
LA1"BICAm;ElJ..A'r'k:t'II JIIlIm
~stl1ICHAaGE
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TOTAL1lQOI\'NIlNTPB1CB
t1lAIJE 11'1
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$/t/;l.nIQ
2011-56
_1'..001< JClHIi80N
an OF SAN 1dl1tNAImINO
All fiIuMs arc in us daIWa
Canlldi... dealers noqalre CaIwfian dollars
UCII'
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.....101 1
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'i
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Quote Summary
Bf1UJnlENT AuTo Ln.d .,.,p
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SlN(a.BBlGBT KANDDldVZCA8
AIJI:Jl'rDf/ll,.~awDAGES
." suttc:HAMJe
~PIlJl::E"""""""
rACTCaY CQN11lA.CT MIJtJIIlICAtIOfiI
OIJTSIllIOOJIfnACl"..-r
LA'I1!IC.NI:IllLA"""'-
.ADDn1f.)ll(Al.SlJ1tryf".nK
DI!lOIl1"
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mrALEQUJI'NI!NTPPOll
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omDe&a<lE8
.....
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51',,1'8 TAXIIJ'I'ItR 1l'B6S
torAL QUarE
J::q.Q~~
I (/''l j~ol/)
Dou f
2011-56
_FwIX>>l JOIIN~N
crt'\' aF lL\N JlllllNAUIl<O
11111112010
All tlpes arc in US d<illan
Cah*iian dcalcn. RqUin: Canadian dollan
E.tm
.-
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.
....
.
.
.
.
~""
.
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'{
.....Iznl : :llIl00l2J201lA
.... 1 of I
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2.'03~5PlUl'1T
.;.:J3 iliA
Lf
1:61:098E606
LP:P, ,,01:/,,/1:0
2011-56
Oty of San Bernardino
Public Services Department
Fleet Division
.
Autocar New Truck
Euhanced Warranty/Service Package
-:;; FOr a-i<<Wifof~:y;.;(d:~~ ~__ilni.(,i2M~-w8nanIable
repainl ~ (UIat ato~r"".~f~ by:tb8 ~'YIi."~Z;uer)will
be~ltlpIIired-at:~~.ui!jeby LA> ~LJ",--.._ ,pidredup.
repaiNd aud cIo~ badcto: 1ho:oIsliJlneibyUr F(lfl-1'''-f11-IN./J~Qf,
towed'w LA-. H.n4-'~""u.-- ~~. ~.QIHi\'e~ sbuttIing,
aud I o..towingfurdie~.~willbeat Go.OlOlIt~cbecustomer. futhe"
evem that tho Rq~ repa3- is dtoied warranty GOlnpelI.S8tion by 1he respective
_...--nr, tbeo.tho CollttOr1tie->provided se<ViC8 will be biI100 to the ~er.
All deciaioll8 ~ningwlwthecto Eepair at ~ site, abuUle the UDit ae tow
willbemadeattho8llle~of ~#UJ(,wrl-'N1f; cThis~
applicsro all ~ cbas8is.oo ~tIain ~ LNG fuel system, llI1d
u..&...v.lA8k: ~ S)~ aad is limitedlXltbtdunlliollOftbe w...,.dI.y
covsasebythe I~" OHM. Nolo: The nsllllI8 ooJIeclion body, its ClOIItro1s
IIlIIlICllIIT arieI<<reUDtplo"wor"".e...dbythisPat'" !l~ "
)> 'lbIl M.&m.t LelkDfb.<Aioi1 8)....... 00 the ~ -will be a~ lit tho
.... ~.......:- . . of.oS- . . ""---=-CHP
Q_Oo'~ 8_..-........" __CimIlBperJllll'm-..........-
cil1e 13 ~ 8IId a -V"tjd.h.v. Form" fiIrm ~ furlJIfeompliallt
vebide. 11Iis Selvi<lo wm be I""ilu..ed by -1rfiJ ff u.f )UJ Ie-€: . "(ae 8Il..,m
~ by 1l::EY... :) lIIIII will A:t at dlePmdlale DlleofdlevdUd.oaad
.......... fix- a~period. 'lbIn will be no eolItfD die ~ fiir the
in8pocCiorI&.
)> At or 8lxiuttwo yeat8 from the pwdlueoftbe ~ thlllNG-uukwill be "reo
~. lluuClrvicewillbepo:a&".-IbyAW' fft-P) rl/lRrR '-. (OI:an
qeat lIpIlCIloted by A- (- 1/..) at DO ClOlt to die w"-- tiJrthe "reo"ql)"
prlIClIlCiuR.
AFV Scott LUGem
G,men:ll Manager
FLEET SERVICE
A ~1"fhs.trJ_C#II~
OttJerLcx:alivns:
AOlliskln,AL
(877) 520-8090
Nashville, TN
(615) 301-5300
14642 Ranchc Vista Or.
Fonlana CA, Q2330
Tal: (909j 350"750f)
F,J)r: (909) 350-9852
Cell: (909) 9178026
~ltlcero@{abind_=m
ID'&I_f'!tumt...CO..1lI,
l
I
J
11/29/2010 17:15
9093850292
, I
2011-56
VAL EFF
PAGE 02
t
<!75f)
FAIltVlEWFORD
FLEET & TRUCK CENTER
.. W.28dS11lBl.
p.o. Jos. 5516
SAN URNARDINO. CA. 9241:&
(909) 386-0281 or I'u: (909) 386-0292
->
11/29/10 12:52:25
Dealer: F71156
pag.: 1 of 2
Order ~ype: 58 Price Level: 130
fO IIUlIlber:
VEHICLE ORm:R CllNFIIllIATIOIl
2011 r-SERIES so
Order 110' 0000 Priority: A3 ord Fl:1J: QC414
Ord PEP, 66DA CUat/rlt II.....: CITY OF SB
RETIIIL
FSG F550 4X2 CHASIC $33515
201" """'''RUE
lI1 OXFORD lIHlTE
A VNYL 40/20/40
S 9~
660A PllEF EQUIP l'IIG
.XL TRD!
572 .AIR COIIDITIONEa
. WEll STI!:IVCLK
99Y 6.8L EFI VI0 EN
44T 5-SPO AO'1'OMll'rIC
TFB :225 BSlf AS 19.5
XSL 4.88 LTO SLIP 360
liSM PAYLD PLUS CPGR 1155
19500' GVllR PKG
90L
RETAIL
PWR 1(1011' G'IlOtIP $850
TELl: 'l'T MIR-PlIR
JOB 12 BUILD
MOLDED IILX STEP
50 STATE E1USS
SPAI\El TIIlE/llIlLQ
Jl\CI(
18B
425
320
IlC
350
lie
61J
Ne
lie
NC
TOTAL IlASE AIl0 Ol"l'IOIIS 37525
TOTAL J7525
11/29/10 12:52:32
Dealer: n1156
1>a9.' 2 of 2
Order Type' 58 1>ri.... Laval: 130
1'0 N_r.
->
VEIIICLS OIWER CONFIIlIIATIOIl
Order No.
Ord PEP.
2011 r-sERIES so
0000 Priority: A3 Ord FIN. QC414
li60A.Ca8t/Flt Name. CITY or S8
RETAIL
IIC
65Z
794
lIFT AXLE TJlIlJ(
PRICE CXlIlCESSN
RDlARJ(S TI\AIUR
iIlP DLR IJC:r JII)J
SP !'LT ACCT CI\
roEL CIII\IIGE
NE'l' XlIV Fl.T ,'tlPT
PRICED DORA
DEST A1iO DELIV
B4A
RETAIL
IIC
'lie
97!,
TOTAL 1lASF: A1iD OPTIONS 37525
TOTAL 3J525
~
11/29/2010 17:15 9093850292
---- -.... .... ,..........u III"L.l'llIIl"v
2011-5f.
VAL EFF
0096n1100
PAGE 03
p.3
HREMlnc.
Estimate
DIClo I e.:--l
111'.lll1.ll10 ~ .
-,-
crrY OF &AN1IEIUWlDINO
m 80UTH S1EllU WAY
SAN IlIWWlDlNO CA9240I
.....,.
~ DeocriplIan Qb' eo.t TolIII
ItI!MOVE WOOD STAIm aoDV f'RONI SERvICE TRuoC~ 0.00 o.ror
AND lNST.o.Lte!I otl NEW IlOIUl nltJo:.
'. .,
~Cll NEW WOOD STAKES 0.00 o.DUT
. JIIIlW BBD I'AINT 1 O.GO ll.OOT
JoI6W MATI!JUAL 1 ~oo 2,)80.ll0T
lAIIOIl. l.f.BOll RllI'A1R 5:1 411.00 2,640.00
WARKANlY AIL OUR REPAIIlS HAVE 6 MONTIt WARRANTY 0.00 0.00
ON JIOIIMAL USlL.TIIIS wtdl.KANI'Y l)OES NOT
COVER NI!(lLlQllH'CIl Ol.POORMAlNTENANCE
REPNll Oi'I'1ON'AL Cl\AlI5IS snmcH I 1,100.00 t,IOO.oo
W.~........._II Subtotal
~tCO.oo
sal.. Tax (8.0%) !l2IUO
Total $1,(1)4.2l1
('
14{l~ Miller Drive' Cellon, CA 92324
Ofl\ce (909) 872-1195' (90Q) 872-1112' Fax (909) 812-1100
7
PAGE 04
~ 5]) 11-29-10
11.129/2010 17: 15 9093850292 2011-5<1AL EFF
FAIRVIEW FORD - RETAIL - Work. Sheet
Custcxner:
Herne PhI:
Work. PhI:
Salespsn:
~-
Stock. #: <NEW>
Purchase:
Trade-In: N/A
Bank.
Price
Accessories
Sales Tax
Service Agreement
Cash Pri ce
~V
Tire Fee
Insurance Premiums
Total Purchase
Trade-In
Less pay-Off
Net Trade-In
Deferred 00..Tl
Amount Paid N(1;oI
Total D<w1payment
.Amount Financed
36.697.00
.00
3,302.73
.00
39.999.73
.00
12.25
.00
40.011. 98
.00
.00
.00
.00
.00
.00
40,011.98
CUSTOMER'S ACCEPTANCE
<6
. .
11/29/2010 17:15
9093860292
2011-5Ji"L EFF
PAGE 05
..
@
FAlRVlEWFORD
FLEET" TRUCK CENTER
lOll w. W STIlD:l'
P.o.Jox5516
SAN IIDlNAIlDlNo. CA. t2411
(909) 386-0281 or Fa: (909) 386-0292
->
VEHICLE 0R0f:J\ COIIll'I1lIIIlTIOII
2011 F-8ERIES SO
Ordel: No: 0000 Pdority, A3 Ord !'IN: acuc
Ord PEP: 660A CUIOt/!'1t N....: CITY OF 511
IIETAIL
FSG l!'550 C][2 CIWI/c U3515
201" 1I!I1!'r.T.~
Z1 OXFOlWlIIIIT&
A VNYL 40/20/40
8 STEEL
6601l PREll' EQUtp PJIG
. XL RIM.
512 .AIR calDITIOIIER
.AII/111 8TElVCLIt
99Y 6.8L tFI VlO IN
CCT 5.91'0 ~TIC:
Tn .225 IISIf AS 19.5
X8L C.88 LTD atIp
68N p"no 1'Lll8 UPGR
U500. GV1lIl PJlG
->
.11/29110 12:53:49
Deal.l:: 1'11156
Page: 1 of 2
Order Type: .9 Price Le'N1: 130
l'O 1iIUolbel::
gaL
RETAIL
PlIR I!:QlJIP GROllI' $850
'1'El:.I!: TT IttR-PIIR
JOB '2 aon.D
lIOLIlSD aLk STEP
50 STATZ DISS
5pME 'rIRE/lIIILQ
.J)lCJ(
18B
425
320
IIC
350
IIIC
61J
NC
IIC
Me
TO'tAL IWlE llIiD llPT1OlI8 37525
TOTAL 37525
360
1155.
VEHICLE ORDER COIIll'INaTIOIl
2011 F-9ERIES SD
0000 Pdority: A3 Ord FIR: cen4
660A cu.et/Flt _: CITY OF SB
RE'rAIL
IIC
Order No:
o:t:d PEP,
65Z
794
AfT JlXI.& TANK
PIUa: COHC&SSN
I\DGUU(8 TllAILER
51' DLR N:;Cf J\DJ
SP FLT Al:cT CR
FlIEL C:III\RGE
Nft IRV nT on
. pRIC&D DORA
DtsT AlID DELIV
B4A
'rO'l'AL IllISE AlID 01"1'10118 37525
TOTAL 31525
11/29/10 12:53:56
Dealer: F7US6
Page: 2 of 2
Orde% Type: 5B Price Level: 130
PO Mud>er:
UTAIL
llC
He
975
Cf
11/29/2616 17:15 9693866292
. .~. ~~ ,... ....,,,10..1",, 11/,,"""'11 "...\,,1
2011-5~AL EFF
llUYlll~llUU
PAGE 06
p.2
HREM 1Dc.
estimate
111::10 I ~;.I
Name I Mdr.-
ctrY IF !IAN BIlDlAIUlINO
II1I1Ol1'1ll SIIlUA WAY
SAN IlElUlAllDINOCA ~
Pnljoct
,
IlonI .~'b"':"'~~l' -I QIy C'* T.....
REMOVE WOOO!ffAKE 80~ FIlOM SEIl.VlCE TlUlCK~) 0.00 O.ooT
ANI> IN!ITALUlU ON MEW PllRD mUCIC
lIBPI.ACE NIlW 1IlOO0 STMBS 0.00 o.oor
R!I'lACE NEW HYOllA1/LlC MOJ'OR o.go o.oor
Kl!PAIR 6ACK!l5O W/NEW uCJiml 0.00 0.00
NEW BW PAINI' 0.00 o.oar
"
NllW MATI!RlAl. 1 2,94S.lIlI :!,94s.oar
LABOR. I.-<UlOllIUll'J\IR ~ '1.IlO 3,120.00
WARRANTY AU- OORIlI!PADtS W.VE6 MONTH WAllRANIY 0.00 0.00
ON NORMAL USE. l1IlS wAlllWUY.D06S NOT
OOval NeGLlOENCE OR I'OOlI. MAJH11;NANCE
REPAIR OPTIONAL CRA9SlS S11U!CH 1 1.JOl1.00 1,100.00
"'.____buIiDo>flll! SubtoDI
S7,.6~UJO
..... Tu C',~) $2M.DS
Total $11,130.05
1-485 MMI.... Ot1Ye . Collon, CA 923Z4
0llic8 (909) 872-1195' (909) 872-1112' Fax (909) 812-1100
10
11/29/2818 17:15 9893858292
FAIRVIEW FORD - RETAIL - WOrle. Sheet
CustOOler:
HOOle Phi:
WorK Ph#:
Salespsn:
2011-SI1AL EFF
Stocle. f: <NEW>
Purchase:
Trade-In: N/A
Bank
PAGE 87
11-29-10
Price
Accessories
Sales Tax
Service Agreement
Cash Pri ce
lJo1V
Tire Fee
Insurance Premiums
Total Purchase
Trade-In
Less Pay-Off
Net Trade- In
Deferred Do..T1
Mlount Paid NON
Total O<w1payment
Amount Financed
37.697.00
.00
3.392.73
.00
41.069.73
.00
12.25
.00
41.101. 98
.00
.00
.00
.00
.00
.00
41.101. 98
CUST{)Io1ER'S ACCEPTANCE
11
11/29/2010 17:15
9093860292
2011-5~AL EFF
PAGE 08
.'
(-4153)
I'~VJEW lORD
FLEET & TRUCK CENTER
_ w. W S'J.1U:I'I"
..0... 551'
&N ma:N.AJlDlNo. CA. fZ411
(909) 386-&81 or I'u: (9tW) 386-0291
WIIIC1.I: 0RDEll COIIFIMIl.TIOII
11/29/10 12,55,57
UNler, nllS6
Pa~: 1 of 2
Order type, 58 Price Level, 130
l'O HllaIbe%.l
->
2011 f-SERIES SO
Order No: 0000. Pdority: 113 Ord nIl: QC414
Qrd PEP: 660A Cqat/nt 11_: CIft or 58
llSTAIL
rSG r550 4X2 caaa/c $33440
189"_"'.82
Z1 OX!'OIID IllIIft
A VNYL 40/20/40
S STIlEL
660A PIlEF BQO%P PIIIG
. XL TItIII
572 .AIR COIIOITIOllU.
.lIII/l'Il S'1'I\\VCLX
99Y 6.81. EFt V10 EM
UT 5-SPD IW'1'CIlII.1'IC
TFll :225'1ISW AS 19.5
X8L ..88 LTO SLIP 360
68N PAYLD PLUS UPGR 1155
19S00' GVIIR ~
901.
RB'rAIL
PWR IlQIlIp GROOP $850
'1'ELE T1' IIIR-PWR
.JOB 12 BUILD
JIOLDED JILl( BTBP
50 STAn: DlI8S
SPAlQ; UII!:/llIILQ
Jl\CK
320
IIC
350
llC
188
425
61J
lie
IIC
IIC
i'OTAL BkSE AND OPTI0II5 37730
TOTAL 37730
->
VBIIIcts OIUII:II CXlIIFIRNA'l'IOIl
11/29/10 12,5,,35
llNler, M1156
Page, 2 ot 2
Order :l'yPe: 5B Price r.v.l: 130
l'O IIwober:
llETAIL
62R
65&
79.
TRAIlS PTo PRO\'
Arr AXLE TlUlK
l'RJ:CE: <XlIICt:SIlII
RaGIIUal TMIloIR
SP. DLR ACC'1' AllJ
S1' !'L'l' ACC'1' CJl
I'OEL CIWIGI: I
llE'1' IHY n.t 0",
PlIICED DORA
DEST 11110 DlLIV
2011 r-SERIES 80
DODO Pdodty: A3 Ord FUI: QC41(
6S0A CUat/Fl1; __, CITY OF 8B
RI:TluL
$280
MC
Order 110'
Ord 1'1:1',
IlU
He
IIC
975
TOTAL BkSt lUlD Ol"l'I0II8 ]~J]O
TOTAL ]7730
..1..;;l
11/29/2010 17:15 9093860292
. --.- ._....,.. I U'lolo...IVI 1111\,,0
2011-5~AL EFF
9098721100
PAGE 09
p.2
HREMInc.
Estimate
11:10 I ~. I
.....1 Aod~
CITY OF SAHBBRNA1UlINO
III lllXJTfl8l~ ....,. y
SAN BIlRHARDlNO CA. QIOI
~ 53
f PIlljoct
,..... DIiIoripIIan QW " Coot TaW
- 3 BOXBS BJN.(;AIUUER BODY MOIJNl'EO ON 5~ 1 0.00 o.ror
FORD Tlt.UCK. ':.
NEW COMPLF:l1i BOOY 1 0.00 O.ror
lmTAU. USED UP-DOWN IN.our I 0.00 O.ror
CIdUUER. AllliEM8Lll Wlt:Yl.INOEIlS
NEW MAlEItlAI. I 4,800.011 4,1IOO.nor
LABOR ~ R,IlP"I)l. 145 - 6.NO.OO
W A.RIU.){)y A1L0Ull JIlI'AIRS IIAVll,6MOKt'H WAIlAAl'TY 0.00 \l.OO
ON NOIlMi\I. USl!. 11lI5 willlRANTY DCIlS NOT
COVEl. Kl'.QI.lGIDICE OJl.I'OOIlMAlNIENAl'ICE
W.____II.I...1I11 SubtDtlll 11I,7fnUO
a.a- Tax CUJ,.,) S43Z-00
Total 112,lnOO
1485 MlIIDr orivol . Cellon, CA 92324
0lf1Cl8 (llO9) 872-11115' (gag) 872.1112' Fill< (90S) 872-1100
I:?
11/29/2010 17:15 9093860292
2011-5tAL EFF
PAGE 10
~:i;) 11-29-10
FAIRVIEW FORD - RETAIL - Work. Sheet
Custaner:
Hane Ph#:
Work. Phi:
Salespsn:
Stocle. ,,: <NEW>
Purchase:
Trade-In: N/A
Bank.
Price
Accessories
Sales Tax
Service Agreement
Cash Price
DMV
Tire Fee
Insurance Premiums
Total Purchase
Trade- In
Less Pay-Off
Net Trade- In
Deferred DoNn
Mlount Pai d N()r/
Total Olw1payment
Amount Financed
41.796.00
.00
3.761.64
.00
45.557.64
.00
12.25
.00
45.569.89
.00
.00
.00
.00
.00
.00
45.569.89
CUSTOMER'S ACCEPTANCE
('1
6' Pinnacle Public Finance
1>. BankUnited Company
2011-56
MASTER EQUIPMENT LEASE PURCHASE AGREEMENT
This Master Equipment Lease Purchase Agreement dated as of March II, 20 II and entered into between Pinnacle Public Finance,
Inc., a Delaware corporation ("Lessor"), and City of San Bernardino, a body corporate and politic existing under the laws of the
State of California ("Lessee").
1. A2:reement. Lessee agrees to lease from Lessor certain
"Equipment" as described in each Equipment Schedule (Exhibit
A), which together with a Rental Payment Schedule (Exhibit A-
I) constitute a "Schedule", subject to the terms and conditions
of and for the purposes set f0l1h in each Lease. Items of
equipment may be added to the Equipment from time to time by
execution of additional Schedules by the parties hereto and as
otherwise provided herein. Each Schedule and the tenns and
provisions of this Agreement (which includes all exhibits
hereto, together with any amendments and modifications
pursuant thereto) which are incorporated by reference into such
Schedule shall constitute a separate and independent lease and
installment purchase of the Equipment therein described and are
referred to herein as a "Lease",
2. Term. The "Commencement Date" for each Lease is the
date when interest commences to accrue under such Lease
which date shall be the earlier of (i) the date on which the
Equipment listed in such Lease is accepted by Lessee in the
manner described in Section II, or (ii) the date on which
sufficient monies to purchase the Equipment listed in such
Lease are deposited for that purpose with an escrow agent, or
(iii) the date sufficient monies are set aside for acquisition of
Equipment as evidenced in Exhibit D, if applicable. The
"Lease Term" for each Lease means the Original Term and all
Renewal Terms therein provided and for this Agreement means
the period from the date hereof nntil this Agreement is
tenninated. The "Original Tenn" means the period from the
Commencement Date for each Lease until the end of Lessee's
fiscal year or bienninm (as the case may be) (the "Fiscal
Period") in effect at such Commencement Date. The "Renewal
Term" for each Lease is each term having a duration that is
coextensive with the Fiscal Period. .
3. Representations and Covenants of Lessee. Lessee
represents, covenants and warrants for the benefit of Lessor on
the date hereof and as of the Commencement Date of each
Lease as follows: (a) Lessee is a public body corporate and
politic duly organized and existing under the constitution and
laws of the State with full power and authority nnder the
constitution and laws of the state where the Lessee is located
("State") to enter into this Agreement and each Lease and the
transactions contemplated hereby and to perfonn all of its
obligations hereunder and under each Lease; (b) Lessee has
duly authorized the execution and deliver~y of this Agreement
and each Lease by proper action of its governing body at a
meeting duly called and held in accordance with State law, or
by other appropriate oflicial approval, and all requirements
have been met and procedures have occurred to ensure the
validity and enforceability of this Agreement and each Lease:
(c) Lessee will do or cause to be done all things necessary to
preserve and keep in full force and effect its existence as a bod)
corporate and politic; (d) Lessee has complied with such public
bidding requirements as may be applicable to this Agreement
and each Lease and the acquisition by Lessee of the Equipment
as provided in each Lease; (e) during the Lease Tenn, the
Equipment will be used by Lessee solely and exclusively for the
purpose of performing essential governmental or proprietary
functions of Lessee consistent with the permissible scope of
Lessee's authority; (I) Lessee will annually provide Lessor with
current financial statements, budgets, proof of appropriation for
the ensuing Fiscal Period, and such other financial information
relating to the ability of Lessee to continue each Lease as may
be requested by Lessor; and (g) Lessee has an immediate need
for the Equipment listed on each Schedule and expects to make
immediate use of the Equipment listed on each Schedule.
4. Tax and Arbitra1!e Reoresentations. Lessee hereby
represents as follows: (a) the estimated total costs of the
Equipment listed in each Schedule will not be less than the total
principal portion of the Rental Payments listed in such Rental
Payment Schedule; (b) the Equipment listed in each Schedule
has been ordered or is expected to be ordered within 6 months
of the Commencement Date, and all amounts deposited in
escrow to pay for the Equipment, and interest earnings, will be
expended on costs of the Equipment and the financing within 3
years of Commencement Date; (c) no proceeds of any Lease
wi 11 be used to reimburse Lessee for expenditures made more
than 60 days prior to the Commencement Date or, if earlier,
more than 60 days prior to any official action taken to evidence
an intent to finance; (d) Lessee has not created or established,
and does not expect to create or establish, any sinking fund or
similar fund (i) that is reasonably expected to be used to pay the
Rental Payments, or (ii) that may be used solely to prevent a
default in the payment of the Rental Payments; (e) the
Equipment listed in each Schedule has not been and is not
expected to be sold or otherwise disposed of by Lessee, either
in whole or in part, prior to the last maturity of Rental
Payments; (I) Lessee will comply with all applicable provisions
of the Internal Revenue Code of 1986, as amended ("Code"),
including without limitation Sections 103 and 148 thereof, and
the applicable regulations of the Treasury Department to
maintain the exclusion of the interest components of Rental
Payments from gross income for purposes of federal income
taxation; and (g) Lessee intends that each Lease not constitute a
"true" lease for federal income tax purposes.
5. Lease of EQuipment. Upon the execution of each
Lease. Lessor demises, leases, transfers, and lets to Lessee, and
Lessee acquires, rents, leases and hires from Lessor, the
Equipment in accordance with the terms thereof. The Lease
Term for each Lease may be continued, solely at the option of
Lessee. at the end of the Original Term or any Rene\val Term
for the next succeeding Renewal Term up to the maximum
Lease Tenn"set forth in such Lease. At the end of the Original
Term and at the end of each Renewal Term the Lease Term
shall be automatically extended upon the successive
appropriation by Lessee's governing body of amounts sufficient
to pay Rental Payments and other amounts payable under the
related Lease during the next succeeding Fiscal Period until all
Rental Payments payable under such Lease have been paid in
full, unless Lessee shall have terminated such Lease pursuant to
Section 7 or Section 22. The tenns and conditions during any
Renewal Tenm shall be the same as the tenms and conditions
during the Original Tenm, except that the Rental Payments shall
be as provided in the applicable Lease.
6. Continuation of Lease Term. Lessee currently intends,
subject to Section 7, to continue the Lease Term of each Lease
through the Original Tenm and all Renewal Tenms and to pay
the Rental Payments thereunder. Lessee reasonably believes
that legally available funds in an amount sufficient to make all
Rental Payments during the maximum Lease Term of each
Lease can be obtained. Lessee currently intends to do all things
lawfully within its power to obtain and maintain funds from
which the Rental Payments may be made, including making
provision for such payments to the extent necessary in each
budget or appropriation request submitted and adopted in
accordance with applicable provisions of law. Notwithstanding
the foregoing, the decision whether or not to budget and
appropriate funds or to extend the applicable Schedule for any
Renewal Tenm is within the discretion of the governing body of
Lessee.
7. Nonaooroorlation. Lessee is obligated only to pay
such Rental Payments under each Lease as may lawfully be
made from funds budgeted and appropriated for that purpose.
Should Lessee fail to budget, appropriate or otherwise make
available funds to pay Rental Payments under any Lease
following the then current Original Term or Renewal Term,
such Lease or Leases shall be deemed terminated at the end of
the then current Original Term or Renewal Term. Lessee
agrees to deliver notice to Lessor of such tennination at least 30
days prior to the end of the then current Original Term or
Renewal Tenm, but failure to give such notice shall not extend
the tenm beyond such Original Term or Renewal Tenm. If any
Lease is terminated in accordance with this Section, Lessee
agrees to peaceably deliver the Equipment to Lessor at the
location(s) to be specified by Lessor.
8. Conditions to Lessor's Performance. This Agreement
is not a commitment by Lessor to enter into any Lease not
currently in existence, and nothing in this Agreement shall be
construed to impose any obligation upon Lessor to enter into
any proposed Lease, it being understood that whether Lessor
enters into any proposed Lease shall be a decision solely \vithin
Lessor's discretion. Lessee will cooperate with Lessor in
Lessor's review of any proposed Lease. Lessee understands that
Lessor requires certain documentation and information
necessary to enter into any Lease and Lessee agrees to provide
Lessor with any documentation or information Lessor may
request in connection with Lessor's review of any proposed
Lease. Such documentation may include, without limitation,
documentation concerning the Equipment and its contemplated
use and location and documentation or information concerning
the financial status of Lessee and other matters related to
Lessee.
2011-56
9. Rental Pavments. Lessee shall promptly pay "Rental
Payments" as described in Exhibit A-I to each Lease,
exclusively from legally available funds, to Lessor on the dates
and in such amounts as provided in each Lease. Lessee shall pay
Lessor a charge on any Rental Payment not paid on the date such
payment is due at the rate of 12% per annum or the maximum rate
penmitted by law, whichever is less, from such date until paid.
Rental Payments consist of principal and interest portions. Lessor
and Lessee understand and intend that the obligation of Lessee
to pay Rental Payments under each Lease shall constitute a
current expense of Lessee and shall not in any way be
construed to he a debt oj Lessee in contravention of any
applicable constitutional or statutOl}" limitation or requirement
concerning the creation oj indebtedness by Lessee, nor shall
anything contained herein or in a Lease constitute a pledge of
the general tax revenues, Junds or monies of Lessee.
10. RENTAL PAYMENTS TO BE UNCONDITIONAL.
EXCEPT AS PROVIDED IN SECTION 7, THE
OBLIGATIONS OF LESSEE TO MAKE RENTAL
PAYMENTS AND TO PERFORM AND OBSERVE THE
OTHER COVENANTS AND AGREEMENTS CONTAINED
IN EACH LEASE SHALL BE ABSOLUTE AND
UNCONDITIONAL IN ALL EVENTS WITHOUT
ABATEMENT, DIMINUTION, DEDUCTION. SET-OFF OR
DEFENSE, FOR ANY REASON. INCLUDING WITHOUT
LIMITATION ANY FAILURE OF THE EQUIPMENT TO BE
DELIVERED OR INSTALLED, ANY DEFECTS.
MALFUNCTIONS, BREAKDOWNS OR INFIRMITIES IN
THE EQUIPMENT OR ANY ACCIDENT,
CONDEMNATION OR UNFORESEEN CIRCUMSTANCES
11. Deliver\": Installation: Acceotance. Lessee shall order
the Equipment, cause the Equipment to be delivered and
installed at the location specified in each Lease and pay any and
all delivery and instal1ation costs in connection therewith.
\\Then the Equipment listed in any Lease has been delivered and
installed, Lessee shall immediately accept such Equipment and
evidence said acceptance by executing and delivering to Lessor
an Acceptance Certificate (Exhibit B). Lessor shall provide
Lessee with quiet use and enjoyment of the Equipment during
the Lease Tenm.
12. Location: Insoection. Once installed, no item of the
Equipment will be moved from the location specified for it in
the Lease on which such item is listed without Lessor's consent,
which consent shall not be unreasonably withheld. Lessor shall
have the right at all reasonable times during regular business
hours to enter into and upon the property of Lessee for the
purpose of inspecting the Equipment.
13. Use: Maintenance. Lessee will not install, use, operate
or maintain the Equipment improperly. carelessly, in violation
of any applicable law or in a manner contrary to that
contemplated by the related Lease. Lessee shall provide all
permits and licenses, if any, necessary for the installation and
operation of the Equipment. In addition, Lessee agrees to
comply in all respects with all applicable laws, regulations and
rulings of any legislative, executive, administrative or judicial
body. Lessee agrees that it will, at Lessee's own cost and
expense, maintain, preserve and keep the Equipment in good
repair and working order. Lessee will enter into a maintenance
contract for the Equipment that is acceptable to Lessor.
14. Title. Upon acceptance of the Equipment under a Lease
by Lessee. title to the Equipment shall vest in Lessee subject to
Lessor's rights under the Lease; provided that title shall
thereafter immediately and without any action by Lessee vest in
Lessor, and Lessee shall immediately surrender possession of
the Equipment to Lessor, upon (a) any termination of the
applicable Lease other than tennination pursuant to Section 22
or (b) the occurrence of an Event of Default. Transfer of title to
Lessor pursuant to this Section shall occur automatically
without the necessity of any bill of sale, certificate of title or
other instrument of conveyance. Lessee shall, nevertheless,
execute and deliver any such instruments as Lessor may request
to evidence such transfer.
15. Security Interest. To secure the payment of all of
Lessee's obligations under each Lease, upon the execution of
such Lease, Lessee grants to Lessor a security interest
constituting a first and exclusive lien on the Equipment
applicable to such Lease and on all proceeds therefrom. Lessee
agrees to execute such additional documents, in form
satisfactory to Lessor, which Lessor deems necessary or
appropriate to establish and maintain its security interest in the
Equipment. The Equipment is and will remain personal
property and will not be deemed to be affixed to or a part of the
real estate on which it may be situated.
16. Liens. Taxes, Other Governmental Char~es and
Utilitv Char~es. Lessee shall keep the Equipment free of all
levies,' liens and encumbrances except those created by each
Lease. The parties to this Agreement contemplate that the
Equipment will be used for governmental or proprietary
purposes of Lessee and that the Equipment will therefore be
exempt from all property taxes. If the use, possession or
acquisition of any Equipment is nevertheless determined to be
subject to taxation, Lessee shall pay when due all taxes and
governmental charges lawfully assessed or levied against or
with respect to such Equipment. Lessee shall pay all utility and
other charges incurred in the use and maintenance of the
Equipment. Lessee shall pay such taxes or charges as the same
may become due.
17. Insurance. At its own expense, Lessee shall during
each Lease Term maintain (a) casualty insurance insuring the
Equipment against loss or damage by fire and all other risks
covered by the standard extended coverage endorsement then in
use in the State and any other risks reasonably required by
Lessor, in an amount at least equal to the then applicable
"Purchase Price" of the Equipment as described in Exhibit A-I
of each Lease; (b) liability insurance that protects Lessee from
liability in all events in fonn and amount satisfactory to Lessor;
and (c) workers' compensation coverage as required by the laws
of the State; provided that, with Lessor's prior written consent,
Lessee may self-insure against the risks described in clauses (a)
and (b). Lessee shall furnish to Lessor evidence of such
insurance or self-insurance coverage throughout each Lease
Term. Lessee shall not materially modify or cancel such
insurance or self-insurance coverage without first giving written
notice thereof to Lessor at least 10 days in advance of sLlch
cancellation or modification. All such insurance described in
2011-56
clauses (a) and (b) above shall contain a provision naming
Lessor as a loss payee and additional insured.
18. Advances. In the event Lessee shall fail to keep the
Equipment in good repair and working order, Lessor may, but
shall be under no obligation to, maintain and repair the
Equipment and pay the cost thereof. All amounts so advanced
by Lessor shall constitute additional rent for the then current
Original Term or Renewal Term and Lessee agrees to pay such
amounts so advanced by Lessor with interest thereon from the
advance date until paid at the rate of 12% per annum or the
maximum rate permitted by bw, whichever is less.
19. Dama~e. Destruction and Condemnation. If (a) the
Equipment or any portion thereof is destroyed, in whole or in
part, or is damaged by fire or other casualty or (b) title to, or the
temporary use of, the Equipment or any part thereof shall be
taken under the exercise or threat of the power of eminent
domain by any governmental body or by any person, firm or
corporation acting pursuant to governmental authority, Lessee
and Lessor \vill cause the Net Proceeds to be applied to the
prompt replacement, repair, restoration, modification or
improvement of the Equipment to substantially the same
condition as existed prior to the event causing such damage,
destruction, or condemnation, unless Lessee shall have
exercised its option to purchase the Equipment pursuant to
Section 22. Any balance of the Net Proceeds remaining after
such work has been completed shall be paid to Lessee.
For purposes of this Section, the term "Net Proceeds" shall
mean (y) the amount of insurance proceeds received by Lessee
for replacing, repairing, restoring, modifying, or improving
damaged or destroyed Equipment, or (z) the amount remaining
from the gross proceeds of any condemnation award or sale
under threat of condemnation after deducting all expenses,
including attorneys' fees, incurred in the collection thereof. If
the Net Proceeds are insufficient to pay in full the cost of any
replacement, repair, restoration, modification or improvement
referred to herein, Lessee shall either (a) complete such
replacement, repair, restoration, modification or improvement
and pay any costs thereof in excess of the amount of the Net
Proceeds, or (b) pursuant to Section 22 purchase Lessor's
interest in the Equipment and in any other Equipment listed in
the same Lease. The amount of the Net Proceeds, if any,
remaining after completing such replacement, repair,
restoration, modification or improvement or after purchasing
Lessor's interest in the Equipment and such other Equipment
shall be retained by Lessee. If Lessee shall make any payments
pursuant to this Section, Lessee shall not be entitled to any
reimbursement therefor from Lessor nor shall Lessee be entitled
to any diminution of the amounts payable under Section 9.
20. DISCLAIMER OF WARRANTIES. LESSOR
MAKES NO WARRANTY OR REPRESENTATION,
EITHER EXPRESS OR IMPLIED, AS TO THE VALUE,
DESIGN, CONDITION, MERCHANTABILITY OR FITNESS
FOR PARTICULAR PURPOSE OR FITNESS FOR USE OF
THE EQUIPMENT, OR WARRANTY WITH RESPECT
THERETO WHETHER EXPRESS OR IMPLIED. AND
LESSEE ACCEPTS SUCH EQUIPMENT AS IS AND WITH
ALL FAULTS. IN NO EVENT SHALL LESSOR BE LIABLE
FOR ANY INCIDENTAL. INDIRECT, SPECIAL OR
CONSEQUENTIAL DAMAGE IN CONNECTION WITH OR
ARlSING OUT OF ANY LEASE OR THE EXISTENCE,
FURNISHING, FUNCTIONING OR LESSEE'S USE OF ANY
ITEM, PRODUCT OR SERVICE PROVIDED FOR TN ANY
LEASE.
21. Vendor's Warranties. Lessor hereby irrevocably
appoints Lessee as its agent and attorney-in-fact during each
Lease Term, so long as Lessee shall not be in default under the
related Lease, to assert from time to time whatever claims and
rights (including without limitation warranties) relating to the
Equipment that Lessor may have against Vendor. The term
"Vendor" means any supplier or manufacturer of the Equipment
as well as the agents or dealers of the manufacturer or supplier
from whom Lessor purchased or is purchasing such Equipment.
Lessee's sole remedy for the breach of such warranty,
indemnification or representation shall be against Vendor of the
Equipment, and not against Lessor. Any such matter shall not
have any effect whatsoever on the rights or obligations of
Lessor with respect to any Lease, including the right to receive
full and timely payments under a Lease. Lessee expressly
acknowledges that Lessor makes, and has made, no
representations or warranties whatsoever as to the existence or
the availability of such warranties by Vendor of the Equipment.
22. Pnrchase Ootion. Lessee shall have the option to
purchase Lessor's interest in all of the Equipment listed in any
Lease, upon giving written notice to Lessor at least 60 days
before the date of purchase, at the following times and upon the
following terms: (a) on the Rental Payment dates specified in
each Lease, upon payment in full of the Rental Payments then due
under such Lease plus the then applicable Purchase Price as
referenced in Exhibit A-I; or (b) in the event of substantial
damage to or destruction or condemnation of substantially all of
the Equipment listed in a Lease, on the day specified in Lessee's
notice to Lessor of its exercise of the purchase option upon
payment in full to Lessor of the Rental Payments then due under
such Lease plus the then applicable Purchase Price plus accrued
interest from the immediately preceding Rental Payment date to
such purchase date.
23. Assie-nment. Lessor's right, title and interest in and to
each Lease, including Rental Payments and any other amounts
payable by Lessee thereunder and all proceeds therefrom, may
be assigned and reassigned to one or more assignees or
subassignees by Lessor without the necessity of obtaining the
consent of Lessee; provided that any such assignment shall not
be effective until (a) Lessee has received written notice, signed
by the assignor, of the name and address of the assignee, and
(b) it is registered on the registration books. Lessee shall retain
all such notices as a register of all assignees in compliance with
Section 149(a) of the Code, and shall make all payments to the
assignee or assignees designated in such register. Lessee agrees
to execute all documents that may be reasonably requested by
Lessor or any assignee to protect its interests and property
assigned pursuant to this Section. Lessee shall not have the
right to and shall not assert against any assignee any claim,
counterclaim or other right Lessee may have against Lessor or
Vendor. Assignments may include without limitation
assignment of all of Lessor's security interest in and to the
Equipment listed in a particular Lease and all rights in, to and
2011-56
under the Lease related to such Equipment. Lessee hereby
agrees that Lessor may, without notice to Lessee, sell, dispose
of, or assign this Agreement or any particular Lease or Leases
through a pool, trust, limited partnership, or other similar entity,
whereby one or more interests are created in this Agreement or
in a Lease or Leases, or in the Equipment listed in or the Rental
Payments under a particular Lease or Leases.
None of Lessee's right, title and interest in, to and under
any Lease or any portion of the Equipment listed in each Lease
may be assigned, subleased, or encumbered by Lessee for any
reason without obtaining prior written consent of Lessor.
24. Events of Default. Any of the following events shall
constitute an "Event of Default" under a Lease: (a) failure by
Lessee to pay any Rental Payment or other payment required to
be paid under a Lease at the time specified therein; (b) failure
by Lessee to observe and perform any covenant, condition or
agreement on its part to be observed or performed, other than as
referred to in subparagraph (a) above, for a period of 30 days
after written notice specifying such failure and requesting that it
be remedied is given to Lessee by Lessor; (c) any statement,
representation or warranty made by Lessee in or pursuant to any
Lease shall prove to have been false, incorrect, misleading or
breached in any material respect on the date when made; or (d)
Lessee institutes any proceedings under any bankruptcy,
insolvency, reorganization or similar Jawor a receiver or similar
official is appointed for Lessee or any of its property.
25. Remedies on Default. Whenever any Event of Default
exists, Lessor shall have the right, at its sole option without any
further demand or notice, to take one or any combination of the
following remedial steps: (a) by written notice to Lessee, Lessor
may declare all Rental Payments payable by Lessee pursuant to
such Lease and other amounts payable by Lessee under such
Lease to the end of the then current Original Term or Renewal
Term to be immediately due and payable; (b) with or without
terminating the Lease Term under such Lease, Lessor may enter
the premises where the Equipment listed in such Lease is
located and retake possession of such Equipment or require
Lessee at Lessee's expense to promptly return any or all of such
Equipment to the possession of Lessor at such place within the
United States as Lessor shall specify, and sell or lease such
Equipment or, for the account of Lessee, sublease such
Equipment, continuing to hold Lessee liable for the difference
between (i) the Rental Payments payable by Lessee pursuant to
such Lease and other amounts related to such Lease of the
Equipment listed therein that are payable by Lessee to the end
of the then current Original Term or Renewal Term, as the case
may be, and (ii) the net proceeds of any such sale, leasing or
subleasing (after deducting all expenses of Lessor in exercising
its remedies under such Lease, including without limitation all
expenses of taking possession, storing, reconditioning and
selling or leasing such Equipment and all brokerage,
auctioneer's and attorney's fees), subject, however, to the
provisions of Section 7 hereof. The exercise of any such
remedies in respect of any such Event of Default shall not
relieve Lessee of any other liabilities under any other Lease or
the Equipment listed therein; and (e) Lessor may take whatever
action at law or in equity may' appear necessary or desirable to
enforce its rights under such Lease ?r as a secured part)' in any
or all of the Equipment. Any net proceeds from the exercise of
any remedy under a Lease (after deducting all costs and
expenses referenced in the Section) shall be applied as follows:
(I) if such remedy is exercised solely with respect to a single
Lease, Equipment listed in such Lease or rights thereunder, then
to amounts due pursuant to such Lease and other amounts
related to such Lease or such Equipment; or (ii) if such remedy
is exercised with respect to more than onc Lease, Equipment
listed in more than one Lease or rights under more than one
Lease, then to amounts due pursuant to such Leases pro-rata.
26. No Remedv Exclusive. No remedy herein conferred
upon or reserved to Lessor is intended to be exclusive and every
such remedy shall be cumulative and shall be in addition to
every other remedy given under a Lease now or hereafter
existing at law or in equity.
27. Notices. All notices or other communications under
any Lease shall be sufficiently given and shall be deemed given
when delivered or mailed by registered mail, postage prepaid,
to the parties hereto at the addresses listed below (or at such
other address as either party hereto shall designate in writing to
the other for notices to such party), or to any assignee at its
address as it appears on the registration books maintained by
Lessee.
28. Release and Indemnification. To the extent permitted
by State law, and subject to Section 7, Lessee shall indemnify,
release, protect, hold harmless, save and keep harmless Lessor
from and against any and all liability, obligation, loss, claim, tax
and damage whatsoever, regardless of cause thereof, and all
expenses in connection therewith (including, without limitation,
attorney's fees and expenses, penalties connected therewith
imposed on interest received) arising out of or as result of (a)
entering into any Lease, (b) the ownership of any item of
Equipment, (c) the ordering, acquisition, use, operation,
2011-56
condition, purchase, delivery, rejection, storage or return of any
item of Equipment, (d) any accident in connection with the
operation, use, condition, possession, storage or return of any
item of Equipment resulting in damage to property or injury to
or death to any person, and/or (e) tbe breach of any covenant or
any material representation contained in a Lease. The
indemnification arising under this Section shall continue in full
force and effect notwithstanding the full payment of all
obligations under all Leases or the termination of the Lease
Term under all Leases for any reason.
29. Miscellaneous Provisions. Each Lease shall inure to
the benefit of and shall be binding upon Lessor and Lessee and
their respective successors and assigns. References herein to
"Lessor" shall be deemed to include each of its assignees and
subsequent assignees from and after the effective date of each
assignment as permitted by Section 23. In the event any
provision of any Lease shall be held invalid or unenforceable by
any court of competent jurisdiction, such holding shall not
invalidate or render unenforceable any other provision thereof.
Each Lease may be amended by mutual \vritten consent of
Lessor and Lessee. Each Lease may be simultaneously
executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same
instrument. The captions or headings in this Agreement and in
each Lease are for convenience only and in no way defme, limit
or describe the scope or intent of any provisions or sections of
this Agreement or any Lease. This Agreement and each Lease
shall be governed by and construed in accordance with the laws
of the State.
IN WITNESS WHEREOF, Lessor and Lessee have caused this Agreement to be executed in their names by their duly authorized
representatives as of the date first above written.
(LESSOR)
Pinnacle Public Finance, Inc.
8377 East Hartford Drive, Suite 1]5
Scottsdale. AZ 85255
Sigmature:
n!~~~r~~~e~~o
~ \~5 \8-01 \
Name/Title:
Date:
(LESSEE)
City of San Bernardino
300 N. "D" Street, 4ili Floor, Finance
San Bernardino, CA 92418
Signature:
Name/Title:
Date:
APPUOVED AS TO FORM:
James F. Penman,
City Attorney
2011-56
EXHIBIT A
SCHEDULE OF PROPERTY NO.1
RE: MASTER EQUIPMENT LEASE PURCHASE AGREEMENT entered into as of March 11,2011, ("Agreement"), hetween
Pinnacle Public Finance, Inc. ("Lessor") and City of San Bernardino ("Lessee"). All terms used and not otherwise defined herein have
the meanings ascribed to them in the Agreement.
The following items of Equipment are hereby included under this Schedule to the Agreement.
To the extent that less than all of the Equipment subject to this Schedule has been installed and accepted by Lessee on or prior to the
date hereof, Lessee hereby acknowledges that a portion of the Equipment has not been delivered, installed and accepted by Lessee for
purposes of this Lease and Lessor hereby commits to provide funds in an amount sufficient to pay the costs to acquire and install the
Equipment. In consideration of the foregoing, Lessee hereby acknowledges and agrees that its obligation to make Rental Payments as
set forth in this Schedule is absolute and unconditional as of the date hereof and on each date and in the amounts as set forth in the
Rental Payment Schedule, subject to the terms and conditions of the Lease.
Ninety five percent of the financing costs are being used to acquire assets that will be capitalized.
DESCRIPTION OF EQUIPMENT
Quantity
Descriotion
Model No.
Serial No.
I
2
2
I
3
Ro II Off Refuse Truck
Front Loader Refuse Trucks
Side Loader Refuse Trucks
Street Sweeper
Ford F-SSO Trucks
Lessee hereby represents, warrants and covenants that its representations, warranties and covenants set forth in the Agreement are true
and correct as though made on the Commencement Date of Rental Payments under this Schedule. The terms and provisions of the
Agreement (other than to the extent that they relate solely to other Schedules or Equipment listed on other Schedules) are
hereby incorporated into this Schedule by reference and made a part hereof.
Dated: March II, 20 II
Lessor: Pinnacle Public Finance, Inc.
Lessee: City of San Bernardino
Signature:
~D'r~~
. Ben . Jime
SVP I OperAtinnq
d\'~'5 \d-tll/
,
Signature:
Name/Title:
Name/Title:
Date:
Date:
2011-56
EXHIBIT A-I
RENTAL PAYMENT SCHEDULE
RE: Schedule of Property No. I dated March 11,2011 to Master Equipment Lease Purchase Agreement dated
as of March 11,2011 between Pinnacle Public Finance, Inc., as Lessor, and City of San Bernardino, as Lessee.
Rate 2.8900%
Payment Payment Purchase Outstanding
Date Amount Interest Princioal Price Balance
PMNTII 3/11/2011 $2,090,406.11
1 9/11/2011 $165,999.37 $30,206.37 $135,793.00 $1,993,705.37 $1,954,613.11
2 3/11/2012 $165,999.37 $28,244.16 $137,755.21 $1,853,195.06 $1,816,857.90
3 9/11/2012 $165,999.37 $26,253.60 $139,745.77 $1,710,654.37 $1,677,112.13
4 3/11/2013 $165,999.37 $24,234.27 $141,765.10 $1,566,053.97 $1,535,347.03
5 9/11/2013 $165,999.37 $22,185.76 $143,813.61 $1,419,364.09 $1,391,533.42
6 3/11/2014 $165,999.37 $20,107.66 $145,891.71 $1,270,554.54 $1,245,641.71
7 9/11/2014 $165,999.37 $17,999.52 $147,999.85 $1,119,594.70 $1,097,641.86
8 3/11/2015 $165,999.37 $15,860.92 $150,138.45 $966,453.48 $947,503.41
9 9/11/2015 $165,999.37 $13,691.42 $152,307.95 $811,099.37 $795,195.46
10 3/11/2016 $165,999.37 $11,490.57 $154,508.80 $653,500.39 $640,686.66
11 9/11/2016 $165,999.37 $9,257.92 $156,741.45 $493,624.11 $483,945.21
12 3/11/2017 $165,999.37 $6,993.01 $159,006.36 $331,437.63 $324,938.85
13 9/11/2017 $165,999.37 $4,695.37 $161,304.00 $166,907.55 $163,634.85
14 3/11/2018 $165,999.37 $2,364.52 $163,634.85 $0.00
TOTALS $2,323,991.18 $233,585.07 $2,090,406.11
. COMMENCEMENT DATE: March 11,2011
City of San Bernardino
Signature:
Name/Title:
Date:
2011-56
EXHIBIT B
FINAL ACCEPTANCE CERTIFICATE
Re Schedule of Property No.1 dated March II, 2011 to Master Equipment Lease Purchase Agreement dated as of March 11, 2011 between Pinnacle Public Finance,
Ine., as Lessor, and City ofSao Bernardino, as Lessee
In accordance with the Master Equipment Lease Purchase Agreement (the "Agreement"). the undersigned Lessee hereby certifies and represents to, and agrees with Lessor as
follows
(1) All of the Equipment (as such lenn is defined in the Agreement) listed in the above-referenced Schedule of Property (the "Scheduk") has been delivered, installed
and accepted on the date hereof.
(2) Lessee has conducted such inspection and/or testing or the EqUipment listed in the Schedule as it deems necessary and appropriate and hereby acknowledges that It
accepts the Equipment for all purposes
(3) Lessee IS currently maintaining the insurance coverage required by Scctioll 17 oflhe Agreement
(4) No event or condition that constitutes, or with notice or lapse of time, or \loth, would constilute, an Event of Default (as defined in the Agreement) exists at the date
hereof
LESSEE
City of San Bernardino
Signature
Name/Title
Acceptance Dale
2011-56
INSURANCE COVERAGE REQUIREMENTS
LESSOR:
Pinnacle Public Finance, Inc.
LESSEE:
City of San Bernardino
Please Reference Control # 100319 on Certificate of Insurance
1. In accordance with Section] 7 of the Agreement, we have instructed the insurance agent named below:
(Please fill in name, address and telephone number).
Telephone: ()
Fax: ( )
Contact:
a. All Risk Physical Damage Insurance on the leased equipment evidenced by a Certificate of Insurance and Long Form Loss
Payable Clause naming Pinnacle Public Finance, Inc. and/or its assigns, as Loss Payee.
Coverage Required:
Full Replacement Value
b. Public Liability Insurance evidenced by a Certificate of lnsurance naming Pinnacle Public Finance, Inc. and/or its assigns as
Additional Insured.
Minimum Coverage Required: $5,000.000
OR
2. Pursuant to Section 17 of the Agreement, we are self-insured for all risk, physical damage, and public liability and will
provide proof of such self-insurance in letter form together with a copy of the statute authorizing this fonn of insurance.
Proof of insurance coverage will be provided prior to the time the Equipment is delivered to us.
PLEASE LIST NAME & ADDRESS AS FOLLOWS:
Pinnacle Public Finance, Inc.
8377 East Hartford Drive, Suite 115
Scottsdale, AZ 85255
LESSEE:
City of San Bernardino
Signature
NamclTitle:
Date:
2011-56
PAYMENT INSTRUCTIONS
Pursuant to the Master Equipment Lease Purchase Agreement dated March 11, 2011 (the "Agreement"), Schedule of Property No, I. dated March
11,2011, between Pinnacle Public Finance, Inc. (the "Lessor") and City of San Bernardino (the "Lessee"), Lessee hereby acknowledges the
obligations to make Rental Payments promptly when due. in accordance \vith Exhibit A-I to the Agreement.
LESSEE NAME:
TAX 10#:
INVOICE MAILING ADDRESS:
Mai I invoices to the attention of:
Phone (_)
Fax I_l__.
Approval of Invoices required by:
Phone (
Fax (__
Accounts Payable Contact:
Phone (
___Fax L_J_..
Processing time for Invoices:
Approval:
Checks:
Do you have a Purchase Order Number that you would like included on the invoice? No
Yes
PO#
Do your Purchase order numbers change annually? No~ Yes~ Processing time for ne\-v purchase orders:
LESSEE: City of San Bernardino
Signature:
Name/Title
Date:
2011-56
BANK QUALIFIED DESIGNATION
SCHEDULE NO. I DATED MARCH 11,2011 TO MASTER LEASE PURCHASE AGREEMENT
DATED MARCH 11,2011
Lessee hereby represents and certifies the following (please check one):
Bank Qualified
o Lessee has designated, and hereby designates, this Lease as a "qualified tax-exempt obligation" for the
purposes and within the meaning of Section 265(b)(3) of the Internal Revenue Code of 1986, as
amended (the "Code"). In making that designation, Lessee hereby certifies and represents that:
. As of the date hereof in the current calendar year, neither Lessee nor any other issuer on behalf of
Lessee has designated more than $10,000,000 (the statutory limitation through 12/3l!2011) of
obligations (including this Lease) as "qualified tax-exempt obligations";
. Lessee reasonably anticipates that the total amount of tax-exempt obligations (including this
Lease) to be issued by or on behalf of Lessee (or allocated to Lessee) during the current calendar
year will not exceed $10,000,000;
. The Lease will not be at any time a "private activity bond" as defined in Section 141 of the Code;
. The Lease is not subject to control by any entity and there are no entities subject to control by
Lessee; and
. Not more than $10,000,000 of obligations of any kind (including the Lease) issued by, on behalf
of or allocated to Lessee will be designated for purposes of Section 265(b)(3) of the Code during
the current calendar year.
Non-Bank Qualified
D Lessee has not designated this Lease as a "qualified tax-exempt obligation" for the purposes and within
the meaning of Section 265(b)(3) of the Code.
LESSEE:
City of San Bernardino
Signature:
x
Printed Name/Title:
x
Date:
x
Line 2:
Lines 9 and 10:
Line 38:
Siqnature and
Consent:
2011-56
Instructions for 8038-G:
Updated lor use with May, 2010 lorm
The below described lines need to be completed by the Lessee:
Enter the Lessee's EIN number
An issuer (Lessee) that does nat have an employer identification number (EIN) should apply
for one on Form SS-4, Application for Employer Identification Number. This form may be
obtained at Social Security Administration offices or by calling 1-800-TAX-FORM (1-BOO-
829-3676). You can also get this form on the IRS website at www.irs.Qov. You may receive
an EIN by telephone by following the instructions for Form 55-4.
Enter the name, title, and telephone number of the officer of the Issuer
whom the IRS may call for more information
If the issuer wishes to designate a person other than an officer of the issuer (including a
legal representative or paid preparer) whom the IRS may call for more information with
respect to this return, enter the name, title, and telephone number of such person.
Bank Qualified Designation
Check this box if this Lease is designated as a "small issuer exception" under section
265(b)(3)(B)(i)(III). (Lessee reasonably anticipates that the total amount of tax-exempt
obligations (including this Lease) to be issued by or on behalf of Lessee (or allocated to
Lessee) during the calendar year 2011 will not exceed $10,000,000.)
Please provide an authorized signature, date, and printed (or typed)
name and title of the individual signing on behalf of Lessee.
2011-56
PPF 100319
Foem 8038.G
Information Return for Tax-Exempt Governmental Obligations
~ Under Internal Revenue Code section 149(e)
II- See separate instructions.
Caution: If the issue price is under $100,000, use Form B038-GG.
If Amended Return, check here .... 0
2 Issuer's errpIoyer iderdificalion I'll.ITber (E1N)
OMS No. 1545-0720
(Rev_ May 2010)
Department 01 the Treasury
Intemal Revenue Service
1 Issuer's name
Cit of San Bernardino
3 Number and street (or P.O. box if mail is not delivered to street address)
300 N. "0" Street, 4th Floor, Finance
5 City, town, or post office, state, and ZIP code
San Bernardino, CA 92418
7 Name of issue
Room/suite
4 Report number (For IRS Use Only)
3
6 Date of issue
03/11/2011
8 CUSIP number
Sch of Prop No.1 dId 3/11/2011 to MELPA dtd 3/11/2011
9 Name and title of officer of the issuer or other person whom the IRS may call for more information
10 Telephone number of officer or other person
Ty e of Issue enter the issue price See instructions and attach schedule
11 Education
12 Health and hospital
13 Transportation.
14 Public safety
15 Environment (including sewage bonds).
16 Housing
17 Utilities
18 Other. Describe'" Public Works Vehicles
19 If obligations are TANs or RANs, check only box 19a
If obligations are BANs, check only box 19b
20 If obligations are in the form of a lease or installment sale, check box
11
12
13
14
15
16
17
18 11
~ 0
~ 0
~ 0
ations. Com lete for the entire issue for which this forrn is beln
ld) Weighted
average maturity
(b) Issue price
(e) Stated redemption
price at maturity
(el Yield
years
2.8900 %
$2,090,406.11 3.6335
underwriters' discount
o
$2,090,406
00
11
o
$2,090,406
00
11
22
23
24
25
26
27
28
29
30
Proceeds used for accrued interest.
Issue price of entire issue (enter amount from line 21, column (b))
Proceeds used for bond issuance costs (including underwriters' discount) 24
Proceeds used for credit enhancement 25
Proceeds allocated to reasonably required reserve or replacement fund. 26
Proceeds used to currently refund prior issues 27
Proceeds used to advance refund prior issues 28
Total (add lines 24 through 28)
Nonrefundln roceeds of the issue subtract line 29 from line 23 and enter amount here
Deseri tion of Refunded Bonds Com lete this art onl for refundin
Enter the remaining weighted average maturity of the bonds to be currently refunded.
Enter the remaining weighted average maturity of the bonds to be advance refunded.
Enter the last date on which the refunded bonds will be called (MM/DDIYYYY)
Enter the date(s) the refunded bonds were issued'" (MM/OONYYY)
o 00
o 00
o 00
o 00
o 00
29
30
bonds.
~
~
~
years
years
31
32
33
34
For Privacy Act and Paperwork Reduction Act Notice, see separate instructions. Cat No. 637738 Form 8038-G (Rev. 5-2010)
2011-56
Form 8038-G (Rev. 5~2010)
Miscellaneous
Page 2
38
39
40
Enter the amount of the state volume cap allocated to the issue under section 141 (b)(S) .
Enter the amount of gross proceeds invested or to be invested in a guaranteed investment contract
(GIG) (see instructions)
Enter the final maturity date of the GIC ..
Pooled financings: a Proceeds of this issue that are to be used to make loans to other
governmental units 37a
b If this issue is a loan made from the proceeds of another tax-exempt issue, check box'" 0 and enter the name of the
issuer.... and the date of the issue ...
If the issuer has designated the issue under section 265(b)(3)(B)(i)(III) (small issuer exception). check box
If the issuer has elected to pay a penalty in lieu of arbitrage rebate, check box
If the issuer has identified a hedge, check box
35
36a
b
37
~ D
~D
~D
Signature
and
Consent
Under penal lies of perjury, I declare that I have examined this return and accompanying schedules and statements, and \0 the best of my knowledge
and belief, they are true, correct. and complete. I further declare that I consent to the IRS's disclosure of the issuer's return information. as necessary
to process this return, to the person that I have authorized above.
Paid
Preparer's
Use Only
~ Signature of issuer's authorized representative
Preparer'S ~
signature ,;
Firm's name r
yours if self-employed},
address, and ZIP code
Date
Preparer's SSN or PTIN
P01269392
3119149
( 480 ) 585-3789
Form 8038-G (Rev. 5-2010)
Phone no.
2011-56
CERTIFICATE OF SIGNATURE AUTHORITY OF LESSEE
March 11,2011
Pinnacle Public Finance, Inc.
8377 East Hartford Drive, Suite 115
Scottsdale, AZ 85255
RE: Schedule of Property No. I dated March II, 20 II ("Lease") (0 the Master
Equipment Lease Purchase Agreement dated March 11, 2011 ("Agreement"), by
and between City of San Bernardino ("Lessee") and Pinnacle Public Finance, Inc.
("Lessor").
Dear Pinnacle Public Finance, Inc.,
I, the undersigned, do hereby certify
(i) that
(please print the name and title of the penoon who signed the lease documents 011 the line above)
the officer of Lessee who executed the foregoing Lease and Agreement on behalf of Lessee and
whose genuine signature appears thereon, is the duly qualified and acting officer of Lessee as stated
beneath his or her signature and has been authorized to execute the foregoing Lease and Agreement
on behalf of Lessee, and
(ii)
that the budget year of Lessee is from
to
Sincerely,
Signature:
NameITitle:
Dated:
The Certificate of Signature Authority of Lessee should be executed by an authorized individual confirmjng the
executioner of the remaining documents is authorized. This document cannot he signed by the person signing the
lease documents.
2011-56
ESCROW AGREEMENT
This Escrow Agreement, dated as of March 11, 20 I] by and among Pinnacle Public Finance, Inc., a
Delaware corporation ("Lessor"), City of San Bernardino ("Lessee"), and The Bank of New York Mellon Trust
Company, N.A., a national banking association with a corporate trust office in St Louis, MO, as Escrow Agent
(the "Escrow Agent"):
In consideration of the mutual covenants and agreements herein set forth, the parties hereto do hereby
covenant and agree as follows:
1. This Escrow Agreement relates to and is hereby made a part of Schedule of Property No. 1
dated as of the date hereof, between Lessor and Lessee, to the Master Equipment Lease Purchase Agreement
dated March 11, 201] between Lessor and Lessee ("Lease").
2. Except as otherwise defined herein, all terms defined in the Lease shall have the same meaning
for the purposes of this Escrow Agreement as in the Lease.
3. Lessor, Lessee and the Escrow Agent agree that the Escrow Agent will act as sole Escrow
Agent under the Lease and this Escrow Agreement, in accordance with the terms and conditions set forth in this
Escrow Agreement. The Escrow Agent shall not be deemed to be a party to the Lease and this Escrow
Agreement shall be deemed to constitute the entire agreement among Lessor, Lessee, and Escrow Agent.
4. There is hereby established in the custody of Escrow Agent a special trust fund designated the
Acquisition Fund (the "Acquisition Fund") to be held and administered by the Escrow Agent in trust for the
benefit of Lessor and Lessee in accordance with the Escrow Agreement.
5. (a) Lessor shall deposit $2,090,406.11 in the Acquisition Fund. Moneys held by the Escrow Agent
hereunder shall be invested and reinvested by the Escrow Agent upon order of a representative of Lessee in
Qualified Investments (as hereinafter defined) maturing or subject to redemption at the option ofthe holder
thereof prior to the date on which it is expected that such funds will be needed. Such investments shall be held
by the Escrow Agent in the Acquisition Fund, and any interest earned on such investments shall be paid to
Lessee.
(b) The parties recognize and agree that the Escrow Agent will not provide supervision,
recommendations or advice relative to either the investment of the Acquisition Fund or the purchase, sale,
retention or other disposition of any Qualified Investment. The Lessee warrants that the investments directed to
be purchased by the Escrow Agent pursuant to this paragraph 5 are Qualified Investments as defined in
paragraph 6 of this Escrow Agreement. The Lessee will give at least ten (10) business days advance notice for
the purchase of United States Treasury Obligations-State and Local Government Series time/demand deposit
securities.
(c) Any loss or expense incurred from an investment will be borne by the Acquisition Fund. If the
Escrow Agent does not receive directions to invest the monies held in the Acquisition Fund, its only obligation
with respect to the Acquisition Fund shall be to hold it or deposit uninvested without liability for interest or
other compensation to either party.
(d) The Escrow Agent is hereby authorized to execute purchase and sales of Qualified Investments
through the facilities of its own trading or capital markets operations. The Escrow Agent shall send statements
to each of the parties periodically reflecting activity for the Escrow Account for the preceding month.
6. "Qualified Investments" shall be defined for purposes of this Escrow Agreement as follows:
2011-56
(a) For Leases not qualified for the arbitrage rebate exception for small governmental units under
Section 148(f)(4)(C) of the Code, "Qualified Investments" means, to the extent the same are at the time legal
for investment of the funds being invested: (i) United States Treasury Bills or United States Treasury Notes
traded on an open market or issued directly by the United States at a yield not exceeding % per
annum, (ii) United States Treasury Obligations - State and Local Governmental Series time deposit
securities with a yield not exceeding % per annum, (iii) obligations the interest of which is not
includable in the gross income of the owner thereoffor federal income tax purposes under Section 103 of the
Code and which are rated AA or better by Standard & Poors Corporation or Aa or better by Moody's
Investors Service, Inc., (iv) shares of qualified regulated investment companies which distribute exempt-
interest dividends within the meaning of Section 852 of the Code and which are rated AA or better by
Standard & Poors Corporation or Aa or better by Moody's Investors Service, Inc. (tax-exempt mutual funds),
(v) United States Treasury Obligations - State and Local Government Series demand deposit securities, or
(vi) Money Market Fund or Money Market Deposit Account that is fully FDIC-insured as agreed to by the
Lessee.
(b) For Leases qualified for the arbitrage rebate exception for small governmental units under
Section I 48(f)(4)(C) of the Code, "Qualified Investments" means to the extent the same are at the time legal
for investment ofthe funds being invested: (i) direct general obligations ofthe United States of America;
(ii) obligations, the timely payment of the principal and interest on which is fully and unconditionally
guaranteed by the United States of America; (iii) general obligations of the agencies and instrumentalities of
the United States of America acceptable to Lessor; (iv) certificates of deposits, time deposits, bank deposits
or demand deposits with any bank or savings institution including the Escrow Agent or any affiliate thereof,
provided that such certificates of deposit, time deposits, bank deposits or demand deposits, if not insured by
the Federal Deposit Insurance Corporation or the Federal Savings and Loan Insurance Corporation, are fully
secured by obligations described in (i), (ii) or (iii) above, or (v) repurchase agreements with any state or
national bank or trust company, including the Escrow Agent or any affiliate thereof, that are secured by
obligations of the type described in (i), (ii) or (iii) above, provided that such collateral is free and clear of
claims of third paJ1ies and that the Escrow Agent or a third paJ1y acting solely as agent for the Escrow Agent
has possession of such collateral and a perfected first security interest in such collateral.
7. Moneys in the Acquisition Fund shall be used to pay for the cost of the acquisition of the
Equipment. Payment shall be made from the Acquisition Fund for the cost of acquisition of pm or all
Equipment upon presentation to the Escrow Agent of one or more properly executed Payment Request and
Acceptance Certificates, a form of which is attached hereto as Exhibit A, executed by Lessee and approved
by Lessor, together with an invoice for the cost of the acquisition of the Equipment for which payment is
requested and a written approval by Lessor of the Vendor to be paid.
8. Concerning the Escrow Agent.
Notwithstanding any provision contained herein to the contrary, the Escrow Agent, including its
officers, directors, employees and agents, shall:
(a) not be liable for any action taken or omitted under this Escrow Agreement so long as it shall
have acted in good faith and without negligence; and shall have no responsibility to inquire into or determine
the genuineness, authenticity, or sufficiency of any securities, checks, or other documents or instruments
submitted to it in connection with its duties hereunder:
(b) be entitled to deem the signatories of any documents or instruments submitted to it hereunder as
being those purported to be authorized to sign such documents or instruments on behalf of the parties hereto,
and shall be entitled to rely upon the genuineness of the signatures of such signatories without inquiry and
without requiring substantiating evidence of any kind; and have no liability for acting upon any written
and/or facsimile and/or email instructions presented by Lessee/Lessor/Pinnacle Public Finance, Inc. in
connection with this Escrow Agreement which the Escrow Agent in good faith believes to be genuine.
2011-56
(c) be entitled to refrain from taking any action contemplated by this Escrow Agreement in the event
that it becomes aware of any disagreement between the parties hereto as to any facts or as to the happening of
any contemplated event precedent to such action;
(d) have no responsibility or liability for any diminution in value of any assets held hereunder which
may result from any investments or reinvestment made in accordance with any provision which may be
contained herein;
(e) be entitled to compensation for its services hereunder as per Exhibit B, which is attached hereto and
made a part hereof, and for reimbursement of its out-of~pocket expenses including, but not by way oflimitation,
the fees and costs of attorneys or agents which it may find necessary to engage in performance of its duties
hereunder, all to be paid by Lessee, and the Escrow Agent shall have, and is hereby granted, a prior lien upon
any propel1y, cash, or assets of the Acquisition Fund, with respect to its unpaid fees and nonreimbursed
expenses, superior to the interests of any other persons or entities, and shall be entitled and is hereby granted
the right to set off and deduct any unpaid fees and/or nonreimbursed expenses from amounts on deposit
pursuant to this Escrow Agreement.
(1) be under no obligation to invest the deposited funds or the income generated thereby until it has
received a Form W-9 or W-8, as applicable, from each of the parties hereto, regardless of whether any party is
exempt from reporting or withholding requirements under the Internal Revenue Code of 1986, as amended;
(g) have no liability for acting upon any written instruction presented by Lessor in connection with this
Escrow Agreement which the Escrow Agent in good faith believes to be genuine. Furthermore, the Escrow
Agent shall not be liable for nay act or omission in connection with this Agreement except for its own
negligence, willful misconduct or bad faith. The Escrow Agent shall not be liable for any loss or diminution in
value of the Acquisition Fund as a result of the investments made by the Escrow Agent;
(h) in the event any dispute shall arise between the parties with respect to the disposition or
disbursement of any of the assets held hereunder, be permitted to interplead all of the assets held hereunder into
a court of competent jurisdiction, and thereafter be fully relieved from any and all liability or obligation with
respect to such interpleaded assets. The parties further agree to pursue any redress or recourse in connection
with such a dispute, without making the Escrow Agent a party to same;
(i) only have those duties as are specifically provided herein, which shall be deemed purely ministerial
in nature, and shall under no circumstance be deemed a fiduciary for any of the parties to this Escrow
Agreement. The Escrow Agent shall neither be responsible for, nor chargeable with, knowledge of the terms
and conditions of any other agreement, instrument, or document between the other parties hereto, in connection
herewith, including, without limitation, the Lease referred to in thc preamble or the body of this Escrow
Agreement. This Agreement sets forth all matters pertinent to the escrow contemplated hereunder, and no
additional obligations ofthe Escrow Agent shall be inferred from the terms of this Escrow Agreement or any
other Agreement. IN NO EVENT SHALL THE ESCROW AGENT BE LIABLE, DIRECTLY OR
INDIRECTLY, FOR ANY (i) DAMAGES OR EXPENSES ARISING OUT OF THE SERVICES PROVIDED
HEREUNDER, OTHER THAN DAMAGES WHICH RESULT FROM THE ESCROW AGENT'S FAILURE
TO ACT IN ACCORDANCE WITH THE REASONABLE COMMERCIAL STANDARDS OF THE
BANKING BUSINESS, OR (ii) SPECIAL OR CONSEQUENTIAL DAMAGES, EVEN IF THE ESCROW
AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES;
(j) have the right, but not the obligation, to consult with nationally-recognized counsel of its choice
and shall not be liable for action taken or omitted to be taken by the Escrow Agent either in accordance with the
advise of such counselor in accordance with any opinion of counsel to Lessor addressed and delivered to the
Escrov/ Agent;
2011-56
(k) have the right to perform any of its duties hereunder through agents, attorneys, custodians or
nominees; and
(I) shall not be required by any provision of this Escrow Agreement to expend or risk its own funds in
the performance of its duties if it shall have reasonable grounds for believing that repayment of such funds is
not reasonably assured to it
Any banking association or corporation into which the Escrow Agent (or substantially all of its
corporate trust business) may be merged, converted or with which the Escrow Agent may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the Escrow Agent shall be a party,
succeed to all the Escrow Agent's rights, obligations and immunities hereunder without the execution or filing of
any paper or any further act on the part of any of the parties hereto, anything herein to the contrary
notwithstand ing,
9. Tax Matters.
a) Reoorting of Income: The Escrow Agent shall report to the Internal Revenue Service, as of each
calendar year-end, all income earned from the investment of any sum held in the Escrow Fund against Lessee,
whether or not said income has been distributed during such year, as and to the extend required by law.
b) Preparation and Filing of Tax Returns: Any tax returns required to be prepared and filed will be
prepared and filed by Lessee with the Internal Revenue Service in all years income is earned, whether or not
income is received or distributed in any particular tax year, and Escrow Agent shall have no responsibility
for the preparation and/or filing or any tax return with respect to any income earned by the Acquisition
Fund.
c) Pavment of Taxes: Any taxes payable on income earned from the investment of any sums held in
the Acquisition Fund shall be paid by Lessee, whether or not the income was distributed by the Escrow Agent
during any particular year.
10. The Acquisition Fund shall terminate upon the occurrence of the earlier of (a) the presentation
of a proper Payment Request and Acceptance Certificate with the portion thereof designated "Final Acceptance
Certificate" properly executed by Lessee, or (b) the presentation of written notification by the Lessor, or if the
Lessor shall have assigned its interest under the Agreement, then the assignees or subassignees of all of
Lessor's interest under the Lease or an Agent on their behalf, that an Event of Default has occurred or that
Lessee has terminated the Lease pursuant to Section 7 ofthe Lease. Upon termination as described in clause (a)
of this paragraph, any amount remaining in the Acquisition Fund shall be used to prepay, in the sole discretion
ofthe Lessor, either (i) principal payments thereafter due under the lease in the inverse order or their maturities,
or (ii) proportionately to each principal payment thereafter due under the Lease. In the event that Lessor elects
to apply such amounts in accordance with clause (i) of the preceding sentence, Lessee shall continue to make
Rental Payments as scheduled under the Lease. In the event that Lessor elects to apply such amounts in
accordance with clause (ii) of this Section 10, Lessor shall provide Lessee with a revised payment schedule
which shall reflect the revised principal balance and reduced Rental Payments due under the Lease. Upon
termination as described in clause (b) of this paragraph, any amount remaining in the Acquisition Fund shall
immediately be paid to Lessor or. pro rata, to any assignees or subassignees of Lessor.
11. The Escrow Agent may at any time resign by giving at least 39 days written notice to Lessee
and Lessor, but such resignation shall not take effect until the appointment of a successor Escrow Agent The
substitution of another bank or trust company to act as Escrow Agent under this Escrow Agreement may occur
by written agreement of Lessor and Lessee. In addition, the Escrow Agent may be removed at any time, with or
without cause, by an instrument in writing executed by the Lessor and Lessee. In the event of any resignation
or removal oftbe Escrow,Agent, a successor Escrow Agent sball be appointed by an instrument in writing
executed by Lessor and Lessee. Sucb successor Escrow Agent sball indicate its acceptance of such
2011-56
appointment by an instrument in writing delivered to Lessor, Lessee, and the predecessor Escrow Agent.
Thereupon such successor Escrow Agent shall, without any further act or deed, be fully vested with all the trust,
powers, rights, duties and obligations of the Escrow Agent under this Escrow Agreement, and the predecessor
Escrow Agent shall deliver all moneys and securities held by it under this Escrow Agreement to such successor
Escrow Agent.
12. The Escrow Agent incurs no liability to make any disbursements pursuant to the Escrow
Agreement except from funds held in the Acquisition Fund. The Escrow Agent makes no representations or
warranties as to the title to any Equipment or as to the performance of any obligations of Lessor or Lessee. In
the event the Escrow Agent becomes involved in litigation by reason ofthe administration ofthe Acquisition
Fund, it is hereby authorized to deposit with the appropriate Clerk of the Court, in which the litigation is
pending, any and all funds, securities or other property held by it pursuant hereto, less its reasonable fees,
expenses and advances, and thereupon shall stand fully relieved and discharged of any further duties regarding
the Acquisition Fund. Also, in the event the Escrow Agent is threatened with litigation by reason of this
Escrow Agreement regarding the Acquisition Fund, it is hereby authorized to file an interpleader action in any
court of competent jurisdiction and to deposit with the Clerk of such Court, any funds, securities, or other
property held by it, less its reasonable fees, expenses and advances, and thereupon shall stand fully relieved and
discharged of any further duties regarding the Acquisition Fund.
13. Notices.
Any notice, consent or request to be given in connection with any ofthe terms or provisions of this
Escrow Agreement shall be in writing and be given in person, by facsimile transmission or courier delivery
service or by mail, and shall become effective (a) on delivery if given in person, (b) on the date of delivery if
sent by facsimile with receipt confirmed by telephone or by courier delivery service, or (c) four business days
after being deposited in the mails, with proper postage prepaid for first-class registered or certified mail.
Notices shall be addressed as follows:
(i) ifto Lessor:
Pinnacle Public Finance, Inc.
8377 East Hartford Drive, Suite 115
Scottsdale, AZ 85255
Attention: Investment Associate
Fax Number: (480) 419-3603
(ii) if to Lessee:
City of San Bernardino
300 N. "0" Street, 4'" Floor, Finance
San Bernardino, CA 92418
Attention: Michael Gomez
Phone Number: (909) 384-5146
Tax ill:
(iii) if to the Escrow Agent:
The Bank of New York Mellon Trust Company, N.A.,
911 Washington Ave.
St. Louis, MO 63101
14. In the event any provision of this Escrow Agreement shall be held invalid or unenforceable by
any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other
provision hereof.
15. This Escrow Agreement may not be amended except by a written instrument executed by
Lessor, Lessee and the Escrow Agent.
2011-56
16. Governing Law, Counterparts.
This Agreement shall be construed in accordance with the laws of the State of California. It may be
executed in several counterparts, each one of which shall constitute an original and all collectively shall
constitute but one instrument.
IN WITNESS WHEREOF, Lessor, Lessee and the Escrow Agent have caused this Escrow Agreement to be
executed by their duly authorized representatives.
Pinnacle Public Finance. Inc.
Lessor
City of San Bernardino
Lessee
.
BV~ O'r716
' Cathleen D. JI. nez
Title: SVP, Operations
By:
Title:
The Bank of New York Mellon Trust Companv. N.A.
Escrow Agent
By:
Title:
2011-56
Exhibit A
Escrow A{!reement
Pavrnent Reauest and AcceDtance Certificate
To:
The Bank of New York Mellon Trust Company, N.A.
Attn: James Agnew
911 Washington Ave.
St. Louis, MO
Phone Numher: (314)613.8203 Fax Numhcr: (314)613.8286
and
Pinnacle Public Finance, Ioe
8377 East Hartford Drive, Suite 115
Scottsdale. AZ 85255
RE:
Schedule of Property No.1 dated March 11,2011 to the Master Equipment Lease Purchase
Agreement dated March 1\, 2011
The ~scro\v Agent is hereby requested to pay [rom the Acquisition Fund to the person or corporation designated below as Payee, the sum set
forth below in payment ofa portion or all of the cost of the acquisition of the equipment described below. The amount shown below is due and
payable under the invoice of the Payee attached hereto with respect to the cost of the acquisition of the equipment and has not formed the basis of
any prior request for payment. The equipment described below is part or all of the "Equipment" listed in the Schedule of Property No.1 dated
March 11. 2011 to the Master Equipment Lease Purchase Agreement dated March II. 2011 (the "Agreement").
Ouantitv
Serial Number/Descriotion:
Amount
Payee:
Payee's Federal ID Number:
Lessee hereby certifies and represents to and agrees with Lessor as follow s
(I) The equipment described above has been delivered, installed and accepted on the date hereof
(2) Lessee has conducted such inspection and/or testing of said equipment as it deems necessary and appropriate and hereby acknowledges that it accepts said equipment for all purposes
(3) Lessee is cllrn:ntly maintaining the insillance coverage required by Section 17 of the Agreement.
(4) No event or condition that constitutes, or with notice or lapse of time or both would constitute, an Event of Default (as sllch term is defined in the Agreement) exists at the date hereof.
Dated
City of San Bemardino
LESSEE
By
Title
Approved
Pinnacle Public Finance. Inc.
LESSOR
By
Title
FINAL ACCEPTANCE CERTIFICATE
(TI-ilS CERTIFICATE IS TO BE EXECUTED ONL Y WHEN ALL EQUIPMENT HAS BEEN ACCEPTED)
Tbe undersigned hereby certifies that the equipment described above, together with the equipment described in and accepted by Pavrnent Request and Acceptance Certificates
previously tiled by Lessee with the Lessor pursuant to the Agreement. constitutes all of the Equipment subject to the Ab'Teement
Dated
LESSEE
Bv
Title
100319
2011-56
Exhibit B
Escrow A2:reement
(Escrow A~ent Fee Schedule)
The Escrow Agent shall be entitled to fees for its ordinary services as follows:
A one-time ree or $750.00 npon receipt of the Final Acceptance Certificate signed by Lessor/Lessee. This ree may
be paid from interest earnings.
In addition, the Escrow Agent shall be entitled to compensation and reimbursement of expenses for any extraordinary
service provided pursuant to this Escrow Agreement. The foregoing right shall include the costs of any additional services
performed by Escrow Agent which is not customarily considered to be a usual service provided in the administration of
this escrow.
CUSTOMER NOTICE REQUIRED BY THE USA PATRIOT ACT
To help the US government fight the funding of terrorism and money laundering activities, US Federal law
requires all financial institutions to obtain, verify, and record information that identifies each person (whether
an individual or organization) for which a relationship is established.
What this means to you: When you establish a relationship with The Bank of New York Mellon Trust
Company, N.A., we will ask you to provide certain information (and documents) that will help us to identify
you. We will ask for your organization's name, physical address, tax identification or other government
registration number and other information that will help us to identify you. We may also ask for a Certificate
of Incorporation or similar document or other pertinent identifying documentation for your type of
organization.