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CITY OF SAN BERNQblNO - REQUEST POt COUNCIL ACTION.
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Prom: Dean R.Meech, Purchasing Agent
Subject: Master Lease Contract for Associates
Ccmrercial Corporation
and
Financing of six autcmated side loading
Refuse Trucks ( F-94-06 )
Dept: Purchasing
Date: July 11, 1994
Synopsis of Previous Council ection:
Resolutions 94-38 and 94-39 awarding chassis manufacturer and refuse body
manufacturer for the purC".hase and construction of six autcmated refuse trucks.
Recommended motion:
ildopt resolutions.
Dean R. Meech
~~~~
Contact person: Dean R. Meech, Purchasing Agent
Phone:
384-5085
Supporting date atteched:
Yes
Ward:
N/A
FUNDING REQUIREMENTS:
Amount: $767,360.60
Source: (Acct. No.l
127-412-56102
(Acct. DescriDtionl Refuse Fund
FinanC8:_~~Afd/& J~~
/'
Council Notes: ~ -ItI,.l m~~7 vAi-'- ~.,6.( JM~ ~ (11,1 f 914 k Y4/~
. , 0 I. /
/AJ ~51 Y7.1..I.1... _1JJ Y4.. 'lJt'r~ ~YP</-?.r 4.u~f ~5~.~J./L .IAV
~OhJ built).M1 1Ld r rVL) .,:6-_.
75-0262
Agenda Item No5.3 -t 'f
CITY OF SAN BERNC)DINO - REQUEST FO' COUNCIL ACTION
~
STAFF REPORT
The proposed actions are for two resolutions.
The first resolution is for adding another Lease Purchase Master
Contract in place with the city of San Bernardino. This adds to our
library of financing partners already approved and in place,
reducing processing time in lease purchase transactions.
The vendor for Lease Purchase Master Contract Council approval is:
Associates Commercial Corporation
300 E. Carpenter Freeway
Irving, TX 75062
214-541-3000
Mailing: P.O. Box 650363
Dallas, TX 75265-0363
The second resolution is for Council to approve Schedule A to the
newly approved Master Lease of Associates Commercial Corporation.
The Council awarded resolutions 94-38 and 94-39.previously to the
chassis manufacturer and the refuse body manufacturer for the
purchase and construction of six automated refuse trucks. Purchase
order 005498 was issued to the manufacturers per Council direction.
There were dispositions to be resolved by the Finance Department in
the financing of these trucks. The best advantage financing
arrangement has been identified as Associated Commercial
Corporation and recommended to Council for approval to finance the
purchase.
The lease purchase amount to finance is $670,905.37 at 5.04%
interest. Payments are semi-annually in arrears for a total of ten
payments of $76,736.06 over five years. The total payout will be
$767,360.60. The cost to finance is $96,455.23. The payment
schedule commences approximately six months after take down. There
is a $300 underwriting fee with this vendor.
Deaf ~J#-"
Purchasing Agent
'~ ~~/~
Pat Malloy, ( ~
Director of Publ~ Services
75-0264
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RESOLUTION NO.
RESOLUTION OF THE CITY OF SAN BERNARDINO ACCEPTING LEASE-
PURCHASE MASTER AGREEMENT FOR ASSOCIATES COMMERCIAL CORPORATION
FOR THE FURNISHING OF LEASE PURCHASE FINANCING.
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AS FOLLOWS:
SECTION 1. That Equipment Lease-Purchase Master Agreement
with Associates Commercial Corporation (the "Agreement"), a copy
of which is attached hereto and incorporated herein as Exhibit
"A", is approved by the City of San Bernardino for the furnishing
of Lease-Purchase Financing; pursuant to this determination, said
Master Lease-Purchase Agreememt award shall only be effective upon
the execution of an Agreement by the Mayor of the city of San
Bernardino.
SECTION 2. The city shall not be obligated under the
Agreement unless and until the Agreement is fully executed and no
oral agreement relating thereto shall be implied or authorized.
The authorization to execute the above referenced Agreement is
rescinded if the parties fail to execute it within sixty (60) days
of the passage of this resolution.
SECTION 3. No transactions shall be initiated under the
Master Lease contained in the Agreement without the approval of
the Mayor and Common Council.
SECTION 4. The City shall not be obligated under until
a lease-purchase schedule transaction for material, equipment,
supplies or contracted services is executed with the vendor under
this Agreement.
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07-11-94
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RESOLUTION OF THE CITY OF SAN BERNARDINO ACCEPTING LEASE PURCHASE
MASTER CONTRACT FOR ASSOCIATES COMMERCIAL CORPORATION FOR THE
FURNISHING OF LEASE PURCHASE FINANCING.
SECTION 5. The Purchasing Agent, Director of Finance and
the City Attorney are hereby authorized to execute such documents
as necessary for the administration of transactions under the
Agreement.
I HEREBY CERTIFY that the foregoing resolution was duly
adopted by the Mayor and Common Council of the city of San
Bernardino at a
day of
, 199
, by
the following vote, to wit:
Council Members:
AYES
NEGRETE
CURLIN
HERNANDEZ
OBERHELMAN
DEVLIN
POPE-LUDLAM
MILLER
meeting thereof, held on the
NAYS
ABSTAIN
ABSENT
city Clerk
The foregoing resolution is hereby approved this
day of , 199____
Approved as to form
and legal content:
James F. Penman,
city Attorney
By:
07-11-94
Tom Minor, Mayor
City of San Bernardino
-2-
.
C I T yQ F
SAN
B ERN A R DON 0
INTEROFFICE MEMORANDUM
TO:
Dean Meech, Purchasing Agent
FROM:
Dennis A. Barlow, Sr. Asst. City Attorney
December 17, 1993
DATE:
RE:
Master Lease for Associates Commercial Corp.
As requested I have reviewed the above lease/purchase Agreement and
find it legally acceptable.
..~~~
~ENNIS A. OW
DAB/js [ACC.II...)
~ 0
EQUIPMENT LEASE.PURCHASE AGREEMENT
Leasee: (Name and Address)
'City of San Bernardino
250 W. Cluster Street
San Bernardino. CA 92401
Lessor agrees to lease to Lesaee and Lessee agrees to lease from
Lessor the Equipment described in any Schedule A now or hereafter
attached hereto ("Equipment" in accordance with the following terms
and conditions of this Equipment Lease-Purchase Agreement
(IItease").
1. TERM. This Lease will become effectlve upon the exacution hereof
by Lessor. The term of this Lease will commence on the dete the
Equipment is accepted pursuant to Section 3 hereunder and, unless
earlier terminated as expressly provided for in this Lease, will continue
until the expiration date (the "Expiration Date") set forth in Schedule
A attached hereto (the "Lease Term").
2. RENT. Lessee agrees to pay to Lessor Dr Its assignee the Lease
Payments, Including the i_ portion, equal to the amounts speclfied
in Schedule A. The Lease Payments will be payable without notice or
demand at the office of Lessor (Dr such other place as Lessor Dr its
assignee may from time to time designate in writing), and will commence
on the first Lease Payment Date as set forth In Schedule A and
t~ereafter on the subsequent dates set forth in Schedule A. Any
payments received later than ten (10) days from the due date will bear
interest at the highest lawful rate from the due date. Except as
specifically provided In Section 6 hereof, the obligation of Lessee to
make the Lease Payments hereunder and perform all of Its other
obligations hereunder will be absOlute and unconditlonal in all events
and will not be subject to any setoff, defense, counterclaim, Dr
recoupment for any reason whatsoever including, without Iimltstion,
any failure of the Equipment to be delivered Dr Installed, any defects,
malfunctions, breakdowna Dr Inftrmlties In the Equipment Dr any
accident, condemnatIon or unforeseen circumstances. Lesaee
reasonably believee that funds can be obtained sullIcIent to make all
Lease Payments during the Lease Term and hereby covenants that
it will do all things lawfully within Its power to obtain, maintain and
properly request and pu.- funds from which the Lease Payments
mey be made, including making provisions for such payments to the
extent necessary In 88Ch budget submitted for the purpose of obtaining
funding, using Its bone fide best efforts to have such portion of the
budget epproved and exhausting all evellable administrative reviews
and appeals in the event such portion of the budget is not approved.
It is Lessee's intent to mue Lease Payments for the full Lease Term
If funds are legally lIYllitsbIe _efor and in that regard Lesaee
represents that the use of the Equipment is _nIlal to its proper,
efficient and economic operation, Lessor and L_ underetand and
intend thet the obligBtlon 01 Leasee to pay Lease Payments hereunder
shall constitute a current exp&f1M of Lesaee and shall not in any way
be construed to be a debt of Leasee in contraVentIon of any applicable
constitutional or statutory Ilmltstlon or requirement concerning the
creation of indebtedness by Leasee, nor ahaII anything contained herein
conslitute a pledge of the general tax revenues, funds Dr monies of
Lesaee.
3. DELIVERY AND ACCEPTANCE. Leasee, or If Leasee so requests,
Lessor, will cause the EquIpment to be delivered to Lesaee at the
location specified in Schedule A ("Equipment Locetlon"). Lesaee will
pay all transportetlon and ~ CDStlI, if any, Incurred In connection
with the delivery and Installation of the Equipment, Lesaee will accept
the Equipment as 8lIDIl as R has been delivenld and Inspected, Leasee
will evidence Its acceptance of the Equipment by executing and
delivering to Lessor a Delivery and Acceptance CertIficate (In the form
provIded by Lessor) upon delivery of the Equipment,
4. DISCLAIMER OF WARRANTIES. Lesaee acknowledges and
agrees that the Equipment is of a size, design and capacity selected
by Lesaee, that Lessor is nelther a manufacturer nor a vendor of such
equipment, that LESSOR LEASES AND LESSEE TAKES THE
EQUIPMENT AND EACH PART THEREOF "As-lS" AND THAT
LESSOR HAS NOT MADE, AND DOES NOT HEREBY MAKE, ANY
625689 Rev. 8-90
o
15431
Lease NO.
Lessor: (Nama and Address)
Associates Commercial Corporation
300 E. John CArnenter Freewav
IrvinR. TX 75062-2726
REPRESENTATION, WARRANTY, OR COVENANT, EXPRESS OR
IMPLIED, WITH RESPECT TO THE MERCHANTABILITY,
CONDITION, QUALITY, DURABILITY, DESIGN, OPERATION,
FITNESS FOR USE, OR SUITABILITY OF THE EQUIPMENT IN ANY
RESPECT WHATSOEVER OR IN CONNECTION WITH OR FOR THE
PURPOSES AND USES OF LESSEE, OR AS TO THE ABSENCE OF
LATENT QR OTHER DEFECTS, WHETHER OR NOT
DISCOVERABLE, OR AS TO THE ABSENCE OF ANY
INFRINGEMENT OF ANY PATENT, TRADEMARK OR COPYRIGHT,
OR AS TO ANY OBUGATION BASED ON STRICT LlABIUTY IN TORT
OR ANY OTHER REPRESENTATION, WARRANTY, OR COVENANT
OF ANY KIND OR CHARACTER, EXPRESS OR IMPUED, WITH
RESPECT THERETO, IT BEING AGREED THAT ALL RISKS
INCIDENT THERETO ARE TO BE BORNE BY LESSEE AND LESSOR
SHALL NOT BE OBUGATED OR LIABLE FOR ACTUAL, INCIDENTAL,
CONSEQUENTIAL, OR OTHER DAMAGES OF OR TO LESSEE OR
ANY OTHER PERSON OR ENTITY ARISING OUT OF OR IN
CONNECTION WITH THE USE OR PERFORMANCE OF THE
EQUIPMENT AND THE MAINTENANCE THEREOF. Lessor hereby
assigns to Leasee during the Lease Term, so long as no Event of Default
has occurred hereunder and is continuing, all manufacturer's
warranties, if any, expreseed Dr implied with respect to the Equipment,
and Lessor authorizes Lessee to obtain the customary services
furnished In connection with such warranties at Lessee's expense.
Lessee's sole remedy for the breach of any such manufacturer's
warranty shall be against the manufacturer of the Equipment, and not
against Lessor. Lesaee expressly acknowledges that Lessor makes,
and has made, no replesentatlons or warranties whatsoever as to the
existence Dr the avaiIabllRy of such warranties of the manufacturer of
the Equipment.
5. RETURN OF EQUIPMENT. Unless Leasee shall have exercised
Rs pun:haee opIion as provided In SectIon 20 hereof, upon the expiration
or earlier termination 01 this ~ pursuant to the terms henlof, Lesaee
shall, at Its sole exp&f1M but at Lessor's option, return the Equipment
to Lessor to any location In the continental United States designated
by Leseor.
6, NON-APPROPRIATION OF FUNDS; NON.SUBSTITU-
TlON. NotwithslandIng anything contained In this Lease to the contrary,
In the event no funds or Insufficient funds are appropriated and
budgated Dr are oth_ise unavallllble by any means whatsoever in
any flscel period for Lease Payments due under this Lease, Lessee
will Immediately notify Lessor or Its assignee in writing of such
occurrence and this Lease shall terminate on the last day of the fiscal
period for which appropriatlcns have been received or made without
penalty or exp&f1M to Lesaee, except as to (ij the portions of Laase
Payments herein agreed upon for which funds shall have been
appropriated and budgatad or are otherwise available and ~I) Lessee's
other obligations and HabiIRlee under this Lease reIatlng to, or accruing
Dr arising prior to, such terminetlon. In the event of such termination,
Lesaee agrees to peaceably surrender posaeesion of the Equipment
to Lessor or Its aasIgnee on the date of such termination In the manner
set forth In Section 5 hereof and Leasor win have a111ege1 and equitable
rights and remedies to tUe po.....ion of the Equipment.
Notwithstanding the foregoing, Lesaee agrees (ij that R will not cancel
this Lease and this ..... shall not terminate uncler the provisIcns of
this SectIon II any funds are ...........1ated to it, or by it, for the acquisRlcn,
ratentIon or operation of the Equipment or ~ equipment Dr services
performing functions similar to the functionS of the Equipment for the
fiscal period In which such termination ~Id have Otherwiee occurred
or for the next sucoeedlng fiscal period, and (Iij that R will not during
the Leese Term give priority in the application of funds to any other
function8lly similar equipment or to services perfonning funclIDnS similar
to the functions of the Equipment. This section will not be construed
so as to permR Leasee to terminate this Leese in order to purchase,
lease, rent Dr otherwise acquire the use of any other equipment Dr
. services pertormlng functions similar 10 the fugns 01 the Equipment.
and, if this Leass terminates pursuant 10 this SecUon. L_ agrees
that during th. ll8cal period Immedllll81y following the fiscal period In
which such termination occurs n will not so purch8aa, lease. rent or
oth.rwlse acqulra the usa of any such oth.r equipment or services..
7. REPRESENTATIONS. COVENANTS AND WARRANTIES.
La.... rapraaants. covenants and warrants as of th. date hereof and
at all times during the L.... Term that: (I) Laasaa Is a atata or a fully
constituted poIitlcaI subdivision th.reof. or b obligations haraund.r
con8titute obIigaIIons i8IIued on bahaIf 01 a _ or a politlcal8UbdMsion
th.reof, such that any Interaat derived undar this Leass will qualify for
.x.mption from Federai Income tex.. under saction 103 01 the Internal
Revenu. Code of 1988, 88 amended (the "Code"). and that n will do
or causa 10 be don. all things neceuary to preslllV8 and kaep In full
force and affact (a) b .xl8tenca and (b) this Laase; (IQ the .xecullon.
delivery and performance by the Laasaa 01 this Laasa and all documants
8X8CUted In connection harawith. Including, without 1Imltalion. Schedule
A hereto and th. Daiiv.ry and Acceptance Cartificlll8 raferrad 10 In
Saction 3 hereof (th. Lease together with all such documente ah8l1 be
coIlactiveiy ratarrad 10 herein as the "Lease Documants") have bean
duly authorized by all neceesary action on tha pan 01 the Laeaaa; 011)
the Lease Documents aach con8titute a legal. valid and binding
obligatlon oIlha Laasaa enIoR:eabIe In IICCllnIn:e with their raspactive
t.rms; (Iv) no addilional governmental orders, perml8sions. con_.
approvals or authorizations are required 10 be obtained and no
raglstrations or daclaratlons are required to be fiiad in connactlon wIlh
th. .xecution and delivery of the Lease Documents; (v) Laeaaa has
sufflci.nt appropriations or other funda available 10 pay all Lease
Payments and oth.r amounts due hareunder for tha currant fiscal
pariod; (vi) the use 01 the Equipm.nt by Laeaaa Is 8888ntial to and will
be limned 10 th. parformanca by Laeaaa of one or mora govemmantal
functions of La.... consiatant wIlh the parml8slbl. ecopa 01 L_'s
authorny; (vii) no PDrllon of tha Equipment will be U8ad dlractiy or
indlr.CUy in any trade or buIlness carrIad on by any parson othar than
L.....: and (viii) no portion 01 tha equipment will be U8ad by an
organization dascribad in section 501 (c) (3) 01 the Code and OX) this
Laase doss not constitute an arbnr&ga obligation within the meaning
of section 148 of the Cod. and Is not tederally guar&ntead within the
m.aning of section 149(b) 01 the Coda.
La8888 shall delivar to Lessor an opinion 01 La8888's COUnsaJln form
and sub8tence as sat forth herein or 88 othalwIsa acceptable to Lessor.
In th. avant that a question arl888 as to Laasaa's qualification as a
political subdlYision. Laeaaa agrees 10 axecut. a power 01 attorney
authorizing Lessor 10 make application to tha Intemal Ravenua SarvIce
for a latt.r ruling wnh raspact 10 the Issue.
8. TITLE TO EQUIPMENT. Upon acceptance of the Equipment by
L.ssee h.r.under, tille to the Equipment will vast In Laasaa subject
to L.ssor's rights und.r this Lease; provided. howaver. that (I) In lh.
avant oIt.rmlnation 01 this Leass pursuant to Section 8 haraoI. OQ upon
the occurrence 01 an Event 01 Defaull h.reunder. and 88 long as such
Event of Delaull Is continuing. or (ill) in the event thatlha purchase
option has not bean exercl8ad prior 10 the expiration Dlll8, title will
Immedlataly vest In La880r or b aaalgnes wIlhout any acllon by Laasaa
and L.ss" shall Immediately surrender pos_lon of the Equipment
to Lessor or Its assignee in the mann.r set forth in Saction 5 hereof.
9. USE; REPAIRS. Laasaa will uselha Equipment in a caralul manner
for tha use contemplated by tha manufacturer oIlha Equipment. Laasaa
shall comply wIlh all laws, ordinances. Insurance poIlcIas and
regulations relating to the possession, usa. operation or maintenance
of the equipment. Laasaa. at b expanse. will kaep tha Equtpmentln
good working order and rapalr and furnish all parts. mechanisms and
devices required therefor.
10. AL TERA nONS. Les_ will not make any ailarations, addnlons
or Improvarnants to tha equipment without Lessor's prior wrhten
consent unl... SUch aharations. 8ddltions or Improvarnants may be
readily ramovad wnhout damag. 10 the Equipmsnt.
11. LOCAnON; INQCTION. The Equipment will not be removed
from or, II the Equipment conalats 01 roiling atock, b parmanent base
will not be changed from lha Equipment Location without ~s'prior
written consent which will not be unreasonably withheld. Lassor will
be enthled to enter upon tha Equipment location or elsewhere during
reasonable bualness hours to inspact lha Equipment or obaarve b use
and operation.
12. UENS AND TAXES. La.... shall keep tha Equlpmentfree and
clear 01 all levies. liens and encumbrances except those cralll8d under
this Leass. Lesaea shall pay, when dua, all chlllgl/S and texes 00ca1.
alata and federal) which may now or h.raatter be Impoaad upon the
ownership. leasing, rental, sale, purchase. posslSsion or use 01 the
Equipment, excluding howaver. all leXes on or measured by Lessor's
incom.. If La8888lails to pay said chlllgl/S. or taxas when due, Lessor
may, but need not. pay said charges or _ and,ln SUch event. Lessee
shall reimburse La880r tharafor on demand, with interaat at the
maximum rate parmhted by law from the dlll8 01 such payment by
Lassor to lha date 01 reimbursement by Laeaaa.
13. RISK OF LOSS; DAMAGE; DESTRUCTION. Laasaa assumes
all risk of 1088 01 or damage to lha equipment from any cause
wI>'Il8o ....... and no SUch loss 01 or damage to tha Equipmant nor datact
thareln nor unfttness or ~ thereof ah8l1 relieve Le..ee of
the obligation 10 make Leass Payments or 10 perform any other
obIlgatlon under this Leass. In tha avant of damage 10 any item of
Equipment. La8888 will immediately plKe tha _In good repair with
the procaeds 01 any Insurance racovary applied to tha coat of such
rapeir. If Lessor determines that any nem 01 Equipment Is ioat, slOlan.
destroyed or damaged beyond rapalr. Lesaea. at tha option of Lassor,
will .nh.r (a) replace tha _ with like equipment In good rapalr. or
(b) on the next Laau Payment Dlll8, pay Lessor: (I) all amounts than
0Wad by Lessae to Lessor under this Laau. including the Laase
Payment due on such date, and (II) an amount equal to the applicable
Concluding Payment set forth In Schedule A opposne such La88e
Payment Dlll8. In the event that L_ Is obligated to make such
payment purau8/1t to subpansgraph (b) above with raspact to less than
all oIlha equipment, Lasaorwlll provide Lesaae with tha pro rata amount
01 the La... Paymant and tha Concluding Payment to be made by
La.... with raspact to tha Equipment which has suffered the event
011088.
14. PERSONAL PROPERTY. The Equlpmantls and will ramaln
personal property and will not be daamed to be affixed or atteched 10
raaI_ or any bullding lharaon. If raquaated by~, Laasaa will.
at Laasaa's expanse. furnish a walvar 01 any Intereat in tha Equipment
from any party hevlng an Interaat In any such raaI _ or building.
15. INSURANCE. Laasaa, will. at b expanse. maintain at all limes
during lha Leass T.rm, fira and extended covsrega. public llabllny and
property damage insurance with raspact to tha equipment In such
amounts. covering such riaks. and with such Insurers as shall be
saliatactory to Lessor, or, with Lessor's prior written consent. may saII-
Insura agaInat any or all such riaks. In no _ will tha insurance 11mb
be leas than tha amount 01 tha than applic8ble Concluding Payment
with respect to such Equipmant. Each insurance policy will name
Laasaa 88 an Insured and Lasaor or b asigns 88 8/1 addIu..18i Insured,
and will contain a c1auaa *lUlring tha Insurer to give Lassor or b
aaalgns at ieaat thirty (30) days prior written notice of any aiI.ration
In th. terms 01 SUch policy or the cancatIatIon tharaof. The Proceeds
01 any such IlOIIclas will be payable to Laasaa and Lessor or b aaslgns
asthair Intaraats may appear. Upon acceptance oIlha equipment and
upon each Insurance ren_ date. Lessae will deliver to Lassor a
certificate evidaolCillll8Uch 1n8uranca. In tha _that Lesaae has baan
parmhted to 88If.insura, Lessae will furnish Lessor with a latter or
certificate to such affect. In tha _ of any 1088. damage. Injury or
accident Involving tha equipment, Lessae will prompay provide Lessor
with wrhten notice tharaoI and make available to Lessor a1lln1onnation
and documentation ralatIng thereto and Shall parmn Lassor 10
participate and ooop....... with Laasaa In making any claim for Insurance
In resPact tharaol.
16. INDEMNIFICATION. Lessee shalllndem'Jill'oltessor against, and
.hOld Lessor hsrmless lrom, any and all claimVions proceedings,
expenses, clameges or lIabllites, Including attomey's lees and court
costs, arising in connection with the Equipment, Including, but not
limned to, its selection, purchese, delivery, installation, possession, use,
'operation, rejection, or retum and the recovery 01 claims under
insurance poticies thereon. The indemnification provided under this
Section shall continue in full force and effect notw"hstanding the lull
payment of all obligations under this Lease or the termination 01 the
Lease Term for any reason.
17. ASSIGNMENT. Without Lessor's prior wriIIen consent, Lessee
will not Mher (i) assign, transfer, pledge, hypothecate, grant any secumy
interest in or otherwise dispose 01 this Lease or the Equipment or any
interest in this Lease or the Equipment or (ii) sublet or lend the
Equipment or permit it to be used by anyone other than Lessee or
Lessee's employees. Lessor may assign ~ rights, titie and interest
in and to the Lease Documents, the Equipment and/or grant or assign
a security intarest in this Lease and the Equipment, in whole or in pert,
and L~ssee's rights will be subordinated thereto. Any such assignees
shall have all 01 the rights 01 Lessor under this Lease. Subject to the
loregoing, this Lease inures to the benefit 01 and is binding upon the
successors and assigns 01 the parties hereto. Lessee covenants and
agrees not to assert against the assignee any clalms or delenses by
way 01 abatement setoff, counterclaim, recoupment or the like which
Lessee may have against Lessor. Upon assignment of Lessor's interests
herein, Lessor will cause written notice 01 such assignment to be sent
to Lessee which will be sufficient il n discloses the name 01 the assignee
and address to which further payments hereunder should be made.
No further action will be required by Lessor or by Lessee to evidence
the assignment, but Lessee will acknowladge such assignments in
writing iI so requested. Lessee shall retain all notices 01 assignment
and maintain a book-entry record (as relerrad to in Section 21) which
identifies each owner 01 Lessor's interest in the Lease. Upon Lessee's
receipt 01 written notice 01 Lessor's assignment 01 all or any part 01
its interest in the Lease, Lessee agrees to attorn to and recognize any
such assignee as the owner 01 Lessor's interest in this Lease, and
Lessee shall therealter make such peyments, including without
limitation such Lease Payments, as are indicated in the notice 01
assignment, to such assignee.
18. EVENT OF DEFAULT. The term "Event of Delault," as used
herein. means the occurrence 01 anyone or more 01 the following
events: (i) Lessee lails to make any Lease Payment (or any other
payment) as "becomes due In accordance with the terms ofthia Lease,
and any such lailure continues for ten (10) days alter the due date
thereof; (i1) Lessee lails to perform or observe any other covenant,
condition, or egreementto be performed or observed by it hereunder
and such failure is not cured within twenty (20) days alter wriIIen notice
thereol by Lessor; (iii) the discovery by Lessor that any statement,
representation, or warranty made by Lessee in this Lease or in any
writing ever delivered by Lessee pursuant hereto or in connection
herewith was lalse, misleading, or erroneous in any material respect;
(iv) Lessee becomes insolvent, or is unable to pay its debts as they
become due, or makes an assignment lor the benelit 01 creditors,
applies or consents to the appointment of a receiver, trustee,
conservator or liquidator 01 Lessee or 01 any 01 Its assets, or a pet"ion
for rellel ia filed by Lessee under any bankruptcy, insolvency,
reorganization or similar laws, or a petition in, or a proceeding under,
any bankruptcy, insolvency, reorganization or similar laws ia filed or
inatitutad against Lessee and ia not dismissed or lully stayed within
twenty (20) days alter the filing or inst"ution thereof; (v) Lessee lails
to make any payment when due or lails to perform or observe any
covenant, cond~n, or agreement to be performed by " under any other
egreement or obligation with Lessor or an alllllate of Lessor and any
applicable grace period or notice with respect _ shall have elapsed
or been given; or (vi) an attachment, levy or execution is threatened
or levied upon or egainst the Equipment.
19. REMEDIES. Upon the occurrence 01 an Event 01 Delault, and
as long as such Event of Default is continuing, Lessor may, at ~ option,
exercise anyone or more of the following remedies: (i) by wriIIen notice
to Lessee, declare an ~nt equal to all amounts then due under the
Lease, and all remain ease Payments due during the liscal year
01 Lessee in which th tlelault occurs to be immediately due and
payable, whereupon the same shall become immadiately due .and
payable; (iI) by writtan notice to Lessee, request Lessee to (and Lessee
egrees that" will), at Lessee's expense, promptly retum the Equipment
to Lessor in the manner set forth in Section 5 hereol, or Lessor, at its
option, may enter upon the premises where the Equipment is located
and take immediate possession 01 and remove the same; (iii) sell or
lease the Equipment or sublease it lor the account 01 Lessee, holding
Lessee liable lor all Lease Payments and other payments due to the
effective date 01 such selling, leasing or subleasing and lor the
dlllerence between the purchase price, rental and other amounts paid
by the purchaser, lessee or sublessee pursuant to such sale, lease
or sublease and the amounts otherwise payable by Lessee hereunder;
and (iv) exercise any other right, remedy or privilege which may be
available to it under applicable laws 01 the state where the Equipment
is then located or any other applicable law or proceed by appropriate
court action to enlorce the terms 01 this Lease or to recover damages
lor the breach 01 this Lease or to rescind this Lease as to any or all
of the Equipment. In add"ion, Lessee will remain liable lor all covenants
and Indemnities under thia Lease and for all legal lees and other costs
and expenses, including court costs, incurred by Lessor with respect
to the enlorcement 01 any 01 the remadies listed above or any other
remedy available to Lessor.
20. PURCHASE OPTION. Upon thirty (30) days prior written notice
from Lessee, and provided that there is no Event 01 Default, or an event
which with notice or lapse of time, or both, could become an Event
of Default, then existing, Lessee will have the right to purchase the
Equipment on any Lease Payment date set lorth in Schedule A hereto
by psying to Lessor, on such date, the Lease Payment then due together
with the Concluding Payment amount set forth in Schedule A opposite
such date. Upon satisfaction by Lessee 01 such purchase conditions,
Lessor will transler any and all of its right, title and interest in the
Equipment to Lessee AS IS, WITHOUT WARRANTY, EXPRESS OR
IMPUED, except Lessor will warrant that the Equipment is Iree and
clear 01 any liens created by Lessor.
21. TAX ASSUMPTION; COVENANTS. The parties assume that
Lessor can exclude lrom Federal gross income the interest portion 01
each Lease Payment set forth in Schedule A under the column
captioned "Interest Portion. If
Lessee covenants that it will (i) register this Lease and translers
thereof in accordance with section 149(a) 01 the Code and the
regulations thereunder, (iI) timely file a statement with respect to this
Lease in the required lorm in accordance with section 149(e) 01 the
Code, (Iii) not permit the property financed by this Lease to be directly
or indirectly used lor a private business use within the meaning 01
section 141 of the Code, (iv) not take any action which results, directly
or indirectly, in the Interest pornon of any Lease Payment not being
excludable from Federal gross income pursuant to section 103 of the
Code and will take any reasonable action necessary to prevent such
result, and (v) not take any action which results in this Lease becoming,
and will take any reasonable action to prevent this Lease from becoming
(a) an arbitrage obIigstion within the meaning 01 section 148 01 the Code
or (b) federally guaranteed within the meaning 01 section 149 01 the
Code.
Notw"hstanding the eartier termination or expiration 01 this Lease,
the obllgationa provided lor in thia Section 21 shall survive such earlier
termination or expiration.
22. NOTICES. All notices to be given under this Lease shall be made
in writing and mailed by certified mail, return receipt requested, to the
other party at ~ address set lorth herein or at such address as the
psrty may provide in writing from time to time. Any such notice shall
be deemed to have been received five days subsequent to mailing.
23. SECTION HEADINGS. All section headings contained herein are
lor the convenience 01 relerence only and are not intended to define
or 11m" the scope 01 any provision ofthia Lease.
24. GOVERNING LAW. This Lease shall be co'V""!fld In accordance
with, and governed by, the laws aflhe state aflhe\wl!pment Location.
25. DELIVERY OF RELATED DOCUMENTS. Lessee will execute or
provide. as raquested by Lessor, such other documenta and InfotmaIion
all are reasonably necessary with respect to the transaction
contamplated by this Lease.
26. ENTIRE AGREEMENT; WAIVER. The Lease Documents
constitute the entire agrBJllllf'tbetwaan the parties with respect to the
IaBSe of the Equipment. "",is Lease shall not be modified, amandad.
altered, or changed except with tha wrill8n consent 01 Lessee and
Lessor. Any provision of this Lease found to be prohibited by law shall
be lnellectlveta the extent 01 such prohibition without invalidating the
remainder of this Lease. The waiver by Lessor of any breech by Lessas
of any term, covenant or condition hereof shall not operate as a waiver
01 any subsaquent braach thereof.
LESSEE: City of San Bernardino, CA
IN WITNESS WHEREOF, the parties have exacuted this Agreement as 01 the
LESSOR: Associates Commercial CorporR~;nn
By: .y
Titla: .r
day 01
19_
By:
TlUe:
Edward F. Pletzke, II
Vice President
OPINION OF COUNSEL
With respect to that certain Equipment La....Purchase Agreement
("Leasa") datad ," by and between
I. essor and Lasses:1 am 01 the. opinion that: (i) Lessee is a tax exempt
entity under Section 103 of the Intamal Revenue Code 011986, as
amended; (ii) the axacution. delivery and performance by Lessas of
the Lease have been duly authorized by all neceasary action on the
part 01 Lasses; 011) the Lease conslitutas a legal, valid and binding
obligation 01 LB8S8S enlorceable In accordance with Its terms and all
statements contained in the Lease and all ratatad instruments are true;
(iv) there are no suits. proceedings or invasligations pending or, to my
knowledge, threatened against or allactIng Lessee. at law or in equity,
or belore or by any governmental or administrative agency or
Counsel for Lessee:
instrumentality which, il advarsaIy determined. would have a material
adverse alI8c:t on the transaction contsmplated in the Lease or the ability
of Lessee to perform Its obligations under the Lease and Less.. is not
in default under any malenT obligation lor the payment of borrowed
money. lor tha dalerred purchase price of property or lor the payment
of any rent under any Ieasa agreement which either individually or in
tha aggregate would have the same such effect; and (v) all required
public bidding prooeduras regarding the award of the Lease have been
followed by Lessas and no governmental orders, permissions. consents,
approvals or authorizations are required to be obtained and no
registrations or declarations era required to be filed in connection with
tha exacutlon and delivery of the Lease.
By: X
Title: )c
Date: X
,
ll25689 Rev. 8-90
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RESOLUTION NO.
RESOLUTION OF THE CITY OF SAN BERNARDINO AWARDING A SCHEDULE
A ADDENDUM TO LEASE PURCHASE AGREEMENT OF ASSOCIATES COMMERCIAL
CORPORATION, FOR THE FINANCING OF SIX (6) EACH, AUTOMATED SIDE
LOADING REFUSE TRUCKS, TO BE UTILIZED BY THE PUBLIC
SERVICES/REFUSE DEPARTMENT IN ACCORDANCE WITH BID SPECIFICATION F-
94-06.
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO A FOLLOWS:
SECTION 1. That Associates Commercial Corporation is the
lowest and best responsible bidder for the financing of six (6)
each, automated side loading refuse trucks in accordance with Bid
Specification F-94-06 for the total amount of $767,360.60 at 5.04%
interest payable six (6) months in arrears over five (5) years;
pursuant to this determination, the Purchasing Agent is hereby
authorized and directed to issue Schedule A addendum to Lease
Purchase Agreement of Associated Commercial Corporation for said
financing of six (6) each, automated side loading refuse trucks to
said lowest and best responsible bidder; such award shall only be
effective upon the issuance of a Schedule A Addendum to the Lease
Purchase Agreement by the Purchasing Agent; and all other
quotations therefor are hereby rejected.
SECTION 2. The authorization to execute the above
referenced Schedule A Addendum to Master Lease Purchase Contract
of Associates commercial Corporation is rescinded if it is not
issued within sixty (60) days of the passage of this resolution.
/ / / / / / / /
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07-11-94 -1-
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RESOLUTION OF THE CITY OF SAN BERNARDINO AWARDING A SCHEDULE A
ADDENDUM TO LEASE PURCHASE AGREEMENT OF ASSOCIATES COMMERCIAL
CORPORATION, FOR THE FINANCING OF SIX (6) EACH, AUTOMATED SIDE
LOADING REFUSE TRUCKS, TO BE UTILIZED BY THE PUBLIC
SERVICES/REFUSE DEPARTMENT IN ACCORDANCE WITH BID SPECIFICATION F-
94-06.
I HEREBY CERTIFY that the foregoing resolution was duly
adopted by the Mayor and Common Council of the City of San
Bernardino at a
meeting thereof, held on the
day of
the following vote, to ~it:
Council Members: ~
, 199_, by
~
ABSTAIN
ABSENT
NEGRETE
CURLIN
HERNANDEZ
OBERHELMAN
DEVLIN
POPE-LUDLAM
MILLER
City Clerk
The foregoing resolution is hereby approved this
day of , 199_
Tom Minor, Mayor
City of San Bernardino
Approved as to form
and legal content:
James F. Penman,
City Attorney
By:
07-11-94
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