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HomeMy WebLinkAbout16- Public Services CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACITIONN From: Randy Kuettle, Acting Director Subject: Resolutions of the Mayor and Common Council of the City of San Dept: Public Services Bernardino authorizing the execution of an Agreement and issuance of a Date: April 28, 2010 Purchase Order to Fairview Ford of San Bernardino for the purchase of four (4) 2010 Ford Crown Victoria Police Interceptors and Crest Chevrolet of San Bernardino for the purchase of six (6) Police Tahoe's and award a bid for lease purchase financing to Bank of America. Meeting Date: May 3, 2010 Synopsis of Previous Council Action Reso 2006-80 March 20, 2006 Purchase of 23 PD Interceptors Reso 2007-80 March 5, 2007 Purchase of 42 PD interceptors Reso 2008-102 April 7, 2008 Purchase of 27 PD interceptors Reso 2009-99 April 20, 2009 Purchase of 28 PD interceptors Recommended Motion: Adopt Resolutions. ignature Contact person: Don Johnson, Fleet Manager Phone: 5220 Supporting data attached: Staff Report, Resolutions, Vendor Service Ward: All Agreements, Attachment "1" and Lease Purchase Agreement FUNDING REQUIREMENTS: Amount: FY 10-11 $314,922.56 Source: 635-341-5803 (Lease Payments) //�� Finance: Council Notes: 45.56 '-5 a0 i0 90 4f aoi0-9 / Agenda Item No. 5-3-2010 Rt9U,G&Kua4- 'Pf194 CITY OF SAN BERNARDINO OFFICE OF THE PUBLIC SERVICES DIRECTOR INTER-OFFICE MEMORANDUM TO: Charles McNeeley, City Manager FROM: Don Johnson, Public Services Fleet Division DATE: April 28, 2010 SUBJECT: City Manager's Approval of Process — Purchases made pursuant to Section 3.04.010(B)(3) and Section 3.04.075 of the City's Municipal Code (Purchases approved by the Mayor and Common Council and emergency purchases approved by the City Manager). DDL Number 82. COPIES: Randy Kuettle, Acting Director of Public Services Both Fairview Ford and Crest Chevrolet were selected as a Sole Source for the following reasons: 1. Ford Motor Company is the only manufacturer of the Crown Victoria Police Interceptor model, which has been the specified standard for the Police Department for over ten years. Fairview Ford of San Bernardino is the sole local Ford dealer. 2. Fairview Ford's base price this year is the same as last year. In the opinion of the Fleet Manager the price quoted by Fairview Ford, which was the lowest quote last year, is a competitive price. 3. Crest Chevrolet is the only Chevrolet dealer in the City and has proven to be reliable. A Request for Council Action entitled, "Resolutions 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 for the purchase of four (4) 2010 Ford Crown Victoria Police Interceptors and Crest Chevrolet of San Bernardino for the purchase of six (6) Police Tahoe's and award a bid for lease purchase financing to Bank of America" has been submitted and placed on the May 3, 2010 agenda calendar for review and approval. Don W. Johnson Fleet Services Division Manager Appro d By: ares McNeeley City Manager CITY OF SAN BERNARDINO — REQUEST FOR COUNCIL ACTION Staff Report SUBJECT: Resolutions of the Mayor and Common Council of the City of San Bernardino authorizing the execution of Agreements and issuance of Purchase Orders to Fairview Ford of San Bernardino for the purchase of four (4) 2010 Ford Crown Victoria Police Interceptors and Crest Chevrolet of San Bernardino for the purchase of six (6) Chevrolet Police Package Tahoes and award a lease-purchase agreement to Bank of America. BACKGROUND: Vehicle Purchase The Mayor and Common Council approved Resolution 2009-99 on April 20, 2009, authorizing the purchase of twenty-eight (28) 2009 Crown Victoria Police Interceptors from Fairview Ford, for black and white vehicle replacement during FY 2009/2010. Fleet staff has now completed the patrol vehicle replacement model for upcoming FY 2010/2011. Based on usage and mileage, the Fleet computer model recommends the purchase of ten (10) vehicles as replacements for the high-mileage units that will be removed from service beginning in FY 2010/2011. This purchase request will be for a total of ten (10) units. After meeting with the Fleet Department, the Police Department recommends the purchase of four Crown Victoria Police Interceptor sedans for patrol replacements. The department recommends replacing the other six Crown Victorias with Chevrolet Tahoe Enforcement utility vehicles. These vehicles will be assigned to patrol supervisors, and the Gang Enforcement Team supervisors based on the following justification. For many years, there has been a need for our uniformed patrol supervisors to carry more specialized equipment such as less lethal weapons, in-the-field incident command materials, and in some instances extra personnel. Today, specialized supervisory items overfill the standard trunk of a Crown Victoria sedan to the point that the supervisor's personal work bags must be carried in the back seat of the sedan. The equipment is difficult to keep organized and accessed quickly in a critical incident situation. There is no internal work space in a sedan, limiting a supervisor in the need to provide a mobile Incident Command System. These utility vehicles will allow supervisors to effectively carry equipment in a larger trunk area while still having room to conduct scene and incident management work at the rear area of the vehicle. Supervisory vehicles are often the rally/assembly point for officers at critical incidents. Many regional and state law enforcement agencies have proven that these utility vehicles can serve as necessary field command management sites during emergencies- Our own Fire Department uses this type of command vehicle effectively for critical incidents. Supervisory utility vehicles are quickly becoming the industry standard for emergency supervisory vehicles, out of necessity, operational effectiveness, and the ability to transport equipment and personnel. The Gang Enforcement Team/SWAT supervisors are required to carry the same supervisory tools that patrol sergeants carry. Additionally, they have unique extra pieces of large safety equipment that are used by their specialty teams during emergencies. Specialized equipment is necessary, for example, at the site of a narcotics or gang related search warrant. These vehicles will provide secure storage of specialty items while affording the supervisors the ability to transport 2-3 team members to emergency/crisis events. There have been recent critical incidents that have taken place in the foothills and rugged terrain requiring police response and the establishment of a mobile incident command. These utility vehicles will facilitate this need and be able to deliver resources and personnel to areas of rugged terrain. Having utility vehicles deployed in the field will reduce response time to crisis incidents and insure that officers have all equipment/resources available for a timely response. After the riot at the National Orange Show, an evaluation of police response was conducted. Recommendations were made to provide utility vehicles for supervisors for the reasons cited above. The utility vehicle would have improved initial response by having more equipment available during the early stages of response. To date these recommendations have not moved forward. The change in police fleet strategy is prudent to pursue at this time, especially since other adjustments to the Police Department fleet will result in reduced costs from what was originally projected. Crown Victoria Sedan Purchase: In November 2009, staff requested a quotation from Fairview Ford for four (4) year 2010 model Crown Victoria Police Interceptors, and negotiated a base price of $24,693 plus tax for each vehicle ordered. Protech Ballistic panels for both front doors and installation are included in this quote as it is now offered as an option from Ford Motor Company. The total cost is $26,924.12 for each vehicle including tax. Fairview Ford has held the same pricing as last year (See Attachment "1"). Base price as quoted by Fairview Ford $24,693.00 each vehicle Tax @ 9% $ 2,222.37 each vehicle Tire Fee $ 8.75 each vehicle Total price $26,924.12 each vehicle Ford Motor Company is the only manufacturer of the Crown Victoria Police Interceptor model, which has been the specified standard for the Police Department for over ten years. Fairview Ford of San Bernardino is the sole local Ford dealer. The following illustrates the record of purchases of Crown Victoria Police Interceptors for the last four years (including tax). Year Quantity Vendor Per Unit 2006 23 Fairview Ford, San Bernardino $24,580.00 2007 42 Fairview Ford, San Bernardino $24,732.00 2008 27 Fairview Ford, San Bernardino $25,591.00 2009 28 Fairview Ford, San Bernardino $26,924.12 For comparison, as always, Fleet staff has reviewed the State contract awarded this year through the Department of General Services. it is the statewide contract that is bid from all dealerships. The two configurations from the State contract that have similar specifications to the City's are priced as follows, $27,388.00 and $27,842.00 including tax. Fairview Ford's price for the units is $26,924.12 including tax. Fairview's base price this year is the same as last year. In the opinion of the Fleet Manager, the price quoted by Fairview Ford, which was the lowest quote last year, is a competitive price. Staff is therefore recommending approval of a purchase order to Fairview Ford in the amount of $26,924.12 per unit for four (4) vehicles amounting to a total cost of $107,696.48 plus lease costs pursuant to Municipal Code Chapter 3.04.010 Section B.3. Exemptions: #3. Purchases approved by the Mayor and Common Council. Utility Vehicle Purchase: The 2011 Chevrolet Tahoe purchase window for police vehicles is later in the calendar year than for Crown Victoria Police Interceptors. Staff will obtain quotes for the six vehicles and process the Request for Purchase as soon as pricing becomes available. The purchase price for these six vehicles will not exceed the maximum authorized amount of the lease-purchase presented by Bank of America. The lease/purchase of the utility vehicles will result in budget savings from the original proposal to purchase only Crown Victoria vehicles. Staff is therefore recommending approval of a purchase order to Crest Chevrolet, of San Bernardino, for six (6) vehicles not to exceed $36,000.00 each, amounting to a total cost of $216,000.00 plus lease costs pursuant to Municipal Code Chapter 3.04.010 Section B.3. Exemptions: #3. Purchases approved by the Mayor and Common Council. The combined total purchase amount for both sedans and SUV vehicles will not exceed the total amount authorized by Bank of America for the lease-purchase. POLICE DEPARTMENT FLEET REDUCTION SAVINGS: In an effort to further reduce fleet costs, and as part of the overall justification and vehicle replacement plan, the following vehicles will be removed from the Police Department's fleet effective July 1, 2010. These vehicle reductions have been accomplished by an assessment of Police Department fleet operations and utilization. Based on the sharing and utilization of vehicles, there will be no impact on current operations. Parking Enforcement Pickup Truck 01 Savings: $ 3,500.00 Parking Enforcement Pickup Truck 02 Savings: $ 3,500.00 CSO Black-and-White Sedan 171 Savings: $ 5,000.00 CSO Black-and-White Sedan 172 Savings: $ 5,000.00 Traffic Sergeant Sedan 143' Savings. $ 5,000.00 Recruiter's Black-and-White Sedan 021" Savings: $ 3,500.00 Total Savings $25,500.00 Lease Purchase Financing Staff issued a request for rate quote RFQ LQ - 1002 to the four financing/leasing companies that have existing master lease agreements in place with the City and four financing/leasing companies that don't have existing master lease agreements in place with the City. RFQ LQ — 1002 was for a total amount of $3,579,720.89 for ten (10) Autocar refuse truck chassis' & body and one (1) 2009 Schwarze M6000 Broom Sweeper powered by Compressed Natural Gas. The RFQ requested an amortization schedule of seven years with semi-annual payments. The seven year repayment is within the City's established replacement schedule for the vehicles. RFQ LQ — 1002 was sent out on February 21, 2010 and due back on March 2, 2010. Of the eight lenders solicited, Finance received two "no bids" and five "no responses". Finance staff called the lenders to obtain explanations for the lack of responses. All provided various reasons why bids were not submitted. Comerica Leasing Corporation is currently only lending to depositors that maintain a balance equal to or greater than 15% of the amount requested. FMLC is a financing broker and the banks associated with FMLC were either not interested in the City's request or received the RFQ directly from the City. Ford Credit Municipal Finance declined to bid because they're only bidding on deals that meet their criteria for essential use and finance structure. Koch Financial Corporation declined to bid because of their corporate decision to only fund specific deals. SunTrust Leasing Corporation declined to bid and did not respond to requests for information about their decision to not bid. Union Bank declined to bid because the RFQ was too small and they're only financing small deals for existing customers. Wells Fargo declined to bid because the RFQ did not meet their set criteria. Due to the time constraint for the police vehicle purchase order and based upon the responses received from the lenders, Staff asked Bank of America if they would hold their rate bid from RFQ LQ — 1002 for the purchase of ten (10) police vehicles. Bank of America agreed to hold their bid rate from RFQ LQ — 1002 for the purchase of ten (10) police vehicles. Bank of America provided a lease-purchase agreement for 3 years at a 3.78% interest rate for the police vehicle cost of $323,700. The semi-annual payment for this lease-purchase will be $57,574.46. The 3.78% interest is the same rate Bank of America bid in response to RFQ LQ — 1002. The lack of bids submitted can be tied to the current state of our economy and based upon the information received from the lenders, they have adjusted their policies for which type of lease-purchases they will fund. Though Bank of America provided the sole bid, it is staff's recommendation to award the bid and enter a lease-purchase contract (Exhibit "C" to the Resolution) with Bank of America. Within a twelve month period Bank of America was awarded three lease- purchase financing bids by the City. The three bids Bank of America won were also bid competitively and won against other submitted bids. Therefore, staff considers Bank of America to be a responsible and qualified lender. FINANCIAL IMPACT: No lease payments are scheduled for this fiscal year. Funds for the lease payment will be budgeted next fiscal year in account number 635-400-5803-0000-0001. The semi- annual payment is $57,574.46. The total annual cost for this lease-purchase is $115,148.92. This cost is offset by a lease-purchase agreement that ended this fiscal year. Staff budgeted a final payment of $108,943 this fiscal year to payoff a previously approved vehicle lease-purchase. The increased budget amount from the two leases is $6,205.92. RECOMMENDATION: Adopt Resolutions. 1 RESOLUTION NO. Copy V 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT 3 AND ISSUANCE OF A PURCHASE ORDER TO FAIRVIEW FORD OF SAN 4 BERNARDINO FOR THE PURCHASE OF FOUR(4) 2010 FORD CROWN VICTORIA POLICE INTERCEPTORS AND AWARD A LEASE-PURCHASE AGREEMENT TO 5 BANKOFAMERICA. 6 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 7 8 SECTION 1. The City Manager of the City of San Bernardino is hereby authorized to 9 execute on behalf of said City an Agreement between the City of San Bernardino and Fairview 1. a copy of which is attached hereto, marked Exhibit "A" and incorporated herein by i I reference as fully as though set forth at length. 12 SECTION 2. This purchase is exempt from the formal contract procedures of Section 13 3.04.010 of the Municipal Code, pursuant to Section 3.04.010. B.3 of said Code "Purchases © 14 15 approved by the Mayor and Common Council". 16 SECTION 3. That Fairview Ford has offered a purchase price of$26,924.12 per 2010 17 Ford Crown Victoria vehicle,which includes tax for a total not to exceed $107,696.48 pursuant 18 to Section 3.04.010 B-3 of the Municipal Code. 19 SECTION 4. The Purchase Order shall reference this Resolution Number and shall 20 read, "for the purchase of four (4) 2010 Ford Crown Victoria Police interceptors" and shall 21 22 incorporate the terms and conditions of the Agreement. 23 SECTION 5. That Bank of America provided the lowest rate quote for the lease- 24 purchase of a four (4) Ford Crown Victorias, marked Exhibit "C". Pursuant to this 25 determination the Director of Finance is hereby authorized to execute lease-purchase 26 documents with Bank of America. 27 28 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT 2 AND ISSUANCE OF A PURCHASE ORDER TO FAIRVIEW FORD OF SAN BERNARDINO FOR THE PURCHASE OF FOUR(4) 2010 FORD CROWN VICTORIA 3 POLICE INTERCEPTORS AND AWARD A LEASE-PURCHASE AGREEMENT TO 4 BANK OF AMERICA. 5 - _ SECTION 6. The authorization to execute the above referenced Purchase Order and 6 7 Agreement is rescinded if not issued within sixty(60)days of the passage of this Resolution. 8 /// g 10 11 12 13 14 15 16 17 18 19 20 21 22 23 HI 24 /1/ 25 26 O 27 28 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT 2 AND ISSUANCE OF A PURCHASE ORDER TO FAIRVIEW FORD OF SAN BERNARDINO FOR THE PURCHASE OF FOUR(4) 2010 FORD CROWN VICTORIA 3 POLICE INTERCEPTORS AND AWARD A BID FOR LEASE PURCHASE 4 FINANCING TO BANK OF AMERICA. 5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor 6 and Common Council of the City of San Bernardino at a meeting thereof, held 7 on the day of , 2010,by the following vote,to wit: 8 Council Members: AYES NAYS ABSTAIN ABSENT 9 MARQUEZ 10 DESJARDINS it 12 BRINKER 13 SHORETT 14 KELLEY 15 JOHNSON 16 MCCAMMACK 17 18 19 Rachel G. Clark, City Clerk 20 The foregoing resolution is hereby approved this day of 21 2010. 22 23 Patrick J. Morris,Mayor City of San Bernardino 24 Ap oved as to form: 25 26 Yes F. Penman, City Attorney © 27 28 1 VENDOR SERVICE AGREEMENT 2 This Vendor Service Agreement is entered into this 3rd day of May 2010, by and 3 between Fairview Ford ("VENDOR") and the City of San Bernardino ("CITY" or "San 4 Bernardino'). 5 WITNESSETH: 6 7 WHEREAS,the Mayor and Common Council have determined that it is in the best 8 interest of the CITY to contract for the purchase of four(4) 2010 Ford Crown Victoria Police g Interceptors;and 10 WHEREAS, the City of San Bernardino has determined that vendor possesses the i r professional skills and ability to provide said services for the City; 12 NOW,THEREFORE, the parties hereto agree as follows: 13 1. SCOPE OF SERVICES. 14 15 For the remuneration stipulated in paragraph 2, San Bernardino hereby engages the 16 services of VENDOR to provide those products and services as set forth in its proposal dated 17 November 4, 2009, attached hereto, marked Attachment "1" and incorporated herein by this 18 reference as fully as though set forth at length. 19 2. COMPENSATION AND EXPENSES. 1 20 a. For the services delineated above, the CITY, upon presentation of an invoice, shall 21 22 pay the VENDOR up to the amount of $26,924.12 for each 2010 Ford Crown 23 Victoria Police Interceptor and to provide and perform those products and services 24 described in Section I above. Total amount not-to-exceed $107,696.48 for all four 25 (4) 2010 Ford Crown Victoria Police Interceptors. 26 b. No other expenditures made by VENDOR shall be reimbursed by CITY. 27 28 Exhibit"A" -1- 3. TERM. 1 The term of this agreement shall be for a period of one (1)year. 2 3 This Agreement may be terminated at any time by thirty (30) days prior written notice 4 by either party. The terms of this Agreement shall remain in force unless amended by written 5 agreement of the parties executed on or before date of expiration of current term of the 6 agreement. 7 4. INDEMNITY. 8 Vendor agrees to and shall indemnify and hold the City,gr fy Ty, its elected officials, employees, 9 agents or representatives, free and harmless from all claims, actions, damages and liabilities of 10 I1 any kind and nature arising from bodily injury, including death, or property damage, based or 12 asserted upon any or alleged act or omission of Vendor, its employees, agents, or 13 subcontractors, relating to or in any way connected with the accomplishment of the work or 14 performance of service under this Agreement, unless the bodily injury or property damage was i 15 actually caused by the sole negligence of the City, its elected officials, employees, agents or 16 representatives. As part of the foregoing indemnity, Vendor agrees to protect and defend at its 17 18 own expense, including attorney's fees the City, its elected officials, employees, agents or 19 representatives from any and all legal actions based upon such actual or alleged acts or 20 omissions. Vendor hereby waives any and all rights to any types of express or implied 21 indemnity against the City, its elected officials, employees, agents or representatives, with 22 respect to third party claims against the Vendor relating to or in any way connected with the 23 accomplishment of the work or performance of services under this Agreement. 24 5. INSURANCE. 25 26 While not restricting or limiting the foregoing, during the term of this Agreement, 27 VENDOR shall maintain in effect policies of comprehensive public, general and automobile 28 Exhibit"A" -2- liability insurance, in the amount of $1,000,000.00 combined single limit, and statutory 1 worker's compensation coverage, and shall file copies of said policies with the CITY's Risk V 2 3 Manager prior to undertaking any work under this Agreement. CITY shall be set forth as an 4 additional named insured in each policy of insurance provided hereunder. The Certificate of 5 Insurance furnished to the CITY shall require the insurer to notify CITY of any change or 6 termination in the policy. Insurer shall give CITY 30 days notice prior to enactment and any 7 change or termination of policy. 8 6. NON-DISCRIMINATION. 9 In the performance of this Agreement and in the hiring and recruitment of employees, 10 11 VENDOR shall not engage in, nor permit its officers, employees or agents to engage in, 12 discrimination in employment of persons because of their race, religion, color, national origin, 13 ancestry, age, mental or physical disability; medical conditions, marital status, sexual gender or 14 sexual orientation, or any other status protected by law, except as permitted pursuant to Section 15 12940 of the California Government Code. 16 7 INDEPENDENT CONTRACTOR. 17 18 VENDOR shall perform work tasks provided by this Agreement, but for all intents and 19 purposes VENDOR shall be an independent contractor and not an agent or employee of the 20 CITY. VENDOR shall secure, at its expense, and be responsible for any and all payment of 21 Income Tax, Social Security, State Disability Insurance Compensation, Unemployment 22 Compensation, and other payroll deductions for VENDOR and its officers, agents, and 23 employees, and all business licenses, if any are required, in connection with the services to be 24 performed hereunder. 25 26 27 28 Exhibit"A" -3- S. BUSINESS REGISTRATION CERTIFICATE AND OTHER REQUIREMENTS. 1 VENDOR warrants that it possesses or shall obtain, and maintain a business registration 2 3 certificate pursuant to Chapter 5 of the Municipal Code, and any other license, permits, 4 qualifications, insurance and approval of whatever nature that are legally required of VENDOR 5 to practice its business or profession. 6 9. NOTICES. 7 Any notices to be given pursuant to this Agreement shall be deposited with the United 8 States Postal Service, os e prepaid and addressed as follows: P � P eP 9 TO THE CITY: Public Services Director 10 300 North"D" Street Yl San Bernardino, CA 92418 Telephone: (909) 384-5140 12 TO THE VENDOR: Fairview Ford Sales Inc. 13 808 West 2nd Street San Bernardino, CA 92412-5516 14 Telephone: (909) 386-0281 15 Attn: Todd Eff 16 10. ATTORNEYS' FEES 17 In the event that litigation is brought by any party in connection with this Agreement, 18 the prevailing party shall be entitled to recover from the opposing party all costs and expenses, 19 including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of 20 is rights or remedies hereunder or the enforcement of any of the terms, conditions or 21 22 provisions hereof. The costs, salary and expenses of the City Attorney and members of his 23 office in enforcing this Agreement on behalf of the CITY shall be considered as "attorneys' 24 fees" for the purposes of this paragraph. 25 26 27 28 Exhibit"A" -4- 11. ASSIGNMENT. O i VENDOR shall not voluntarily or by operation of law assign, transfer, sublet or 2 3 encumber all or any part of the VENDOR's interest in this Agreement without CITY's prior i4 written consent. Any attempted assignment, transfer, subletting or encumbrance shall be void 5 and shall constitute a breach of this Agreement and cause for the termination of this 6 Agreement. Regardless of CITY'S consent,no subletting or assignment shall release VENDOR 7 of VENDOR's obligation to perform all other obligations to be performed by VENDOR 8 hereunder for the term of this Agreement. 9 12. VENUE. 10 11 The parties hereto agree that all actions or proceedings arising in connection with this 12 Agreement shall be tried and litigated either in the State courts located in the County of San 13 Bernardino, State of California or the U.S. District Court for the Central District of California, 14 Riverside Division. The aforementioned choice of venue is intended by the parties to be the 15 mandatory and not permissive in nature. 16 13. GOVERNING LAW. 17 18 This Agreement shall be governed by the laws of the State of California. 19 14. SUCCESSORS AND ASSIGNS. 20 This Agreement shall be binding on and inure to the benefit of the parties to this 21 Agreement and their respective heirs,representatives, successors, and assigns. 22 15. HEADINGS. 23 The subject headings of the sections of this Agreement are included for the purposes of 24 convenience only and shall not affect the construction or the interpretation of any of its 25 26 provisions. 27 28 Exhibit"A" -5- 16. ENTIRE AGREEMENT; MODIFICATION. 1 This Agreement constitutes the,entire agreement and the understanding between the 2 3 parties, and supercedes any prior agreements and understandings relating to the subject manner 4 of this Agreement. This Agreement may be modified or amended only by a written instrument 5 executed by all parties to this Agreement. 6 7 8 /Il 9 10 is 12 M 13 /// 14 /// 15 16 17 18 19 20 21 22 /! 23 24 /! 25 26 27 / 28 Exhibit"A" -6- VENDOR SERVICE AGREEMENT 1 FAIRVIEW FORD SALES INC. 2 IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day 3 4 and date set forth below. 5 Dated: 12010 Fairview Ford Sales, Inc. 6 By: 7 8 Dated '12010 CITY OF SAN BERNARDINO 9 By: 10 Charles E. McNeely, City Manager Approved as to Form: 1i 12 By. James F. Penman, City Attorney 13 p-- 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Exhibit"A" -7- 1 VENDOR SERVICE AGREEMENT 2 This Vendor Service Agreement is entered into this 3rd day of May 2010, by and 3 between Fairview Ford ("VENDOR") and the City of San Bernardino ("CITY" or "San 4 Bernardino'). 5 WITNESSETH: 6 7 WHEREAS,the Mayor and Common Council have determined that it is in the best 8 interest of the CITY to contract for the purchase of four(4) 2010 Ford Crown Victoria Police 9 Interceptors; and 10 WHEREAS, the City of San Bernardino has determined that vendor possesses the 11 professional skills and ability to provide said services for the City; 12 NOW,THEREFORE,the parties hereto agree as follows: 13 1. SCOPE OF SERVICES. 14 15 For the remuneration stipulated in paragraph 2, San Bernardino hereby engages the 16 services of VENDOR to provide those products and services as set forth in its proposal dated 17 November 4, 2009, attached hereto, marked Attachment "1" and incorporated herein by this 18 reference as fully as though set forth at length. 19 2. COMPENSATION AND EXPENSES. 20 a. For the services delineated above, the CITY, upon presentation of an invoice, shall 21 22 pay the VENDOR up to the amount of $26,924.12 for each 2010 Ford Crown 23 Victoria Police Interceptor and to provide and perform those products and services 24 described in Section 1 above. Total amount not-to-exceed $107,696.48 for all four 25 (4) 2010 Ford Crown Victoria Police Interceptors. 26 b. No other expenditures made by VENDOR shall be reimbursed by CITY. 27 28 -1- 3. TERM. 1 The term of this agreement shall be for a period of one (1) year. 2 3 This Agreement may be terminated at any time by thirty (30) days prior written notice 4 by either party. The terms of this Agreement shall remain in force unless amended by written 5 agreement of the parties executed on or before date of expiration of current term of the 6 agreement. 7 4. INDEMNITY. 8 Vendor agrees and shall indemnify and hold the City,gr fy its elected officials, employees, 9 agents or representatives, free and harmless from all claims, actions, damages and liabilities of 10 11 any kind and nature arising from bodily injury, including death, or property damage, based or 12 asserted upon any or alleged act or omission of Vendor, its employees, agents, or 18 subcontractors, relating to or in any way connected with the accomplishment of the work or 14 performance of service under this Agreement, unless the bodily injury or property damage was 15 actually caused by the sole negligence of the City, its elected officials, employees, agents or 16 representatives. As part of the foregoing indemnity, Vendor agrees to protect and defend at its 17 18 own expense, including attorney's fees the City, its elected officials, employees, agents or 19 representatives from any and all legal actions based upon such actual or alleged acts or 20 omissions. Vendor hereby waives any and all rights to any types of express or implied 21 indemnity against the City, its elected officials, employees, agents or representatives, with 22 respect to third party claims against the Vendor relating to or in any way connected with the 23 accomplishment of the work or performance of services under this Agreement. 24 5. INSURANCE. 25 26 While not restricting or limiting the foregoing, during the term of this Agreement, 27 VENDOR shall maintain in effect policies of comprehensive public, general and automobile r' 28 I -2- i �^ liability insurance, in the amount of $1,000,000.00 combined single limit, and statutory �✓ 1 worker's compensation coverage, and shall file copies of said policies with the CITY's Risk 2 3 Manager prior to undertaking any work under this Agreement. CITY shall be set forth as an 4 additional named insured in each policy of insurance provided hereunder. The Certificate of 5 Insurance fiunished to the CITY shall require the insurer to notify CITY of any change or 6 termination in the policy. Insurer shall give CITY 30 days notice prior to enactment and any 7 change or termination of policy. 8 6. NON-DISCRIMINATION. 9 In the performance of this Agreement and in the hiring and recruitment of employees, 10 11 VENDOR shall not engage in, nor permit its officers, employees or agents to engage in, 12 discrimination in employment of persons because of their race, religion, color, national origin, 13 ancestry, age, mental or physical disability, medical conditions, marital status, sexual gender or 14 sexual orientation, or any other status protected by law, except as permitted pursuant to Section 15 12940 of the California Government Code. 16 7. INDEPENDENT CONTRACTOR. 17 18 VENDOR shall perform work tasks provided by this Agreement, but for all intents and 19 purposes VENDOR shall be an independent contractor and not an agent or employee of the 20 CITY. VENDOR shall secure, at its expense, and be responsible for any and all payment of 21 Income Tax, Social Security, State Disability Insurance Compensation, Unemployment 22 Compensation, and other payroll deductions for VENDOR and its officers, agents, and 23 employees, and all business licenses, if any are required, in connection with the services to be 24 performed hereunder. 25 26 27 28 _3_ i i 8. BUSINESS REGISTRATION CERTIFICATE AND OTHER REQUIREMENTS. 1 VENDOR warrants that it possesses or shall obtain, and maintain a business registration 2 3 certificate pursuant to Chapter 5 of the Municipal Code, and any other license, permits, 4 qualifications, insurance and approval of whatever nature that are legally required of VENDOR 5 to practice its business or profession. 6 9. NOTICES. 7 Any notices to be given pursuant to this Agreement shall be deposited with the United 8 States Postal Service, postage prepaid and addressed as follows: 9 TO THE CITY: Public Services Director 10 300 North"D" Street 11 San Bernardino,CA 92418 Telephone: (909) 384-5140 ' 12 TO THE VENDOR: Fairview Ford Sales Inc. 13 808 West 2nd Street San Bernardino, CA 92412-5516 14 Telephone: (909) 386-0281 15 Attn: Todd Eff 16 10. ATTORNEYS' FEES 17 In the event that litigation is brought by any party in connection with this Agreement, 18 the prevailing party shall be entitled to recover from the opposing party all costs and expenses, 19 including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of 20 its rights or remedies hereunder or the enforcement of any of the terms, conditions or 21 22 provisions hereof The costs, salary and expenses of the City Attorney and members of his 23 office in enforcing this Agreement on behalf of the CITY shall be considered as "attorneys' 24 fees" for the purposes of this paragraph. 25 26 27 28 -4- 11. ASSIGNMENT. 1 VENDOR shall not voluntarily or by operation of law assign, transfer, sublet or 2 3 encumber all or any part of the VENDOR's interest in this Agreement without CITY'S prior 4 written consent. Any attempted assignment, transfer, subletting or encumbrance shall be void 5 and shall constitute a breach of this Agreement and cause for the termination of this 6 Agreement. Regardless of CITY'S consent,no subletting or assignment shall release VENDOR 7 of VENDOR's obligation to perform all other obligations to be performed by VENDOR 8 hereunder for the term of this Agreement. 9 12. VENUE. 10 11 The parties hereto agree that all actions or proceedings arising in connection with this 12 Agreement shall be tried and litigated either in the State courts located in the County of San 13 Bernardino, State of California or the U.S. District Court for the Central District of California, 14 Riverside Division. The aforementioned choice of venue is intended by the parties to be the °.W. 15 mandatory and not permissive in nature. 16 13. GOVERNING LAW. 17 This Agreement shall be governed by the laws of the State of California. 18 19 14. SUCCESSORS AND ASSIGNS. 20 This Agreement shall be binding on and inure to the benefit of the parties to this 21 Agreement and their respective heirs,representatives, successors, and assigns. 22 15. HEADINGS. 23 The subject headings of the sections of this Agreement are included for the purposes of 24 convenience only and shall not affect the construction or the interpretation of any of its 25 26 provisions. 27 28 -5- 16. ENTIRE AGREEMENT; MODIFICATION. 1 This Agreement constitutes the entire agreement and the understanding between the 2 3 parties, and supercedes any prior agreements and understandings relating to the subject manner 4 of this Agreement. This Agreement may be modified or amended only by a written instrument 5 executed by all parties to this Agreement. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 /// 22 23 24 25 26 27 28 -6- VENDOR SERVICE AGREEMENT 1 FAIRVIEW FORD SALES INC. 2 IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day 3 4 and date set forth below. 5 Dated: 2010 Fairview Ford Sales, Inc. 6 By: II� 7 8 Dated 2010 CITY OF SAN BERNARDINO 9 By: 10 Charles E. McNeely, City Manager 11 Approved as to Form: 12 By. , (°ice J es F. Penman, City Attorney 13 14 15 1G 17 18 19 20 21 22 23 24 25 26 27 28 Gecachme^.t "1" `/ FAIRVIEW FORD FLEET& TRUCK CENTER m W. 2nd STREET P.O.BOX 5516 SAN BERNARDINO,CA.92412 (909) 386-0281 or Fax: (909) 386-0292 VEHICLE ORDER CONFIRMATION 11/04/09 20:31:34 Dealer: E71156 a> 2010 CROWN VICTORIA Page: 1 of 2 Order No: 0000 Priority: Ord FIN: OC414 Order Type: 5B Price Level: 015 Ord Code: 730A Cust/Flt Name: CITY OF SB PO Number: RETAIL RETAIL . P7B POLICE INTERCEP $27415 .175 HORN/SIREN PREP $40 A: M6640A B: M6373L C: 177 SILICONE HOSES ' 320 H CLTH BUCKETS/AR (65) 21A PWR DRIVER SEAT 380 N CHIMCAL BLACK 423 .CAL EM NOT READ 730A ORDER CODE 435 REY CODE 1294X 50 DUAL EXHAUST .17" STEEL SPARE TOTAL BASE AND OPTIONS 32295 MANUAL AIR CORD TOTAL DSO/SPO OPTIONS 935 .ENG IDLE METER TOTAL 33230 - 99V .4.61, ORC FFV VS NC 440 .ELEC NOD TRANS NC TC1 .P235/55RL7 BSW NC CAL. BOARD FEES NC 14T TRUNK PACK 190 FRT LICENSE SKI I4C VEHICLE ORDER CONFIRMATION 11104/0920:31:42 Dealer: F71156 • �"i �z 3-13-D9 FAIRVIEW FORD - RETAIL - Work Sheet Stock # eNEW> Customer: Purchase: Home Ph#: I Trade-In: N/A Work Ph.#: k Sank Salespsn: -�- price 24,693.00 Accessories .00 95VO Sales Tax 2,222.37 Service Agreement .00 Cash Price 26,915.37 DNV .00 Tire Fee 8.75 Insurance Premiums .00 Total Purchase 26,924.12 Trade-In .00 Less Pay-Off .00 Net Trade-In .00 Deferred Down .00 Amount Paid Now .00 Total Downpayment .00 Amount Financed 26,924.12 GfR;H CUSTOMER'S ACCEPTANCE I RESOLUTION NO. COPY 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT 3 AND ISSUANCE OF A PURCHASE ORDER TO CREST CHEVROLET FOR THE 4 PURCHASE OF SIX (6) CHEVROLET TAHOE WAGONS AND AWARD A LEASE- PURCHASE AGREEMENT TO BANK OF AMERICA. 5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE 6 CITY OF SAN BERNARDINO AS FOLLOWS: 7 SECTION 1. The City Manager of the City of San Bernardino is hereby authorized to 8 execute on behalf of said City an Agreement between the City of San Bernardino and Crest 9 Chevrolet, a copy of which is attached hereto, marked Exhibit `B" and incorporated herein by 10 11 reference as fully as though set forth at length. 12 SECTION 2. This purchase is exempt from the formal contract procedures of Section 13 3.04.010 of the Municipal Code, pursuant to Section 3.04.010. B.3 of said Code "Purchases 14 approved by the Mayor and Common Council'. 15 SECTION 3. That Crest Chevrolet has offered a quote of $34,537.68 per 2010 16 Chevrolet Tahoe vehicle, which includes tax. However, the 2011 Chevrolet Tahoe vehicle 17 18 staff pricing is not yet available so requests a total not to exceed $36,000 per vehicle for a total 19 not to exceed$216,000 including tax pursuant to Section 3.04.010 B-3 of the Municipal Code. 20 SECTION 4. The Purchase Order shall reference this Resolution Number and shall 21 read, "for the purchase of six (6) 2011 Chevrolet Tahoe wagons" and shall incorporate the 22 terms and conditions of the Agreement. 23 SECTION 5. That Bank of America provided the lowest rate quote for the lease- 24 purchase of a six (6) Chevy Tahoes, marked Exhibit "C". Pursuant to this determination the 25 26 Director of Finance is hereby authorized to execute lease-purchase documents with Bank of 27 America. 28 (� i �✓ 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT 3 AND ISSUANCE OF A PURCHASE ORDER TO CREST CHEVROLET FOR THE 4 PURCHASE OF SIX (6) CHEVROLET TAHOE WAGONS AND AWARD A LEASE- PURCHASE AGREEMENT TO BANK OF AMERICA. 5 6 SECTION 6. The authorization to execute the above referenced Purchase Order and 7 Agreement is rescinded if not issued within sixty(60) days of the passage of this Resolution. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY © OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT 2 AND ISSUANCE OF A PURCHASE ORDER TO CREST CHEVROLET FOR THE PURCHASE OF SIX (6) CHEVROLET TAHOE WAGONS AND AWARD A LEASE- 3 PURCHASE AGREEMENT TO BANK OF AMERICA. 4 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor 5 and Common Council of the City of San Bernardino at a meeting thereof, held 6 7 on the day of 2010, by the following vote,to wit: s Council Members: AYES NAYS ABSTAIN ABSENT 9 MARQUEZ 10 DESJARDINS 11 BRINKER 12 SHORETT 13 KELLEY 14 15 JOHNSON 16 MCCAMMACK 17 18 19 Rachel G. Clark, City Clerk 20 The foregoing resolution is hereby approved this day of 2010. 21 22 Patrick J. Moms,Mayor City of San Bernardino App oved as to form: 24 25 J es F. Penman, City Attorney 26 U 27 28 1 VENDOR SERVICE AGREEMENT 2 This Vendor Service Agreement is entered into this 3rd day of May 2010, by and 3 between Crest Chevrolet ("VENDOR") and the City of San Bernardino ("CITY" or "San 4 Bernardino"). 5 WITNESSETH: 6 7 WHEREAS,the Mayor and Common Council have determined that it is in the best 8 interest of the CITY to contract for the purchase of six(6) Chevrolet Tahoe wagons; and 9 WHEREAS, the City of San Bernardino has determined that vendor possesses the 10 professional skills and ability to provide said services for the City; 11 NOW, THEREFORE, the parties hereto agree as follows: 12 1. SCOPE OF SERVICES. 13 14 For the remuneration stipulated in paragraph 2, San Bernardino hereby engages the 15 services of VENDOR to provide those products and services as set forth in its proposal dated 16 April 15, 2010, attached hereto, marked Attachment "2" and incorporated herein by this 17 reference as fully as though set forth at length. 18 2. COMPENSATION AND EXPENSES. 19 a. For the services delineated above, the CITY, upon presentation of an invoice, shall 20 pay the VENDOR up to the amount of$34,537.68 for each Chevrolet Tahoe wagon 21 22 and to provide and perform those products and services described in Section 1 23 above. Total amount not-to-exceed $207,226.08 for all six (6) Chevrolet Tahoe 24 wagons. 25 b. No other expenditures made by VENDOR shall be reimbursed by CITY. 26 TERM. ® 27 The term of this agreement shall be for a period of one (1) year. 28 Exhibit`B" -1- This Agreement may be terminated at any time by thirty (30) days prior written notice 1 by either party. The terms of this Agreement shall remain in force unless amended by written 2 3 agreement of the parties executed on or before date of expiration of current term of the 4 agreement. 5 4. INDEMNITY. 6 Vendor agrees to and shall indemnify and hold the City, its elected officials, employees, 7 agents or representatives, free and harmless from all claims, actions, damages and liabilities of 8 any kind and nature arising from bodily injury, including death, or property damage, based or 9 asserted upon any or alleged act or omission of Vendor, its employees, agents, or 10 11 subcontractors, relating to or in any way connected with the accomplishment of the work or 12 performance of service under this Agreement, unless the bodily injury or property damage was 13 actually caused by the sole negligence of the City, its elected officials, employees, agents or 14 representatives. As part of the foregoing indemnity, Vendor agrees to protect and defend at its 15 own expense, including attorney's fees the City, its elected officials, employees, agents or 16 representatives from any and all legal actions based upon such actual or alleged acts or 17 omissions. Vendor hereby waives any and all rights to any types of express or implied 18 19 indemnity against the City, its elected officials, employees, agents or representatives, with 20 respect to third party claims against the Vendor relating to or in any way connected with the 3 � 21 accomplishment of the work or performance of services under this Agreement. 22 5. INSURANCE. 23 While not restricting or limiting the foregoing, during the term of this Agreement, 24 VENDOR shall maintain in effect policies of comprehensive public, general and automobile 25 26 liability insurance, in the amount of $1,000,000.00 combined single limit, and statutory O27 worker's compensation coverage, and shall file copies of said policies with the CITY'S Risk 28 Exhibit`B" 2 I j Manager prior to undertaking any work under this Agreement. CITY shall be set forth as an 1 additional named insured in each policy of insurance provided hereunder. The Certificate of 2 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 6. NON-DISCRIMINATION. 7 In the performance of this Agreement and in the hiring and recruitment of employees, 8 s VENDOR shall not engage in, nor permit its officers, employees or agents to engage in, 9 discrimination in employment of persons because of their race, religion, color, national origin, 10 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 7, INDEPENDENT CONTRACTOR. +s.s 15 VENDOR shall perform work tasks provided by this Agreement, but for all intents and 16 purposes VENDOR shall be an independent contractor and not an agent or employee of the 17 18 CITY. VENDOR shall secure, at its expense, and be responsible for any and all payment of 19 Income Tax, Social Security, State Disability Insurance Compensation, Unemployment 20 Compensation, and other payroll deductions for VENDOR and its officers, agents, and 21 employees, and all business licenses, if any are required, in connection with the services to be 22 performed hereunder. 23 8. BUSINESS REGISTRATION CERTIFICATE AND OTHER REQUIREMENTS. 24 25 VENDOR warrants that it possesses or shall obtain, and maintain a business registration 26 certificate pursuant to Chapter 5 of the Municipal Code, and any other license, permits, 27 � 28 Exhibit `B" -3- qualifications, insurance and approval of whatever nature that are legally required of VENDOR 1 to practice its business or profession. 2 9. NOTICES. 3 4 Any notices to be given pursuant to this Agreement shall be deposited with the United j 5 States Postal Service,postage prepaid and addressed as follows: I 6 TO THE CITY: Public Services Director 300 North "D" Street 7 San Bernardino, CA 92418 $ Telephone: (909) 384-5140 i 9 TO THE VENDOR: Crest Chevrolet 909 W 21st St. 10 San Bernardino, CA 92405 11 Telephone: (909) 883-8833 Attn: Dan Zank 12 10. ATTORNEYS' FEES 13 In the event that litigation is brought by any party in connection with this Agreement, �^ 14 `1 15 the prevailing party shall be entitled to recover from the opposing party all costs and expenses, 16 including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of 17 its rights or remedies hereunder or the enforcement of any of the terms, conditions or 18 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. 21 11. ASSIGNMENT. 22 23 VENDOR shall not voluntarily or by operation of law assign, transfer, sublet or 24 encumber all or any part of the VENDOR's interest in this Agreement without CITY's prior 25 written consent. Any attempted assignment, transfer, subletting or encumbrance shall be void 26 and shall constitute a breach of this Agreement and cause for the termination of this 27 Agreement. Regardless of CITY's consent, no subletting or assignment shall release VENDOR 28 Exhibit"B" -4- of VENDOR's obligation to perform all other obligations to be performed by VENDOR 1 hereunder for the term of this Agreement. 2 12. VENUE. 3 4 The parties hereto agree that all actions or proceedings arising in connection with this 5 Agreement shall be tried and litigated either in the State courts located in the County of San 6 Bernardino, State of California or the U.S. District Court for the Central District of California, 7 Riverside Division. The aforementioned choice of venue is intended by the parties to be the 8 mandatory and not permissive in nature. 9 13. GOVERNING LAW. 10 11 This Agreement shall be governed by the laws of the State of California. 12 14. SUCCESSORS AND ASSIGNS. 13 This Agreement shall be binding on and inure to the benefit of the parties to this 14 Agreement and their respective heirs, representatives, successors, and assigns. 15 15. HEADINGS. 16 The subject headings of the sections of this Agreement are included for the purposes of 17 18 convenience only and shall not affect the construction or the interpretation of any of its 19 provisions. 20 16. ENTIRE AGREEMENT; MODIFICATION. 21 This Agreement constitutes the entire agreement and the understanding between the 22 parties, and supercedes any prior agreements and understandings relating to the subject manner 23 of this Agreement. This Agreement may be modified or amended only by a written instrument 24 executed by all parties to this Agreement. 25 26 27 28 Exhibit`B" -5- VENDOR SERVICE AGREEMENT 1 CRESTCHEVROLET 2 3 IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day 4 and date set forth below. 5 Dated: , 2010 Crest Chevrolet 6 By: 7 8 Dated 12010 CITY OF SAN BERNARDINO 9 By: 10 Charles E. McNeely, City Manager 11 Approved as to Form: 12 By: James F. Penman, City Attorney 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Exhibit"B" -6- I 1 VENDOR SERVICE AGREEMENT © 2 This Vendor Service Agreement is entered into this 3rd day of May 2010, by and 3 between Crest Chevrolet ("VENDOR") and the City of San Bernardino ("CITY" or "San 4 Bernardino"). 5 WITNESSETH: 6 7 WHEREAS,the Mayor and Common Council have determined that it is in the best 8 interest of the CITY to contract for the purchase of six (6) Chevrolet Tahoe wagons; and 9 WHEREAS, the City of San Bernardino has determined that vendor possesses the 10 professional skills and ability to provide said services for the City; it NOW, THEREFORE,the parties hereto agree as follows: 12 1. SCOPE OF SERVICES. 13 For the remuneration stipulated in paragraph 2, San Bernardino hereby engages the �^ 14 `✓ 15 services of VENDOR to provide those products and services as set forth in its proposal dated 16 April 15, 2010, attached hereto, marked Attachment "2" and incorporated herein by this 17 reference as fully as though set forth at length. 18 2. COMPENSATION AND EXPENSES. 19 a. For the services delineated above, the CITY, upon presentation of an invoice, shall 20 pay the VENDOR up to the amount of$34,537.68 for each Chevrolet Tahoe wagon 9 21 22 and to provide and perform those products and services described in Section 1 23 above. Total amount not-to-exceed $207,226.08 for all six (6) Chevrolet Tahoe g� 24 wagons. 25 b. No other expenditures made by VENDOR shall be reimbursed by CITY. i - 26 3. TERM. 1 © 27 The term of this agreement shall be for a period of one (1)year. i 28 -1- This Agreement may be terminated at any time by thirty (30) days prior written notice by either party. The terms of this Agreement shall remain in force unless amended by written 2 agreement of the parties executed on or before date of expiration of current term of the 3 agreement. 4 5 4. INDEMNITV. 6 Vendor agrees to and shall indemnify and hold the City, its elected officials, employees, 7 agents or representatives, free and harmless from all claims, actions, damages and liabilities of 8 any kind and nature arising from bodily injury, including death, or property damage, based or 9 asserted upon any or alleged act or omission of Vendor, its employees, agents, or 10 11 subcontractors, relating to or in any way connected with the accomplishment of the work or 12 performance of service under this Agreement, unless the bodily injury or property damage was 13 actually caused by the sole negligence of the City, its elected officials, employees, agents or 14 representatives. As part of the foregoing indemnity, Vendor agrees to protect and defend at its 15 own expense, including attorney's fees the City, its elected officials, employees, agents or 16 representatives from any and all legal actions based upon such actual or alleged acts or 17 18 omissions. Vendor hereby waives any and all rights to any types of express or implied 19 indemnity against the City, its elected officials, employees, agents or representatives, with 20 respect to third party claims against the Vendor relating to or in any way connected with the 21 accomplishment of the work or performance of services under this Agreement. 22 5. INSURANCE. 23 While not restricting or limiting the foregoing, during the term of this Agreement, 24 VENDOR shall maintain in effect policies of comprehensive public, general and automobile 25 liability insurance, in the amount of $1,000,000.00 combined single limit, and statutory 26 27 worker's compensation coverage, and shall file copies of said policies with the CITY's Risk 28 -2- Manager prior to undertaking any work under this Agreement. CITY shall be set forth as an 1 additional named insured in each policy of insurance provided hereunder. The Certificate of 2 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 6. NON-DISCRIMINATION. 7 In the performance of this Agreement and in the hiring and recruitment of employees, s VENDOR shall not engage in, nor permit its officers, employees or agents to engage in, 9 discrimination in employment of persons because of their race, religion, color, national origin, 10 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 7. INDEPENDENT CONTRACTOR 15 VENDOR shall perform work tasks provided by this Agreement, but for all intents and 16 purposes VENDOR shall be an independent contractor and not an agent or employee of the 17 18 CITY. VENDOR shall secure, at its expense, and be responsible for any and all payment of 19 Income Tax, Social Security, State Disability Insurance Compensation, Unemployment 20 Compensation, and other payroll deductions for VENDOR and its officers, agents, and 21 employees, and all business licenses, if any are required, in connection with the services to be 22 performed hereunder. 23 8. BUSINESS REGISTRATION CERTIFICATE AND OTHER REQUIREMENTS. 24 VENDOR warrants that it possesses or shall obtain, and maintain a business registration 25 26 certificate pursuant to Chapter 5 of the Municipal Code, and any other license, permits, 27 28 -3- qualifications, insurance and approval of whatever nature that are legally required of VENDOR 1 to practice its business or profession. 2 3 9. NOTICES. 4 Any notices to be given pursuant to this Agreement shall be deposited with the United 5 States Postal Service, postage prepaid and addressed as follows: 6 TO THE CITY: Public Services Director 300 North"D" Street 7 San Bernardino, CA 92418 8 Telephone: (909) 384-5140 g TO THE VENDOR: Crest Chevrolet 909 W 21" St. 10 San Bernardino, CA 92405 11 Telephone: (909) 883-8833 Attn: Dan Zank 12 10. ATTORNEYS' FEES 13 14 In the event that litigation is brought by any party in connection with this Agreement, 15 the prevailing party shall be entitled to recover from the opposing party all costs and expenses, 16 including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of 17 its rights or remedies hereunder or the enforcement of any of the terms, conditions or 18 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. 21 22 11. ASSIGNMENT. 23 VENDOR shall not voluntarily or by operation. of law assign, transfer, sublet or 24 encumber all or any part of the VENDOR's interest in this Agreement without CITY's prior 25 written consent. Any attempted assignment, transfer, subletting or encumbrance shall be void 26 and shall constitute a breach of this Agreement and cause for the termination of this 27 \.. Agreement. Regardless of CITY's consent,no subletting or assignment shall release VENDOR 28 -4- of VENDOR's obligation to perform all other obligations to be performed by VENDOR �✓ 1 hereunder for the term of this Agreement. 2 12. VENUE. 3 4 The parties hereto agree that all actions or proceedings arising in connection with this 5 Agreement shall be tried and litigated either in the State courts located in the County of San 6 Bernardino, State of California or the U.S. District Court for the Central District of California, 7 Riverside Division. The aforementioned choice of venue is intended by the parties to be the 8 mandatory and not permissive in nature. 9 13. GOVERNING LAW. 10 11 This Agreement shall be governed by the laws of the State of California. 12 14. SUCCESSORS AND ASSIGNS. 13 This Agreement shall be binding on and inure to the benefit of the parties to this 14 Agreement and their respective heirs, representatives, successors, and assigns. 15 15. HEADINGS. 16 The subject headings of the sections of this Agreement are included for the purposes of 17 18 convenience only and shall not affect the construction or the interpretation of any of its 19 provisions. 20 16. ENTIRE AGREEMENT; MODIFICATION. 21 This Agreement constitutes the entire agreement and the understanding between the 22 parties, and supercedes any prior agreements and understandings relating to the subject manner 23 of this Agreement. This Agreement may be modified or amended only by a written instrument 24 executed by all parties to this Agreement. 25 26 27 28 -5- i VENDOR SERVICE AGREEMENT 1 CREST CHEVROLET 2 3 IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day 4 and date set forth below. 5 Dated: , 2010 Crest Chevrolet 6 By: 7 8 Dated 2010 CITY OF SAN BERNARDINO 9 By: 10 Charles E. McNeely, City Manager 11 Approved as to Form: 12 By: � ' es F. Penman, City Attorney 13 C 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6- I APR-21-2010 WED 03:09 PM CREST CHEVROLET FAX N0, 9098837968 P. 02 i Prepared By: administrator crest Chevrolet inc 14,--r. 909 w 21 st C san bemardino,CA 92405 -3,9Lk Oi-3 Phone: (909)U3-8833 Fax (909)882-111 Email: danzank@crestchevy.GOm 2010 Fleet/Non-Retail Chevrolet Tahoe 2WD 4dr 1500 Police CC 10706 WINDOW STICKER 2010 Chevrolet Tahoe 2WD 4dr 1500 Police Interior. - No color has been selected. 5,31_1323 CID GaslEthanol VB Exterior 1: - No Color has been selected. •OSpeed Automatic w/OD - Exist"Z - No color has been selected. CODE MODEL MSRP CC10706 2010 Chevrolet Tahoe 2WD 4dr 1500 Police $37,280.00 OPTIONS PPV IDFNTIFIER FOR POLICE VEHICLE x'00 VPV SHIP THRU TO KERR INDUSTRIES $0.00 YF5 EMISSIONS,CALIFORNIA STATE REQUIREMENTS $0.00 LMG ENGINE,VORTEC 5.3L V8 SFI FLEXFUEL _ $0.00 MYC TRANSMISSION,"PEED AUTOMATIC, ELECTRONICALLY CONTROLLED $0.00 GU4 REAR AXLE,3.06 RATIO $0.00 1FL POLICE PREFERRED EQUIPMENT GROUP $5.025.00 ZY1 SOLID PAINT $0.00 41U BLACK $0'w A95 SEATS.FRONT BUCKET WITH PREMIUM CLOTH,6-WAY POWER DRIVER $0.00 19C EBONY,PREMIUM CLOTH SEAT TRIM $0.00 LISS AUDIO SYSTEM,AM/FM STEREO WITH MP3 COMPATIBLE CO PLAYER $0.00 G50 DIFFERENTIAL,HEAVY-DUTY LOCKING REAR $295.00 6A6 BATTERIES,DUAL HEAVY-DUTY 730 COLD-CRANKING AMPS $115.00 6E2 KEY COMMON,COMPLETE VEHICLE FLEET- $25.00 7X7 SPOYLAMPS,LEFT-AND RIGHT-HAND $820.00 WX7 WIRING,AUXILIARY SPEAKER $55"00 SJ3 WIRING,GRILLE LAMPS AND SIREN SPEAKERS $102.00 6.14 WIRING,HORN AND SIREN CIRCUIT $36.00 6N5 SWITCHES,REAR WINDOW INOPERATIVE $66'00 Report Content is based on current data version referenced. Any performance-related Calculations are offered solely as guidelines. Actual unit performance will depend on your operating Conditions. GM AutoBook, Data Version: 160.0,Date updated 411312010 9:41:00 AM QCopynght 19862005 Chrome Systems Corporation.All rights reserved. Customer File: page 1 °% " " April 16, 2010 11:48:15 AM I , APR-21-2010 WED 03:10 PM CREST CHEVROLET FAX NO, 9098837968 P. 03 Prepared By: administrator crest Chevrolet inc i 909 w 21 st san bemardino,CA 92405 r Phone: (909)883-0833 Fax (909)8524623 Email: danzank@crestchevy.com 2010 Fleet/Non-Retail Chevrolet Tahoe 2WQ 4dr 1500 Police CC10706 WINDOW STICKER 6E2 DOOR HANDLES, INSIDE REAR DOORS INOPERATIVE 6N6 DOOR LOCKS, INSIDE REAR DOORS INOPERATIVE $88.00 I AMF REMOTE KEYLESS ENTRY FLEET PACKAGE,PROGRAMMABLE $76.00 9G6 HEADLAMPS,DAYTIME RUNNING LAMPS AND AUTOMATIC HEADLAMP CON $1.00 '12 FLEET PROCESSING OPTION $0.00 SUBTOTAL $33,087.00 Adve /Ad s ustment $0.00 d Destination Charge 5950.00 TOTAL PRICE $34,017.00 rEst Est City. 15.00 mpg Highway:21.00 mpg Est Highv y Cruising Range:546,00 ml Report content is based on current data version referenced. Any performance-related calculations are offered solely as guidelines. Actual unit performance will depend on your operating conditions. GM Autobook, Data Version: 160.0,Date Updated 4/1312010 9:41:00 AM ®Copyright 1986-2005 Chrome Systems Corporation.All rights reserved. Customer File: Page 2 tV April 16, 201011:48:15 AM i j APR-21-2010 WED 03110 PH CREST CHEVROLET FAX NO. 9098837968 P. 04 4 [�) Prepared By. `✓ administrator - crest Chevrolet inc 909 w 21 st . san bemardino,CA 92405 j Phone: (909)883-8833 Fax (909)882-8623 Email: dan2ank@a"tchevy.c0m 2010 Fleet/Non-Retail Chevrolet Tahoe 2WD 4dr 1500 Police CC10706 PRICING SUMMARY PRICING SUMMARY-2010 Fleet/Non-Retail OCID705 2WO 4dr 1500 Police Q2 MSRP Base Pnoe $33,552.D0 $37,280.00 Total Options: -$2,818.06 $3,313.00 Vehicle Subtotal $30,735.95 $33,967-00 Advert/Adjustments $0.01) $0.00 Destination Charge $950.00—., $950.00 GRAND TOTAL $31,655A5 $34,917A6 t Report content Is based on current data version referenced. Any performance-related calculations are offered solely as guidelines. Actual unit performance will depend on your operating conditions-, GM AutaBODk, Data Version: 180.0. Data updated 4113!2010 9:41:00 AM CGopydght 1986-2005 Chrome Systems Corporation.All rights reserved. Customer File: Page 3 r � APri118, 201011:46:15 AM APR-21-2010 WED 03:09 PM CREST CHEVROLET FAX NO.. 9098837968 P. 01 �- � �v .AWARD W i.'N'NER. DANNY G. ZANY Fleet Sales Consultant CREST UIEtiVROLET 909 W 21 ST ST Phone•(909) 8,83-8833 Ext 453 SAN BERNARDINO, CA 92405 Fax (909) .882-8623' E^ DATE �fj�Zc�lb # Pages transnvtte6 FROM: RE 20/0 -,/a r COMMENTS: .(oo &s A-C& 4qS DA1C Q1--Z)w.'J G v :20 'P4,Cc /^OJT /(erlcC(C i Exhibit "C" MASTER EQUIPMENT LEASE/PURCHASE AGREEMENT This Master Equipment Lease/Purchase Agreement No. 2114500-06000 (the "Agreement's dated as of May 10, 2010, and entered into between Bank of America; National Association, a national banking association ("Lessor'), and City of San Bernardino, a body corporate and politic existing under the laws of the State of California(`Lessee'). WITNESSETH: WHEREAS, Lessee desires to lease and acquire from Lessor certain Equipment described in each Schedule (as each such tens is defined herein), subject to the terms and conditions of and for the purposes set forth in each Lease, and in the event of a conflict the terms of a Schedule prevail; and WHEREAS, the relationship between the parties shall be a continuing one and 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; and WHEREAS, Lessee is authorized under the constitution and laws of the State to enter into this Agreement and the Schedules hereto for the purposes set forth herein; NOW, THEREFORE, for good and valuable consideration, receipt of which is hereby acknowledged, and in consideration of the premises hereinafter contained, the parties hereby agree as follows: ARTICLE I Section 1.01. Definitions. The following teams will have the meanings indicated below unless the context clearly requires otherwise: "Acquisition Amount" means the amount specified in each Lease and represented by Lessee to be sufficient to acquire the Equipment listed in such Lease. "Acquisition Fund" means, with respect to any Lease, the fund established and held by the Acquisition Fund Custodian pursuant to the related Acquisition Fund Agreement, if any. "Acquisition Fund Agreement" means, with respect to any Lease, an Acquisition Fund and Account Control Agreement, substantially in the form of Exhibit A attached hereto, in form and substance acceptable to and executed by Lessee, Lessor and the Acquisition Fund Custodian, pursuant to which an Acquisition Fund is established and administered. "Acquisition Fund Custodian" means the Acquisition Fund Custodian identified in any Acquisition Fund Agreement, and its successors and assigns. #765674vl (BAPCC/CA Abatement Lease Template) 1 ICA Abatement] "Acquisition Period" means, with respect to each Lease, that period stated in the Schedule to such Lease during which the Lease Proceeds attributable to such Lease may be expended on Equipment Costs. "Agreement" means this Master Equipment Lease/Purchase Agreement, including the exhibits hereto, together with any amendments and modifications to the Agreement pursuant to Section 13.05. "Code" means the Internal Revenue Code of 1986, as amended. Each reference to a Section of the Code herein shall be deemed to include the United States Treasury Regulations proposed or in effect thereunder. "Commencement Date"means, for each Lease, the date when Lessee's obligation to pay rent commences 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 5.01, and (ii)the date on which sufficient moneys to purchase the Equipment listed in such Lease are deposited for that purpose with an Acquisition Fund Custodian. "Contract Rate"means the rate identified as such in the applicable Schedule. "Equipment" means the property listed in each of the Leases and all replacements, repairs, restorations, modifications and improvements thereof or thereto made pursuant to Section 8.01 or Article V. Whenever reference is made in this Agreement to Equipment listed in a Lease, such reference shall be deemed to include all such replacements, repairs, restorations, modifications and improvements of or to such Equipment. "Equipment Costs"means the total cost of the Equipment listed in each Lease, including soft costs such as freight, installation and taxes paid up front by Lessor and all capitalizable consulting and training fees approved by Lessor, legal fees, financing costs, and other costs necessary to vest full, clear legal title to the Equipment in Lessee, subject to the security interest granted to and retained by Lessor as set froth in each Lease, and otherwise incurred in connection with the financing provided by the lease-purchase of the Equipment as provided in each Lease; provided that (i) any such soft costs on a cumulative basis shall not exceed a percentage of the Maximum Equipment Cost approved by Lessor and (ii) in no event shall capitalizable delivery charges, installation charges, taxes and similar capitalizable soft costs relating to such Equipment be included without Lessor's prior consent "Event of Default"means an Event of Default described in Section 12.01 "Lease" means a Schedule and the terms of this Agreement which are incorporated by reference into such Schedule. Each Schedule shall constitute a separate and independent Lease. "Lease Proceeds" means, with respect to each Lease, the total amount of money to be paid by Lessor to Vendor. "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.. #765674v1 (BAPCC/CA Abatement Lease Template) 2 "Lessee"means the entity referred to as Lessee in the first paragraph of this Agreement. "Lessor" means (a)the entity referred to as Lessor in the first paragraph of this Agree- ment or (b) any assignee or transferee of any right, title or interest of Lessor in and to the Equipment under a Lease or any Lease (including Rental Payments thereunder) pursuant to Section 11.01, but does not include any entity solely by reason of that entity retaining or assuming any obligation of Lessor to perform under a Lease. "Material Adverse Change" means (prior to the Utilization Period Expiration, a downgrade in Lessee's external debt rating of two or more subgrades by either Moody's Investors Service, Inc., or Standard & Poor's Ratings Group or any equivalent successor credit rating agency, or any downgrade by either such agency that would cause Lessee's credit rating to be below investment grade, and (be) thereafter, any change in Lessee's creditworthiness that could have a material adverse effect on (i) the financial condition or operation of Lessee [and its subsidiaries taken as a whole], or (ii) Lessee's ability to perform its obligations under this Agreement or any Lease. "Maximum Equipment Cost" means the cumulative amount specified in the latest Schedule executed under this Agreement. "Original Term- means the period from the Commencement Date for each Lease until the end of the fiscal year of Lessee in effect at such Commencement Date. "Purchase Price" means, Aith respect to the Equipment listed on a Lease, the amount that Lessee may pay to Lessor to purchase such Equipment as provided in such Lease. "Renewal Terms"means the renewal terms of each Lease, each having a duration of one year and a term coextensive with Lessee's fiscal year, as specified in the Schedule applicable thereto, "Rental Payments-means the basic rental payments payable by Lessee under each Lease pursuant to Section 4.01, in each case consisting of a principal component and an interest component. "Schedule" means each separately numbered Schedule of Property substantially in the form of Schedule of Property No. 3 hereto together with a Rental Payment Schedule attached thereto substantially in the form of Exhibit A-1 hereto. "State"means the State of California. "Utilization Period" means the date, with respect to each Lease not funded under an Acquisition Fund Agreement, by which Lessee must deliver an Acceptance Certificate for the Equipment under such Lease as indicated in Section 3.04(b). "Vendor" means the manufacturer or supplier of the Equipment or any other person as well as the agents or dealers of the manufacturer or supplier from whom Lessor arranged Lessee's acquisition and financing of the Equipment pursuant to the applicable Lease. #765674vl (BAPCC/CAAbat==tL�eT=pIate) 3 ARTICLE H _ Section 2.01. 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 state or a political subdivision thereof within the meaning of Section 103(c) of the Code, duly organized and existing under the constitution and laws of the State with full power and authority 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, regularly convened and attended throughout by the requisite quorum of the members thereof, or by other appropriate official approval, and all requirements have been met and procedures have occurred in order to ensure the validity and enforceability of this Agreement and each Lease. (c) No event or condition that constitutes, or with the giving of notice or the lapse of time or both would constitute, an Event of Default exists at the date hereof. (d) Lessee will do or cause to be done all things necessary to preserve and keep in full force and effect its existence as a body corporate and politic. (e) 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. (f) During the Lease Term, the Equipment will be used by Lessee only for the purpose of performing essential governmental or proprietary functions of Lessee consistent with the permissible scope of Lessee's authority. Lessee does not intend to sell or otherwise dispose of the Equipment or any interest therein prior to the last Rental Payment (including all Renewal Terms) scheduled to be paid under each Lease. (g) Lessee has kept and throughout the Lease Term of any Lease shall keep, its books and records in accordance with generally accepted accounting principles and practices consistently applied, and shall deliver to Lessor(i) annual audited financial statements (including (1) a balance sheet, (2) statement of revenues, expenses and changes in fund balances for budget and actual, (3) statement of cash flows and notes, and (4) schedules and attachments to the financial statements) within 180 days of its fiscal end, (ii) such other financial statements and information as Lessor may reasonably request, and (iii) its annual budget for the following fiscal year when approved but not later than 30 days prior to its current fiscal year end. The financial statements described in subsection (i) shall be accompanied by an unqualified opinion of Lessees's auditor. Credit information relating tot Lessee may be disseminated among Lessor and any of its affiliates and any of their respective successors and assign. (h) 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. Lessee's need for the #765674vl (BAPMCA Abatement Lease Template) 4 © Equipment is not temporary and Lessee does not expect the need for any item of the Equipment to diminish during the Lease Term to such item. (i) The payment of the Rental Payments or any portion thereof is not(under the terms of any Lease or any underlying arrangement) directly or indirectly(x) secured by any interest in property used or to be used in any activity carried on by any person other than a state or local governmental unit or payment in respect of such property; or (y) on a present value basis, derived S P Ym sP from payments whether or not to Lessee in respect of property, or borrowed money, used or to P Ym (whether P Pert3' be used in an activity carried on b an person other than a state or local governmental unit. Y tY Y Y P S The Equipment will not be used, directly or indirectly, in any activity carried on by any person other than a state or local governmental unit. No portion of the Equipment Cost for the Equipment will be used,directly or indirectly, to make or finance loans to any person other than Lessee. Lessee has not entered into any management or other service contract with respect to the use and operation of the Equipment. (j) There is no pending litigation, tax claim,proceeding or dispute that may adversely affect Lessee's financial condition or impairs its ability to perform its obligation hereunder. Lessee will, at its expense, maintain its legal existence in good standing and do any further act and execute, acknowledge, deliver, file, register and record any further documents Lessor may reasonably request in order to protect Lessor's security interest in the Equipment and Lessor's rights and benefits under this Lease. --- ARTICLE III 'ar Section 3.01. Lease of Equipment. Subject to the terms of this Master Lease, Lessor agrees to provide the funds specified in each Lease to be provided by it to acquire the Equipment, up to an amount equal to the Maximum Equipment Cost. Upon the execution of each Lease, Lessor demises, leases, transfers and lets to Lessee, and Lessee acquires, rents and leases from Lessor, the Equipment as set forth in such Lease and 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 Term for the next succeeding Renewal Term up to the maximum Lease Term set forth in such Lease. At the end of the Original Term and at the end of each Renewal Term until the maximum Lease Term has been completed, Lessee shall be deemed to have exercised its option to continue each Lease for the next Renewal Term unless Lessee shall have terminated such Lease pursuant to Section 3.03 or Section 10.01. The terms 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. Section 3.02. Continuation of Lease Term. Lessee intends, subject to Section 3.03, to continue the Lease Term of each Lease and to pay the Original Term and all Renewal Terms and to pay the Rental Payments thereunder. Lessee affirms that sufficient funds are available for the current fiscal year, and Lessee reasonably believes that an amount sufficient to make all Rental Payments during the entire Lease Term of each Lease can be obtained from legally available funds of Lessee. Lessee further intends to do all things lawfully within its power to obtain and maintain funds sufficient and available to discharge its obligation to make Rental Payments due hereunder, 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, #765674vl (BAPCGCA Abatem=t lxase T=plate) 5 to have such portion of the budget or appropriation request approved and to exhaust all available reviews and appeals in the event such portion of the budget or appropriation request is not approved. Section 3.03. Abatement. During any period in which, by reason of material damage or destruction or taking under the power of eminent domain(or sale to any entity threatening the use of such power) or material title defect with respect to any Equipment, there is substantial interference with the use and possession by Lessee of such Equipment,the rent applicable to such Equipment shall be abated proportionately in whole or in part. Lessee shall immediately notify Lessor upon the occurrence of any event causing substantial interference with Lessee's use and possession of any Equipment, and such notice shall be provided prior to the abatement of any rent. The amount of abatement shall be such that the remaining rental obligation for each rental period represents fair consideration for the use and possession of the portions of the Equipment that are not affected by such interference. Such abatement shall commence on the date that Lessee's use and possession of the affected Equipment is restricted because of such interference and end on the earlier of (i) the date on which the use and possession thereof are restored to Lessee, or (ii) the date on which Lessee either(x)replaces the affected Equipment or(y)uses the proceeds of insurance or condemnation award to pay the applicable Purchase Price therefor. Notwithstanding any such interference with Lessee's use and possession of a portion of the Equipment, this Lease shall continue in full force and effect with respect to any remaining Equipment. Lessee waives the benefits of Civil Code Sections 1932 and any and all other rights to terminate this Lease by virtue of any interference with the use and possession of any Equipment. Section 3.04. Conditions to Lessor's Performance. (a) As a prerequisite to the performance by Lessor of any of its obligations pursuant to any Lease, Lessee shall deliver to Lessor the following: (i) A fully completed Schedule, executed by Lessee; (ii) An Acquisition Fund Agreement, executed by Lessee and the Acquisition Fund Custodian, unless Lessor pays 100% of the Acquisition Amount directly to the Vendor upon execution of the Lease; (iii) A Certificate executed by the Clerk or Secretary or other comparable officer of Lessee, in substantially the form attached hereto as Exhibit C, completed to the satisfaction of Lessor; (iv) A certified copy of a resolution, ordinance or other official action of Lessee's governing body authorizing the execution and delivery of this Lease and performance by Lessee of its obligations hereunder; (v) An opinion of counsel to Lessee in substantially the form attached hereto as Exhibit D respecting such Lease and otherwise satisfactory to Lessor; (vi) Evidence of insurance as required by Section 7.02 hereof, #765674A (BAPCC/CA Abatement Lease Template) 6 (vii) All documents, including financing statements, affidavits, notices and similar instruments, in form satisfactory to Lessor, which Lessor deems necessary or appropriate at that time pursuant to Section 6.02; (viii) A copy of a fully completed and executed Form 8038; (ix) If any Equipment units are motor vehicles, properly competed certificates of title for such vehicles; and (x) Such other items, if any, as are set forth in such Lease or are reasonably required by Lessor. (b) In addition, the performance by Lessor of any of its obligations pursuant to any Lease shall be subject to: (i) no material adverse change in the financial condition of Lessee since the date of this Lease, (ii) no Event of Default having occurred, and (iii) if no Acquisition Fund hag been established, the Equipment must be accepted by Lessee no later than date listed as the Utilization Period Expiration in the applicable Schedule. (c) Subject to satisfaction of the foregoing, Lessor will pay the Acquisition Amount for Equipment described in a Schedule to the Vendor or, if authorized by Lessee's governing body,will reimburse Lessee for the prior payment of any such Acquisition Amounts by Lessee to the Vendor, upon receipt of the documents described in Sections 5.01(a) and (b); or if an Acquisition Fund has been established pursuant to an Acquisition Fund Agreement, Lessor will deposit the Acquisition Amount for Equipment described in the Schedule with the Acquisition Fund Custodian. (d) 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. (e) Lessee will cooperate with Lessor in Lessor's review of any proposed Lease. Without limiting the foregoing, Lessee will 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. ARTICLE IV Section 4.01. Rental Payments. Subject to Section 3.03, Lessee shall promptly pay Rental Payments, in lawful money of the United States of America, 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 equal to the Contract Rate plus 5% per annum or the maximum amount permitted by law, whichever is less, from such date. Lessee shall not permit the federal government to guarantee any Rental Payments under any Lease. Rental Payments consist of principal and interest payments as more fully detailed on each #765674vt (BAPCGCAAbatem=tLease Template) 7 Schedule, the interest on which begins to accrue as of the Commencement Date for each such Schedule. Section 4.02. Interest and Principal Components. A portion of each Rental Payment is paid as, and represents payment of, interest, and the Balance of each Rental Payment is paid as, and represents payment of, principal. Each Lease shall set forth the principal and interest components of each Rental Payment payable thereunder during the Lease Term. Section 4.03. Rental Payments to Constitute a Current Expense of Lessee. 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 payable solely from its general fund or other funds that are legally available for that purpose and shall not in any way be construed to be a debt of Lessee in contravention of any applicable constitutional or statutory limitation or requirement concerning the creation of indebtedness by Lessee, nor shall anything contained herein or in a Lease constitute a pledge of the general tax revenues, funds or moneys of Lessee. Section 4.04. Rental Payments to be Unconditional. Except as provided in Section 3.03, 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, after it has been accepted by lessee, any defects, malfunctions, breakdowns or infirmities in the equipment or any accident, condemnation or unforeseen circumstances. Lessee's obligations to make Rental Payments or pay other amounts hereunder shall not be abated on account of obsolescence or failure of the Equipment to perform as desired. Section 4.05. Tar Covenant. Lessee agrees that it will not take any action that would cause the interest component of Rental Payments to be or to become ineligible for the exclusion from gross income of the owner or owners thereof for federal income tax purposes, nor will it omit to take or cause to be taken, in timely manner, any action, which omission would cause the interest component of Rental Payments to be or to become ineligible for the exclusion from gross income of the owner or owners thereof for federal income tax purposes. Section 4.06. Event of Taxability. Upon the occurrence of an Event of Taxability, the interest component shall be at a Taxable Rate retroactive to the date as of which the interest component is determined by the Internal Revenue Service to be includible in the gross income of the owner or owners thereof for federal income tax purposes, and Lessee will pay such additional amount as will result in the owner receiving the interest component at the Taxable Rate identified in the related Lease. For purposes of this Section, "Event of Taxability" means a determination that the interest component is includible for federal income tax purposes in the gross income of the owner thereof due to Lessee's action or failure to take any action. Section 4.07. Mandatory Prepayment. If the Lease Proceeds are deposited into an Acquisition Fund, any funds remaining in the Acquisition Fund on or after the Acquisition Period and not applied to Equipment Costs, shall be applied, in Lessor's discretion based upon the amount remaining in such Fund, on the next Rental Payment date to either: (i) all or a portion #765674vl (BAPCC/CA Abatement Ls a Template) 9 of the next Rental Payment and if such amount is in excess of the next Rental Payment then, any remaining balance shall be applied to all or a portion of the next succeeding Rental Payments until fully applied; or (ii) as prepayment to the remaining principal balance owing under the Schedule in the inverse order of maturity. ARTICLE V Section 5.01. Delivery, Installation and Acceptance of Equipment. (a) Lessee shall order the Equipment, cause the Equipment to be delivered and installed at the location specified in the Leases and pay any and all delivery and installation costs and other Equipment Costs in connection therewith. When the Equipment listed in any Lease has been delivered and installed, Lessee shall promptly accept such Equipment and evidence said acceptance by executing and delivering to Lessor an acceptance certificate in the form attached hereto as Exhibit E. (b) Lessee shall deliver to Lessor original invoices and bills of sale (if title to such Equipment has passed to Lessee) relating to each item of Equipment accepted by Lessee. With respect to Equipment not purchased through an Acquisition Fund, Lessor shall, upon receipt of an Acceptance Certificate from Lessee, prepare a Schedule of Property and Rental Payment Schedule in the forms attached hereto as Exhibits B-1 and B-2. Lessee shall execute and deliver such Schedules to Lessor within 5 business days of receipt. Section 5.02. Quiet Enjoyment of Equipment. So long as Lessee is not in default under the related Lease, neither Lessor nor any entity claiming by, through or under Lessor, shall interfere with Lessee's quiet use and enjoyment of the Equipment during the Lease Term. Section 5.03. Location; Inspection. Once installed, no item of the Equipment will be relocated from the base 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. Section 5.04. Use and Maintenance of the Equipment. 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; provided that Lessee may contest in good faith the validity or application of any such law, regulation or ruling in any reasonable manner that does not, in the opinion of Lessor, adversely affect the interest (including the reversionary interest) of Lessor in and to the Equipment or its interest or rights under the Lease. Lessee agrees that it will maintain, preserve, and keep the Equipment in good repair and working order, in a condition comparable to that recommended by the manufacturer. Lessor shall have no responsibility to maintain, repair or make improvements or additions to the Equipment. In all cases, Lessee agrees to pay any costs necessary for the manufacturer to rectify #765674vl (BAPCCICA Abatement Lease Template) 9 �-+ the Equipment as eligible for manufacturer's maintenance upon the return of the Equipment to f� Lessor as provided for herein. Lessee shall not alter any item of Equipment or install any accessory, equipment or device on an item of Equipment if that would impair any applicable warranty, the originally intended function or the value of that Equipment. All repairs, parts, accessories, equipment and devices famished, affixed to or installed on any Equipment, excluding temporary replacements, shall thereupon become subject to the interest of Lessor therein. ARTICLE VI Section 6.01. Title to the Equipment. During each Lease Term, and so long as Lessee is not in default under Article)M hereof, all right, title and interest in and to each item of the Equipment shall be vested in Lessee immediately upon its acceptance of each item of Equipment, subject to the terms and conditions of the applicable Lease. Lessee shall at all times protect and defend, at its own cost and expense, its title in and to the Equipment from and against all claims, liens, and legal processes of its creditors, and keep all Equipment free and clear of all such claims, liens, and processes. Upon the occurrence of an Event of Default or upon termination of a Lease pursuant to Section 3.03 hereof, full and unencumbered legal title to the Equipment shall pass to Lessor, and Lessee shall have no further interest therein. hi addition, upon the occurrence of such an Event of Default or such termination, Lessee shall execute and deliver to Lessor such documents as Lessor may request to evidence the passage of such legal title to Lessor and the termination of Lessee's interest therein, and upon request by Lessor shall deliver possession of the Equipment to Lessor in accordance with Section 12.02. Upon purchase of the Equipment under a Lease by Lessee pursuant to Section 10.01, Lessor's security interest or other interest in the Equipment shall terminate, and Lessor shall execute and deliver to Lessee such documents as Lessee may request to evidence the termination of Lessor's security interest in the Equipment subject to the related Lease. Section 6.02. Security Interest. To secure the payment of all of Lesssee's obligations under each Lease, upon the execution of such Lease, Lessee grants to Lessor a security interest constituting a first lien on (a) the Equipment applicable to such Lease, (b) moneys and investments held from time to time in the Acquisition Fund and(c) any and all proceeds of any of the foregoing. Lessee agrees to execute and authorizes Lessor to file such notices of assignment, chattel mortgages, financing statements and other documents, in form satisfactory to Lessor, which Lessor deems necessary or appropriate to establish and maintain Lessor's security interest in the Equipment,the Acquisition Fund and the proceeds thereof. Section 6.03. Personal Property. 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 notwithstanding that the Equipment or any part thereof may be or hereafter become in any manner physically affixed or attached to real estate or any building thereon. Upon the request of Lessor, Lessee will, at Lessee's expense, furnish a waiver of any interest in the Equipment from any party having an interest in any such real estate or building. 1^ #765674vl (BAPCC/CA Abatement Lease Template) 10 ARTICLE VII E`✓ Section 7.01. Liens, Taxes, Other Governmental Charges and Utility Charges. 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 a governmental or proprietary purpose 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; provided that, with respect to any such taxes or charges that may lawfully be paid in installments over a period of years, Lessee shall be obligated to pay only such installments as accrue during each Lease Term. Section 7.02. Insurance. Lessee covenants that it is an authorized self-insured public entity for purposes of general liability, automobile liability, worker's compensation and property coverage including but not limited to rental interruption coverage in an amount which shall cover Rental Payments for no less than 24 months in the event Lessee exercises it rights to abate any Rental Payments or portions thereof pursuant to Section 3.03 of the Agreement and warrants that through its program of self-insurance, it has adequate coverage or resources to protect against liabilities arising out of the terms, conditions and obligations of this Agreement. Lessee shall furnish to Lessor evidence of such self-insurance coverage through each Lease Term. Lessee shall not cancel or modify such self-insurance coverage in any way that would affect the interests of Lessor without first giving written notice thereof to Lessor at least 30 days in advance of such cancelled or modification. Section 7.03 Risk of Loss. Subject to Section 3.03, whether or not covered by insurance of self-insurance, Lessee hereby assumes all risk of loss of, or damage to and liability related to injury or damage to any person or property arising from the Equipment from any cause whatsoever, and no such loss of or damage to or liability arising from the Equipment shall relieve Lessee of the obligation to make the Rental Payments or to perform any other obligation under this Lease. Whether or not covered by insurance or self-insurance, Lessee hereby agrees to reimburse Lessor (to the fullest extent permitted by applicable law, but only from legally available funds) for any and all liabilities, obligations, losses, costs, claims, taxes or damages suffered or incurred by Lessor, regardless of the cause thereof and all expenses incurred in connection therewith (including without limitation, counsel fees and expenses, and penalties connected therewith imposed on interest receive) arising out of or as s result of(a) entering into of this Agreement or any of the transactions contemplated hereby, (b) the ordering, acquisition, ownership use, operation, conditions, purchase, delivery, acceptance, rejection, storage or return of any item the Equipment, (c) any accident in connection with the operation, use, condition, possession, storage or return of any item of the Equipment resulting in damage to property or injury to or death to any person, and/or (d) the breach of any covenant of Lessee in connection with a Lease or any material misrepresentation provided by Lessee in connection with a Lease. The provisions of this paragraph 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 Lease for �► any reason. #765674A (BAPCC/CA Abatement Lease Template) 11 i Section 7.04. 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 covenants and agrees to pay such amounts so advanced by Lessor with interest thereon from the due date until paid at a rate equal to the Contract Rate plus 5% per annum or the maximum amount permitted by law,whichever is less.. ARTICLE VIII Section 8.01. Damage, Destruction and Condemnation. Unless Lessee shall have exercised its option to purchase the Equipment by making payment of the Purchase Price as provided in the related Lease, if, prior to the termination of the applicable Lease Term, (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 will cause the Net Proceeds of any insurance claim or condemnation award or sale under threat of condemnation to be applied to the prompt replacement, repair, restoration, modification or improvement of the Equipment. Any balance of the Net Proceeds remaining after such work has been completed shall be paid to Lessee. If Lessee elects to replace any item of the Equipment (the "Replaced Equipment") pursuant to this Section, the replacement equipment (the "Replacement Equipment') shall be of similar type, utility and condition to the Replaced Equipment and shall be of equal or greater value than the Replaced Equipment. Lessor shall receive a first priority security interest in any such Replacement Equipment. Lessee shall represent, warrant and covenant to Lessor that each item of Replacement Equipment is free and clear of all claims, liens, security interests and encumbrances, excepting only those liens created by or through Lessor, and shall provide to Lessor any and all documents as Lessor may reasonably request in connection with the replacement, including, but not limited to, documentation in form and substance satisfactory to Lessor evidencing Lessor's security interest in the Replacement Equipment. Lessor and Lessee hereby acknowledge and agree that any Replacement Equipment acquired pursuant to this paragraph shall constitute "Equipment" for purposes of this Agreement and the related Lease. Lessee shall complete the documentation of Replacement Equipment on or before the next Rent Payment date after the occurrence of a casualty event, or be required to exercise the Purchase Option with respect to the damaged equipment. For purposes of this Article, the term "Net Proceeds" shall mean the amount remaining from the gross proceeds of any insurance claim or condemnation award or sale under threat of condemnation after deducting all expenses, including attorneys' fees, incurred in the collection thereof. © Section 8.02. Insufficiency of Net Proceeds. If the Net Proceeds are insufficient to pay in full the cost of any repair, restoration, modification or improvement referred to in Section 8.01, Lessee shall either (a) complete such replacement, repair, restoration, modification or #765674v1 (BAPCC/CA Abatement tease Template) 12 [� improvement and pay any costs thereof in excess of the amount of the Net Proceeds, or(b)pay or V cause to be paid to Lessor the amount of the then applicable Purchase Price for the Equipment, and, upon such payment, the applicable Lease Term shall terminate and Lessor's interest in the Equipment shall terminate as provided in Section 6.01 hereof The amount of the Net Proceeds, if any, remaining after completing such repair, restoration, modification or improvement or after purchasing such 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 Article IV. ARTICLE IX Section 9.01. 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 any other warranty or representation, express or implied, with respect thereto and, as to Lessor, Lessee's acquisition of the Equipment shall be on an "as is"basis. In no event shall Lessor be liable for any incidental,indirect, special or consequential damage in connection with or arising out of this Agreement, any Lease, the Equipment or the existence, famishing, functioning or Lessee's use of any item, product or service provided for in this Agreement Lease or any Lease. Section 9.02. Vendor's Warranties. Lessor hereby irrevocably appoints Lessee 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. 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 and 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 Lessor of the Equipment. ARTICLE X Section 10.01. Purchase Option. Lessee shall have the option to purchase all of the Equipment listed in a Lease, upon giving written notice to Lessor at least 30, but not more than 120, days before the date of purchase, at the following times and upon the following teens: (a) From and after the date specified in the related Schedule (the "Purchase Option Commencement Date"), 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, which may include a prepayment premium on the unpaid balance as set forth in the applicable Schedule; 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 #765674v1 (BAPCC1CAAbat=mtLease Template) 13 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; or (c) Upon the expiration of the Lease Term, upon payment in full of all Rental Payments then due and all other amounts then owing under the Lease, and the payment of$1.00 to Lessor. After payment of the applicable Purchase Price, Lessee will own the related Equipment, and Lessor's right,title and interests in and to such Equipment will be transferred and terminated in accordance with Section 6.01. ARTICLE XI Section 11.01. Assignment by Lessor. (a) Lessor's right, title and interest in and to Rental Payments and any other amounts payable by Lessee under any and all of the Leases, its security interest in the Equipment subject to each such Lease, and all proceeds therefrom may be assigned and reassigned in whole or in part to one or more assignees or subassignees by Lessor, without the necessity of obtaining the consent of Lessee;provided, that any such assignment, transfer or conveyance to a trustee for the benefit of owners of certificates of participation shall be made in a manner that conforms to any applicable State law. Nothing in this Section 11.01 shall be construed, however, to prevent �^ Lessor from executing any such assignment,transfer or conveyance that does not involve funding tom/ through the use of certificates of participation within the meaning of applicable State law, - including any such assignment, transfer or conveyance as part of a multiple asset pool to a partnership or trust;provided such certificates are sold only on a private placement basis (and not pursuant to any "public offering") to a purchaser(s) who represent that (i) such purchaser has sufficient knowledge and experience in financial and business matters to be able to evaluate the risks and merits of the investment, (ii) such purchaser understands neither the Lease nor certificates will be registered under the Securities Act of 1933, (iii) such purchaser is either an "accredited investor"within the meaning of Regulations D under the Securities Act of 1933, or a qualified institutional buyer within the meaning of Rule 144A, and I(iv) it is the intention of such purchaser to acquire such certificates (A) for investment for its own account or (B) for resale in a transaction exempt from registration under the Securities Act of 1933; provided further, that in any event, Lessee shall not be required to make Rental Payments, to send notices or to otherwise deal with respect to matters arising under a Lease with or to more than one individual on entity. (b) Unless to an affiliate controlling, controlled by or under common control with Lessor, no assignment, transfer or conveyance permitted by this Section 11.01 shall be effective until Lessee shall have received a written notice of assignment that discloses the name and address of each such assignee; provided, that if such assignment is made to a bank or trust company as trustee or paying agent for owners of certificates of participation, trust certificates or partnership interests with respect to the Rental Payment payable under a Lease, it shall thereafter be sufficient that Lessee receives notices of the name and address of the bank or trust company as trustree or paying agent. During each Lease Term, Lessee shall keep, or cause to be kept, a Ccomplete and accurate record of all such assignments in form necessary to comply with Sectopm 149 of the Code. Lessee shall retain all such notices as a register of all assignees and shall make #765674vl (BAPCGCA Abatement Lease Template) 14 all payments to the assignee or assignees designated in such register. 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 the Vendor. Assignments in part 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 under the Lease related to such Equipment. The option granted in this Section may be separately exercised from time to time with respect to the Equipment listed in each Lease, but such option does not permit the assignment of less than all of Lessor's interests in the Equipment listed in a single Lease. (c) If Lessor notifies Lessee of its intent to assign the Lease, Lessee agrees that it shall execute and deliver to Lessor a Notice and Acknowledgement of Assignment substantially in the form of Exhibit F attached to this Lease within five (5) business days after its receipt of such request. Section 11.02. Assignment and Subleasing by Lessee. None of Lessee's right, title, and interest in, to and under any Lease or any portion of the Equipment may be assigned or encum- bered by Lessee for any reason. ARTICLE XII Section 11.01. Events of Default Defined. 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 any Lease at the time specified herein; (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, unless Lessor shall agree in writing to an extension of such time prior to its expiration; provided that, if the failure stated in the notice cannot be corrected within the applicable period, Lessor will not unreasonably withhold its consent to an extension of such time if corrective action is instituted by Lessee within the applicable period and diligently pursued until the default is corrected; (c) Any statement, representation or warranty made by Lessee in or pursuant to any Lease or its execution, delivery or performance shall prove to have been false, incorrect, misleading, or breached in any material respect on the date when made; (d) Any default occurs under any other agreement with Bank of America,N.A. and its affiliates for borrowing money, lease financing of property or otherwise receiving credit under which Lessee is an obligor under which there is outstanding, owing or committed an aggregate amount of a least 10% of Lessee's aggregate current long- and short-term indebtedness, if such default consists of(i) the failure to pay any indebtedness when due or (ii) the failure to perform any other obligation thereunder and gives the holder of the indebtedness the right to accelerate the indebtedness; #765674vl (BAPCGCA Abatement Lease Template) 15 (e) Lessee shall (i) apply for or consent to the appointment of a receiver, trustee, custodian or liquidator of Lessee, or of all or a substantial part of the assets of Lessee, (ii)be unable, fail or admit in writing its inability generally to pay its debts as they become due, (iii)make a general assignment for the benefit of creditors, (iv)have an order for relief entered against it under applicable federal bankruptcy law, or (v) file a voluntary petition in bankruptcy or a petition or an answer seeking reorganization or an arrangement with creditors or taking advantage of any insolvency law or any answer admitting the material allegations of a petition filed against Lessee in any bankruptcy, reorganization or insolvency proceeding; or (f) An order, judgment or decree shall be entered by any court of competent jurisdiction, approving a petition or appointing a receiver, trustee, custodian or liquidator or Lessee or of all or a substantial part of the assets of Lessee, in each case without its application, approval or consent, and such order,judgment or decree shall continue unstayed and in effect for any period of 30 consecutive days. Section 12.02. 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 due; (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, but solely from legally available funds, for the difference between (i)the Rental Payments payable by Lessee pursuant to such Lease and other amounts related to such Lease or 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 3.03. The exercise of any such remedies respecting any such Event of Default shall not relieve Lessee of any other liabilities under any other Lease or the Equipment listed therein; (c) Lessor may take whatever action at law or in equity may appear necessary or desirable to enforce its rights under such Lease or as a secured party in any or all of the Equipment subject to such Lease; and (d) by action pursuant to the California Code of Civil Procedure, or as otherwise provided by law, obtain the issuance of a writ of mandamus enforcing, for the entire balance of the remaining Lease Term, the duty of Lessee to appropriate and take all other administrative Cam✓; steps necessary for the payment of rents, and other amounts due hereunder. #765674vl (BAPCC/CAAbatem=t L=eTemplate) 16 i Section 12.03. No Remedy 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 inequity. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver thereof,but any such right or power may be exercised from time to time and as often as may be deemed expedient. In order to entitle Lessor to exercise any remedy reserved to it in this Article it shall not be necessary to give any notice other than such notice as may be required in this Article. Section 12.04. Application of Moneys. Any net proceeds from the exercise of any remedy under this Agreement, including the application specified in Section 12.02(b)(ii) (after deducting all expenses of Lessor in exercising such remedies including without limitation all expenses of taking possession, storing, reconditioning and selling or leasing Equipment and all brokerage, auctioneer's or attorney's fees), shall be applied as follows: (a) 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. I (b) 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 ARTICLE XIII Section 13.01. Notices. All notices, certificates or other communications under any Lease shall be sufficiently given and shall be deemed given when delivered or mailed by registered mail, postage prepaid, or delivered by overnight courier, or sent by facsimile transmission (with electronic confirmation) to the parties hereto at the addresses immediately after the signatures to this Agreement (or at such other address as either party hereto shall designate in writing to the other for notices to such party) and to any assignee at its address as it appears on the registration books maintained by Lessee. Section 13.02. Binding Effect. Each Lease shall inure to the benefit of and shall be binding upon Lessor and Lessee and their respective successors and assigns. Section 13.03. Severability. 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 hereof. Section 13.04. Amendments, Changes and Modifications. This Agreement and each Lease may only be amended by Lessor and Lessee in writing. i Section 13.05. Execution in Counterparts. This Agreement and each Lease may be simultaneously executed in several counterparts, each of which shall be an original and all of i O which shall constitute but one and the same instrument. #765674v1 (BAPCC/CA Aba amt Lease Template) 17 Section 13.06 Applicable Law. This Agreement and each Lease shall be governed by and construed in accordance with the laws of the State. Section 13.07. Captions. 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. IN WITNESS W=OF, 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: LESSEE: Bank of America,National Association City of San Bernardino 555 California Street,4th Floor 300 North D Street San Francisco,California 94104 San Bernardino, CA 92418 By By Title Title (Seal) Attest: yr Tide #765674v1 (BAPCC/CA Abatement Lease Template) 18 Exhibit A ACQUISITION FUND AND ACCOUNT CONTROL AGREEMENT This Acquisition Fund and Account Control Agreement (this "Agreement"), dated as of May 10, 2010, by and among Bank of America, National Association, a national banking association (hereinafter referred to as "Lessor"), City of San Bernardino, a political subdivision of the state of California(hereinafter referred to as "Lessee") and Deutsche Bank National Trust Company, a national trust company (hereinafter referred to as"Acquisition Fund Custodian"). Reference is made to that certain Master Equipment Lease/Purchase Agreement No. 2114500-06000 dated as of May 10, 2010,between Lessor and Lessee (hereinafter referred to as the "Lease"), covering the acquisition and lease of certain Equipment described therein (the "Equipment"). It is a requirement of the Lease that the Equipment Cost of the Equipment (an amount not to exceed $323,700.00 be deposited into an escrow under terms satisfactory to Lessor, for the purpose of fully funding the Lease, and providing a mechanism for the application of such amounts to the purchase of and payment for the Equipment. The parties agree as follows: 1. Creation of Acquisition Fund. (a) There is hereby created a special trust fund to be known as the "City of Q^� San Bernardino #2114500-06000 (Schedule No. 3) Acquisition Fund" (the "Acquisition Fund") to be held in trust by the Acquisition Fund Custodian for the purposes stated herein, for the benefit of Lessor and Lessee, to be held, disbursed and returned in accordance with the terms hereof. (b) The Acquisition Fund Custodian shall invest and reinvest moneys on deposit in the Acquisition Fund in Qualified Investments in accordance with written instructions received from Lessee. Lessee shall be solely responsible for ascertaining that all proposed investments and reinvestments are Qualified Investments and that they comply with federal, state and local laws, regulations and ordinances governing investment of such funds and for providing appropriate notice to the Acquisition Fund Custodian for the reinvestment of any maturing investment. Accordingly, neither the Acquisition Fund Custodian nor Lessor shall be responsible for any liability, cost, expense, loss or claim of any kind, directly or indirectly arising out of or related to the investment or reinvestment of all or any portion of the moneys on deposit in the Acquisition Fund, and Lessee agrees to and does hereby release the Acquisition Fund Custodian and Lessor from any such liability, cost, expenses,loss or claim. Interest on the Acquisition Fund shall become part of the Acquisition Fund, and gains and losses on the investment of the moneys on deposit in the Acquisition Fund shall be borne by the Acquisition Fund. For purposes of this agreement, "Qualified Investments"means any investments which meet the requirements of [state law citation[. IN THE ABSENCE OF WRITTEN INSTRUCTIONS,THE ACQUISITION FUND CUSTODIAN IS HEREBY AUTHORIZED AND DIRECTED TO INVEST AND REINVEST ALL FUNDS ON HAND IN FDIC INSURED CERTIFICATES OF DEPOSITS(4)WEEKS MATURITY AND WITH AN AUTOMATIC FOUR(4)WEEKS ROLL-OVER UNTIL OTHERWISE DIRECTED. #765408vl(BAPCCIAFA General) I (c) Unless the Acquisition Fund is earlier terminated in accordance with the provisions of paragraph (d) below, amounts in the Acquisition Fund shall be disbursed by the Acquisition Fund Custodian in payment of amounts described in Section 2 hereof upon receipt of written authorization(s) from Lessor, as is more fully described in Section 2 hereof. If the amounts in the Acquisition Fund are insufficient to pay such amounts, Lessee shall provide any balance of the funds needed to complete the acquisition of the Equipment. Any moneys remaining in the Acquisition Fund after May 10, 2011 (the "Acquisition Period') shall be applied as provided in Section 4 hereof. (d) The Acquisition Fund shall be terminated at the earliest of (i) the final distribution of amounts in the Acquisition Fund or (ii) written notice given by Lessor of the occurrence of a default or termination of the Lease due to non-appropriation. (e) The Acquisition Fund Custodian may act in reliance upon any writing or instrument or signature which it, in good faith, believes to be genuine and may assume the validity and accuracy of any statement or assertion contained in such a writing or instrument. The Acquisition Fund Custodian shall not be liable in any manner for the sufficiency or correctness as to form, manner of execution, or validity of any instrument nor as to the identity, authority, or right of any person executing the same; and its duties hereunder shall be limited to the receipt of such moneys, instruments or other documents received by it as the Acquisition Fund Custodian, and for the disposition of the same in accordance herewith. (f) Unless the Acquisition Fund Custodian is guilty of gross negligence or (� willful misconduct with regard to its duties hereunder, Lessee agrees to and does hereby release �✓ and indemnify the Acquisition Fund Custodian and hold it harmless from any and all claims, liabilities, losses, actions, suits or proceedings at law or in equity, or any other expense, fees or charges of any character or nature, which it may incur or with which it may be threatened by reason of its acting as Acquisition Fund Custodian under this agreement; and in connection therewith, does to the extent permitted by law indemnify the Acquisition Fund Custodian against any and all expenses; including reasonable attorneys' fees and the cost of defending any action, suit or proceeding or resisting any claim. (g) If Lessee and Lessor shall be in disagreement about the interpretation of the Lease, or about the rights and obligations, or the propriety of any action contemplated by the Acquisition Fund Custodian hereunder, the Acquisition Fund Custodian may, but shall not be required to, file an appropriate civil action to resolve the disagreement. The Acquisition Fund Custodian shall be reimbursed by Lessee for all costs, including reasonable attorneys' fees, in connection with such civil action, and shall be fully protected in suspending all or part of its activities under the Lease until a final judgment in such action is received. (h) The Acquisition Fund Custodian may consult with counsel of its own choice and shall have full and complete authorization and protection with the opinion of such counsel. The Acquisition Fund Custodian shall otherwise not be liable for any mistakes of fact or errors of judgment, or for any acts or omissions of any kind unless caused by its willful misconduct. #765408v1(BAPCC/AFA General) 2 (i) Lessee shall reimburse the Acquisition Fund Custodian for all reasonable costs and expenses, including those of the Acquisition Fund Custodian's attorneys, agents and employees incurred for extra-ordinary administration of the Acquisition Fund and the performance of the Acquisition Fund Custodian's powers and duties hereunder in connection with any Event of Default under the Lease, or in connection with any dispute between Lessor and Lessee concerning the Acquisition Fund. 2. Acquisition of Property. (a) Acquisition Contracts. Lessee will arrange for, supervise and provide for, or cause to be supervised and provided for, the acquisition of the Equipment, with moneys available in the Acquisition Fund. Lessee represents the estimated costs of the Equipment are within the funds estimated to be available therefor, and Lessor makes no warranty or representation with respect thereto. Lessor shall have no liability under any of the acquisition or construction contracts. Lessee shall obtain all necessary permits and approvals, if any, for the acquisition, equipping and installation of the Equipment, and the operation and maintenance thereof. (b) Authorized Acquisition Fund Disbursements. Disbursements from the Acquisition Fund shall be made for the purpose of paying (including the reimbursement to Lessee for advances from its own funds to accomplish the purposes hereinafter described) the cost of acquiring the Equipment. (c) Requisition Procedure. No disbursement from the Acquisition Fund shall be made unless and until Lessor has approved such requisition. Prior to disbursement from the Acquisition Fund there shall be filed with the Acquisition Fund Custodian a requisition for such payment in the form of Disbursement Request attached hereto as Schedule 1, stating each amount to be paid and the name of the person, firm or corporation to whom payment thereof is due. Each such requisition shall be signed by an authorized representative of Lessee (an "Authorized Representative") and by Lessor, and shall be subject to the following: 1. Delivery to Lessor of a certificate of Lessee to the effect that: (i) an obligation in the stated amount has been incurred by Lessee, and that the same is a proper charge against the Acquisition Fund for costs relating to the Equipment identified in the Lease, and has not been paid; (ii) the Authorized Representative has no notice of any vendor's, mechanic's or other liens or rights to liens, chattel mortgages, conditional sales contracts or security interest which should be satisfied or discharged before such payment is made; (iii) such requisition contains no item representing payment on account, or any retained percentages which Lessee is, at the date of such certificate, entitled to retain; and (iv) the Equipment is insured in accordance with the Lease. 2. Delivery to Lessor of an Acceptance Certificate executed by Lessee, © together with any Purchase Agreement Assignment or bill of sale and invoice therefor as required by Section 3.04 of the Lease; #765408vl(BAPCC/AFA G==I) 3 i 3. The disbursement shall occur during the Acquisition Period set forth in the Schedule applicable to such Equipment; 4. There shall exist no Event of Default (nor any event which, with notice or lapse of time or both,would become an Event of Default); and 5. No material adverse change in Lessee's or any guarantor's financial condition shall have occurred since the date of the Lease. 3. Deposit to Acquisition Fund. Upon satisfaction of the conditions specified in Section 3.04 of the Lease, Lessor will cause the Lease Proceeds to be deposited in the Acquisition Fund. Lessee agrees to pay any costs with respect to the Equipment in excess of amounts available therefor in the Acquisition Fund. 4. Excessive Acquisition Fund. Following the final disbursement from the Acquisition Fund at the end of the Acquisition Period, or termination of the Acquisition Fund as otherwise provided herein, the Acquisition Fund Custodian shall transfer any remainder from the Acquisition Fund to Lessor for application to amounts owed under the Lease in accordance with Section 4.07 of the Lease. 5. Security Interest. The Acquisition Fund Custodian and Lessee acknowledge and agree that the Acquisition Fund and all proceeds thereof are being held by Acquisition Fund Custodian for disbursement or return as set forth herein. Lessee hereby grants to Lessor a first [� priority perfected security interest in the Acquisition Fund, and all proceeds thereof, and all �•+ investments made with any amounts in the Acquisition Fund. If the Acquisition Fund, or any part thereof, is converted to investments as set forth in this agreement, such investments shall be made in the name of Acquisition Fund Custodian and the Acquisition Fund Custodian hereby agrees to hold such investments as bailee for Lessor so that Lessor is deemed to have possession of such investments for the purpose of perfecting its security interest. 6. Control of Acquisition Account. In order to perfect Lessor's security interest by means of control in (i)the Acquisition Fund established hereunder, (ii) all securities entitlements, investment property and other financial assets now or hereafter credited to the Acquisition Fund, (iii) all of Lessee's rights in respect of the Acquisition Fund, such securities entitlements, investment property and other financial assets, and (iv) all products, proceeds and revenues of and from any of the foregoing personal property (collectively, the "Collateral"), Lessor, Lessee and Acquisition Fund Custodian further agree as follows: (a) All terms used in this Section 6 which are defined in the Commercial Code of the state of California ("Commercial Code") but are not otherwise defined herein shall have the meanings assigned to such terms in the Commercial Code, as in effect on the date of this Agreement. (b) Acquisition Fund Custodian will comply with all entitlement orders originated by Lessor with respect to the Collateral, or any portion of the Collateral, without further consent by Lessee. #765408vl(BAPCC/AFA General) 4 +, (c) Acquisition Fund Custodian hereby represents and warrants (a) that the records of Acquisition Fund Custodian show that Lessee is the sole owner of the Collateral, (b)that Acquisition Fund Custodian has not been served with any notice of levy or received any notice of any security interest in or other claim to the Collateral, or any portion of the Collateral, other than Lessor's claim pursuant to this Agreement, and (c) that Acquisition Fund Custodian is not presently obligated to accept any entitlement order from any person with respect to the Collateral, except for entitlement orders that Acquisition Fund Custodian is obligated to accept from Lessor under this Agreement and entitlement orders that Acquisition Fund Custodian, subject to the provisions of paragraph(e)below, is obligated to accept from Lessee. (d) Without the prior written consent of Lessor, Acquisition Fund Custodian will not enter into any agreement by which Acquisition Fund Custodian agrees to comply with any entitlement order of any person other than Lessor or, subject to the provisions of paragraph (e) below, Lessee, with respect to any portion or all of the Collateral. Acquisition Fund Custodian shall promptly notify Lessor if any person requests Acquisition Fund Custodian to enter into any such agreement or otherwise asserts or seeks to assert a lien, encumbrance or adverse claim against any portion or all of the Collateral. (e) Except as otherwise provided in this paragraph(e) and subject to Section 1(b) hereof, Acquisition Fund Custodian may allow Lessee to effect sales, trades, transfers and exchanges of Collateral within the Acquisition Fund,but will not, without the prior written consent of Lessor, allow Lessee to withdraw any Collateral from the Acquisition Fund. Acquisition Fund Custodian acknowledges that Lessor reserves the right, by delivery of written notice to Acquisition Fund Custodian, to prohibit Lessee from effecting any withdrawals (including withdrawals of ordinary cash dividends and interest income), sales, trades,transfers or exchanges of any Collateral held in the Acquisition Fund. Further, Acquisition Fund Custodian hereby agrees to comply with any and all written instructions delivered by Lessor to Acquisition Fund Custodian (once it has had a reasonable opportunity to comply therewith) and has no obligation to, and will not, investigate the reason for any action taken by Lessor, the amount of any obligations of Lessee to Lessor, the validity of any of Lessor's claims against or agreements with Lessee, the existence of any defaults under such agreements, or any other matter. (f) Lessee hereby irrevocably authorizes Acquisition Fund Custodian to comply with all instructions and entitlement orders delivered by Lessor to Acquisition Fund Custodian. (g) Acquisition Fund Custodian will not attempt to assert control, and does not claim and will not accept any security or other interest in, any part of the Collateral, and Acquisition Fund Custodian will not exercise, enforce or attempt to enforce any right of setoff against the Collateral, or otherwise charge or deduct from the Collateral any amount whatsoever. (h) Acquisition Fund Custodian and Lessee hereby agree that any property held in the Acquisition Fund shall be treated as a financial asset under such section of the Commercial Code as corresponds with Section 8-102 of the Uniform Commercial Code, notwithstanding any contrary provision of any other agreement to which Acquisition Fund Custodian may be a party. #765408vl (BAPCC/AFA General) 5 (i) Acquisition Fund Custodian is hereby authorized and instructed, and hereby agrees, to send to Lessor at its address set forth in Section 7 below, concurrently with the sending thereof to Lessee, duplicate copies of any and all monthly Acquisition Fund statements or reports issued or sent to Lessee with respect to the Acquisition Fund. 7. Miscellaneous. Capitalized terms not otherwise defined herein shall have the meanings assigned to them in the Lease. This agreement may not be amended except in writing signed by all parties hereto. This agreement may be executed in one or more counterparts, each of which shall be deemed to be an original inst urnent and each shall have the force and effect of an original and all of which together constitute, and shall be deemed to constitute, one and the same instrument. Notices hereunder shall be made in writing and shall be deemed to have been duly given when personally delivered or when deposited in the mail, first class postage prepaid, or delivered to an express carrier, charges prepaid, or sent by facsimile with electronic confirmation, addressed to each party at its address below: If to Lessor: Bank of America, National Association 555 California Street,4th Floor Mail Code: CA5-705-04-01 San Francisco, CA 94104 Attn: Contract Administration Fax: (415) 765-7373 If to Lessee: City of San Bernardino 300 North D Street San Bernardino, CA 92418 Attn: Mr. Michael Gomez Fax: (909) 384-5043 If to Acquisition Fund Custodian: Deutsche Bank National Trust Company 101 California Street,46a'Floor San Francisco, CA 94111 Attn: Raafat Albert Sarkis Phone: (415) 617-2801 Fax: (415) 617-4270 #765408vl(BAPCC/AFA General) 6 © In Witness Whereof, the parties have executed this Acquisition Fund and Account Control Agreement as of the date fast above written. Bank of America,National Association, City of San Bernardino, as Lessor as Lessee By: By: Title: Title: Deutsche Bank National Trust Company As Acquisition Fund Custodian By: Title: By: Title: i #765408vl(BAPCC/AFA General) 7 Schedule 1 -- SCHEDULE 3 FORM OF DISBURSEMENT REQUEST Re: Master Equipment Lease/Purchase Agreement No. 2114500-06000, dated as of May 10, 2010,by and between Bank of America,National Association, as Lessor and City of San Bernardino, as Lessee(the"Lease") In accordance with the terms of the Acquisition Fund and Account Control Agreement, dated as of May 10, 2010, (the "Acquisition Fund and Account Control Agreement") by and among Bank of America, National Association ("Lessor"), City of San Bernardino ("Lessee") and Deutsche Bank National Trust Company (the "Acquisition Fund Custodian"), the undersigned hereby requests the Acquisition Fund Custodian pay the following persons the following amounts from the Acquisition Fund created under the Acquisition Fund and Account Control Agreement(the"Acquisition Fund") for the following purposes. Payee's Name and Address Invoice Number Dollar Amount Purpose C The undersigned hereby certifies as follows: (i) An obligation in the stated amount has been incurred by Lessee, and the same is a proper charge against the Acquisition Fund for costs relating to the Equipment identified in the Lease, and has not been paid. Attached hereto is the original invoice with respect to such obligation. (ii) The undersigned, as Authorized Representative, has no notice of any vendor's, mechanic's or other liens or rights to liens, chattel mortgages, conditional sales contracts or security interest which should be satisfied or discharged before such payment is made. (iii) This requisition contains no item representing payment on account, or any retained percentages which Lessee is, at the date hereof, entitled to retain. (iv) The Equipment is insured in accordance with the Lease. (v) No Event of Default, and no event which with notice or lapse of time, or both, would become an Event of Default, under the Lease has occurred and is continuing at the date hereof. i #96540Sv1(BAPCC/AFA General) 1 (vi) The disbursement shall occur during the Acquisition Period set forth in the Schedule applicable to such Equipment. (vii) No material adverse change in Lessee's or any guarantor's financial condition shall have occurred since the date of the Lease. Dated: CITY OF SAN BERNARDINO By: Authorized Representative Disbursement of funds from the Acquisition Fund in accordance with the foregoing Disbursement Request hereby is authorized BANK OF AMERICA,NATIONAL ASSOCIATION as Lessor under the Lease By: Title: Assistant Vice President i V #765408vl(BAPCGAFA Genera!) 2 CEXHIBIT A-1 RENTAL PAYMENT SCHEDULE Rental Rental Interest Payment Payment Portion Principal Purchase Date Amount 3.7800% Portion Balance 5/10/2010 323,700.00 11/10/2010 57,574.46 6,117.93 51,456.53 272,243.47 5/10/2011 57,574.46 5,145.40 52,429.06 219,814.40 11110/2011 57,574.46 4,154.49 53,419.97 166,394.43 5/10/2012 57,574.46 3,144.85 54,429.61 111,964.82 11/10/2012 57,574.46 2,116.14 55,458.33 56,506.49 5/10/2013 57,574.46 1,067.97 56,506.49 0 TOTAL 345,446.79 21,746.79 323,700.00 Prepayment Premium for purposes of Section 10.01 (a)is 0%. For purposes of this Lease, "Taxable Rate,"with respect to the interest component of Rental Payments, means an annual rate of interest equal to 5.5048%. LESSEE: City of San Bernardino By: Title CERTIFICATE © The undersigned, a duly elected and acting Secretary of ("Lessee') certifies as follows: A. The following listed persons are duly elected and acting officials of Lessee (the "Officials") in the capacity set forth opposite their respective names below and that the facsimile signatures are true and correct as of the date hereof, B. The Officials are duly authorized, on behalf of Lessee, to negotiate, execute and deliver the Master Equipment Lease%P nrchase Agreement No. 2114500-06000, dated as of May 10, 2010, and the Schedule(s) thereunder and all future Schedule(s) (the "Agreements") by and between Lessee and Bank of America, National Association and these Agreements are binding and authorized Agreements of Lessee; enforceable in all respects in accordance with their terms. Name of Official Title Signature I Dated By Title (The signer of this Certificate cannot be listed above as authorized to execute the Agreements.) O Exhibit A • 1 SCHEDULE OF PROPERTY NO. 3 Re: Master Equipment Lease/Purchase Agreement No. 2114500-06000 dated as of May 10, 2010,between Bank of America,National Association, as Lessor, and City of San Bernardino, as Lessee 1. Defined Terms. All terms used herein have the meanings ascribed to them in the above-referenced Master Equipment Lease/Purchase Agreement (the "Master Equipment Lease'). 2. Equipment. The following items of Equipment are hereby included under this Schedule of the Master Equipment Lease. Various police vehicles 3. Payment Schedule. (a) Rental Payments. The Rental Payments shall be in such amounts and payable on such dates as set forth in the Rental Payment Schedule attached to this Schedule as Exhibit A-1. Rental Payments shall commence on the date on which the Equipment listed in this Schedule is accepted by Lessee, as indicated in an Acceptance Certificate substantially in the form of Exhibit B to the Master Equipment Lease or the �^ date on which sufficient moneys to purchase the Equipment are deposited for that 11r• purpose with an Acquisition Fund Custodian,whichever is earlier. (b) Purchase Price Schedule. The Purchase Price on each Rental Payment date for the Equipment listed in this Schedule shall be the amount set forth for such Rental Payment date in the "Purchase Price" column of the Rental Payment Schedule attached to this Schedule. The Purchase Price is in addition to all Rental Payments then due under this Schedule (including the Rental Payment shown on the same line in the Rental Payment Schedule). 4. Representations, Warranties and Covenants. Lessee hereby represents, warrants and covenants that its representations, warranties and covenants set forth in the Master Equipment Lease are true and correct as though made on the date of commencement of Rental Payments on this Schedule. Lessee further represents and warrants that no material adverse change in Lessee's financial condition has occurred since the date of the Master Equipment Lease. 5. The Lease. The terms and provisions of the Master Equipment Lease (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. 6. Lease Proceeds. The Lease Proceeds which Lessor shall pay to the Acquisition Fund Custodian in connection with this Schedule is $323,700.00, of which #765674v1 (BAPCC/CA Abatement Lease Template) A-1 $0.00 is for deposit to the Expense Fund and the balance is for deposit to the Acquisition Fund. 7. Acquisition Period. The Acquisition Period applicable to this Schedule shall end on May 10, 2011. 8. Lease Term. The Lease Term shall consist of 36 months, ending on May 10, 2013. 9. Purchase Option Commencement Date. For purposes of Section 10.01 of the Lease,the Purchase Option Commencement Date is May 10, 2013. 10. Pre-Payment Premium. On any Rental Payment Date after the first half of the lease term, Lessee shall have the option to purchase all Equipment under a Schedule upon payment in full of the Rental Payments then due under such Schedule plus the then applicable Purchase Price,which will not include a prepayment premium on the unpaid balance as set forth in the applicable Schedule. 11. Registration. Any Equipment that is a motor vehicle is to be registered and titled as follows: (a) Reeistered Owner: City of San Bernardino (b) Lienholder: Bank of America,N. A. 2059 Northlake Parkway Mail Code GA3-003-04-01 Tucker, GA 30084-5399 Lessee shall be responsible for the correct titling of all Equipment leased hereunder. Lessee will cause the original Certificates of Title to be delivered to Lessor for retention in Lessor's files throughout the term of the Lease. #765674v1 (BAPCGCA Abatement Lease TempIae) A-2 i Dated: May 10,2010 LESSOR: LESSEE: Bank of America,National Association City of San Bernardino 555 California Street, 4th Floor 300 North D Street San Francisco, California 94104 San Bernardino, CA 92418 By By Title Title (Seal) Attest: By Title #765674vl (BAPCC/CA Abatmnmt L. a Template) A-3 EXHIBIT A-1 V RENTAL PAYMENT SCHEDULE Rental " Rental Interest Principal Purchase Payment Payoment unt Portion Portion Price Date Am I I Prepayment Premium for purposes of Section 10.01(a) is 0%. For purposes of this Lease, "Taxable Rare, - with respect to the interest component of Rental Payments, means an annual rate of interest equal to %. LESSEE: By DO NOT EXECUTE Title V'76 5674v] (GA11CCICA Almtement Lease Template) A-1-1 Exhibit B • 1 and Exhibit B • 2 EXHIBIT A SCHEDULE OF PROPERTY NO. Re: Master Equipment Lease/Purchase Agreement, dated as of between Bank of America, National Association, as Lessor, and , as Lessee 1. Defined Terms. All terms used herein have the meanings ascribed to them in the above-referenced Master Equipment Lease/Purchase Agreement (the "Master Equipment Lease'). 2. Equipment. The following items of Equipment are hereby included under this Schedule of the Master Equipment Lease. Quantity Description Serial No. Model No. Location © 3. Payment Schedule. (a) Rental Payments. The Rental Payments shall be in such amounts and payable on such dates as set forth in the Rental Payment Schedule attached to this Schedule as Exhibit A-1. Rental Payments shall commence on the date on which the Equipment listed in this Schedule is accepted by Lessee, as indicated in an Acceptance Certificate substantially in the form of Exhibit B to the Master Equipment Lease or the date on which sufficient moneys to purchase the Equipment are deposited for that purpose with an Acquisition Fund Custodian, whichever is earlier. (b) Purchase Price Schedule. The Purchase Price on each Rental Payment date for the Term Estate in the Equipment listed in this Schedule shall be the amount set forth for such Rental Payment date in the "Purchase Price" column of the Rental Payment Schedule attached to this Schedule. The Purchase Price is in addition to all Rental Payments then due under this Schedule(including the Rental Payment shown on the same line in the Rental Payment Schedule). 4. Representations, Warranties and Covenants. Lessee hereby represents, warrants and covenants that its representations, warranties and covenants set forth in the Master Equipment Lease are true and correct as though made on the date of commencement of Rental Payments on this Schedule. Lessee further represents and warrants that no material adverse change in Lessee's financial condition has occurred since the date of the Master Equipment v Lease. #765674vl (BAPCC/CA Abatement Lease Template) A-1 �^ 5. The Lease. The terms and provisions of the Master Equipment Lease (other than 1r� 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. 6. Lease Proceeds. The Lease Proceeds which Lessor shall pay to the Acquisition Fund Custodian in connection with this Schedule is $ , of which $ is for deposit to the Expense Fund and the balance is for deposit to the Acquisition Fund. 7. Acquisition Period. The Acquisition Period applicable to this Schedule shall end on December 16, 2010. 8. Lease Term. The Lease Term shall consist of months, ending on 9. Purchase Option Commencement Date. For purposes of Section 10.01 of the Lease,the Purchase Option Commencement Date is 10. Pre-Payment Premium. On any Rental Payment Date after the first half of the lease term, Lessee shall have the option to purchase all Equipment under a Schedule upon payment in full of the Rental Payments then due under such Schedule plus the then applicable Purchase Price,which will not include a prepayment premium on the unpaid balance as set forth in the applicable Schedule. 11. Registration. Any Equipment that is a motor vehicle is to be registered and titled as follows: (a) Renistered Owner: City of San Bernardino (b) Lienholdet: Bank of America,N. A. 2059 Northlake Parkway Mail Code GA3-003-04-01 Tucker, GA 30084-5399 Lessee shall be responsible for the correct titling of all Equipment leased hereunder. Lessee will cause the original Certificates of Title to be delivered to Lessor for retention in Lessor's files throughout the term of the Lease. i #765674A (BAPCGCA Abatement Lease Template) A-2 Dated: LESSOR: LESSEE: Bank of America,National Association 555 California Street,4th Floor San Francisco, California 94104 By By DO NOT EXECUTE Title Title (Seal) Attest: By Title Counterpart No. _ of manually executed and serially numbered counterparts. To the extent that this Lease constitutes chattel paper (as defined in the Uniform Commercial (� Code), no security interest herein may be created through the transfer or possession of any ♦/ Counterpart other than Counterpart No. 1. G #765674vl (BAPCGCA Abatement Lease Template) A-3 ExHiBIT A-1 RENTAL PAYMENT SCHEDULE Rental Rental Interest Principal Purchase Payment Payment Portion Portion Price Date Amount Prepayment Premium for purposes of Section 10.01(a) is 0%. For purposes of this Lease, "Taxable Rate," with respect to the interest component of Rental Payments,means an annual rate of interest equal to %. LESSEE: By DO NOT EXECUTE Title #765674v1 (BAPCC/CAAbatement Lease Template) A-1-1 Exhibit C CEXMBTr C CERTIFICATE The undersigned, a duly elected and acting Secretary of ("Lessee') certifies as follows: A. The following listed persons are duly elected and acting officials of Lessee (the "Officials') in the capacity set forth opposite their respective names below and that the facsimile signatures are true and correct as of the date hereof; B. The Officials are duly authorized, on behalf of Lessee, to negotiate, execute and deliver the Master Equipment Lease/Purchase Agreement dated as of and the Schedule(s) thereunder and all future Schedule(s) (the "Agreements') by and between Lessee and Bank of America, National Association and these Agreements are binding and authorized Agreements of Lessee, enforceable in all respects in accordance with their terms. Name of Official Title Signature Dated By DO NOT EXECUTE Title (The signer of this Certificate cannot be listed above as authorized to execute the Agreements.) #765674v1 (BAPCC/CAAbat==tLease Template) C-1 Exhibit D ElHmrr D OPINION OF COUNSEL To LESSEE Bank of America,National Association 555 California Street,4th Floor San Francisco, California 94104 Re: Schedule of Property No. dated to Master Equipment Lease/Purchase Agreement, dated as of between Bank of America,National Association, as Lessor,and as Lessee Ladies and Gentlemen: As legal counsel to ('Lessee'), I have examined (a)an executed counterpart of a certain Master Equipment Lease/Purchase Agreement, dated as of and Exhibits thereto by and between Bank of America, National Association ("Lessor') and Lessee (the "Agreement'), [and] an executed counterpart of Schedule of Property No. dated ,by and between Lessor and Lessee (the "Schedule'), which, among other things, provides for the lease of certain property listed in the Schedule (the "Equipment'), [and an executed counterpart of that certain Acquisition Fund and Account Control Agreement dated by and among Lessee, Lessor and the Custodian named therein (the "Acquisition Fund Agreement")] (b) an executed counterpart of the ordinances or resolutions of Lessee which, among other things, authorize Lessee to execute the Agreement and the Schedule and (c) such other opinions, documents and matters of law as I have deemed necessary in connection with the following opinions. The Schedule and the terms and provisions of the Agreement incorporated therein by reference together with the Rental Payment Schedule attached to the Schedule are herein referred to collectively as the "Lease". [The Lease and the Acquisition Fund Agreement are referred to herein collectively as the "Lease Documents"]. Based on the foregoing, I am of the following opinions: 1. Lessee is a public body corporate and politic, duly organized and existing under the laws of the State, and [has a substantial amount of the following sovereign powers: (a)the power to tax, (b)the power of eminent domain, and (c)police power][is a political subdivision of a state within the meaning of Section 103(c) of the Internal Revenue Code of 1986, as amended (the "Code") and the obligations of Lessee under the Agreement will constitute an obligation of Lessee within the meaning of Section 103(a)of the Code, notwithstanding Section 103(b) of the Code]; 2. Lessee has the requisite power and authority to lease and acquire the Equipment and to execute and deliver the Lease [Documents] and to perform its obligations under the Lease [Documents]; #765674vl (BAPCC/CAAbatement Lease Template) E-1 3. The Lease [Documents] has [have] been duly authorized, approved, executed and `.✓ delivered by and on behalf of Lessee and the Lease [Documents are] [is] a valid and binding obligation of Lessee enforceable in accordance with its [their] terms; 4. The authorization, approval, execution and delivery of the Lease [Documents] and all other proceedings of Lessee relating to the transactions contemplated thereby have been performed in accordance with all open meeting laws,public bidding laws and all other applicable state or federal laws; and 5. There is no proceeding pending or threatened in any court or before any governmental authority or arbitration board or tribunal that, if adversely determined, would adversely affect the transactions contemplated by the Lease Documents or the interest of Lessor or its assigns, as the case maybe,in the Equipment thereunder. 16. The portion of rentals designated as and constituting interest paid by Lessee and received by Lessor is excluded from Lessor's gross income for federal income tax purposes under Section 103 of the Code and is exempt from State of personal income taxes; and such interest is not a specific item for purposes of the federal individual or corporate alternative minimum taxes.] All capitalized terms herein shall have the same meanings as in the Lease unless otherwise provided herein. Lessor and its successors and assigns, and any counsel rendering an opinion on the tax-exempt status of the interest components of the Rental Payments, are entitled to rely on this opinion. Printed Name Signature DO NOT EXECUTE Firm Dated Address Telephone No. #337849v4(CA Abatement Lease Template) E-2 Exhibit E y EDIT B ACCEPTANCE CERTIFICATE Bank of America,National Association 555 California Street,4th Floor San Francisco, California 94104 Re: Schedule of Property No. , dated to Master Equipment Lease/Purchase Agreement, dated as of ,between Bank of America,National Association, as Lessor, and as Lessee. Ladies and Gentlemen: 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 term is defined in the Agreement) listed in the above-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 of 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 Section 7.02 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 defined in the Agreement) exists at the date hereof. Date: LESSEE: By DO NOT EXECUTE Title (Seal) #765674vl (BAPCGCA Abatement Lease Template) B-I