HomeMy WebLinkAboutS2- Public Services CI'T'Y OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: Pat Malloy , Director Subject: Purchase and financing of 9,800 ninety
gallon automated refuse containers.
Dept: Public Services
Date: 9/1/94
Synopsis of Previous Council action:
1/12/94 Resolution No. 94-6 - to purchase six automated refuse trucks
1/12/94 Resolution No. 94-7 - to finance same
AD 1N OFFiCEI
2 SEP ac, 10: 40
Recommended motion:
t Adopt Resolutions
I
Signature
( Contactperson. Kevin Barnes, Refuse Superintendent Phone: 5053
Supporting data attached: Two Resolutions, Staff Report Ward: All
FUNDING REQUIREMENTS: Amount:_ $535 , 217 . 30
Source: Acct. No. 127-412-56102
Acct. Description) Lease Payments (Refuse Enterprise Fund)
Finance: i c
Council Notes: -1/ 3
75-0262 Agenda Item No._S U i Z 8
i
CITY OF SAN BERW RDINO = REQUEST FIR COUNCIL ACTION
STAFF REPORT
RECONEUENDATION
Approve a purchase order to Toter, Inc. of Statesville, North Carolina for $429,083.50 to provide
9,800 ninety gallon automated refuse containers; approve financing of same over seven years on a
lease/purchase contract with First Public Finance Corporation.
BACKGROUND
The City of San Bernardino has successfully phased in automated refuse service for 18,000 homes,
or half the City, during the last four years. The Refuse Division budgeted for 9,800 new containers
during F/Y 93-94, to automate 7,600 more homes and provide additional containers for businesses,
apartments, and replacements. Due to the timing of truck manufacturing, the container bid was held
late in the fiscal year. Funds have been carried over to F/Y 94-95 in the Refuse Enterprise Fund.
The lowest price from a formal bid was $42.99 per container. Staff also received a price of$38.00
with an offer (Attachment A) from Toter, Inc. to extend the City of Bakersfield's pricing to the City
of San Bernardino per Bakersfield purchase order #6715 (Attachment B) from a bid opening on
' 7/15/94. This saves the City $51,219.40.
DISCUSSION
One would anticipate lower pricing with San Bernardino's earlier bid. However, material prices
fluctuate with time. Seizing the opportunity to purchase from another City's bid within the last year,
the City can save $51,219.40 on the currently needed order.
The amount to finance is $429,083.50. Fourteen semiannual payments decreasing from $44,800 to
$31,659.62 will be made. Total payout is $535,217.30. The cost of finance is $106,133.80 over
seven (7) years.
SUMMARY
The City of San Bernardino has an opportunity to save $51,219.40 on acquiring 9,800 automated
refuse containers budgeted for F/Y 93-94. The savings is available via purchasing from the City of
Bakersfield's 7/15/94 bid for acceptable equipment per San Bernardino Municipal Code Section
3.04.010, B.2. The savings is due to fluctuation of material prices which occurred after San
Bernardino's bid. San Bernardino went out to bid at an earlier date than Bakersfield to coincide with
delivery of new trucks. However, Bakersfield's lowest bidder has extended lower pricing to San
Bernardino.
IMPACT ON THE BUDGET
This lease/purchase has no impact on the General Fund Budget.
Pat Malloy Dated Dean Meech Dated
� 9
Kevin Bar Dated
75-0264
i
RESOLUTION NO.
1 RESOLUTION OF THE CITY OF SAN BERNARDINO ACCEPTING A LEAS
PURCHASE MASTER AGREEMENT FOR FIRST PUBLIC FINANCE CORPORATION AM
2 AWARDING A LEASE PURCHASE SCHEDULE 1 AGREEMENT TO FIRST PUBLI
FINANCE CORPORATION FOR THE FINANCING OF NINETY-EIGHT HUNDRE
3 (9, 800) 90 GALLON AUTOMATED REFUSE COLLECTION CONTAINERS, TO B
UTILIZED BY THE PUBLIC SERVICES DEPARTMENT.
4 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY O
t 5 SAN BERNARDINO AS FOLLOWS:
i
6 SECTION 1 . That First Public Finance Corporation is the lowest
7 and best responsible bidder for the financing of ninety-eight
8 hundred (9, 800) 90 gallon automated refuse collection containers i
9 accordance with financing bid #412-449 for the total amount of
10 $429, 083 . 50 at 6 . 5960% interest payable six (6) months in arrear
11 over seven (7) years for a total payment of $535, 217 . 30; pursuant t
12 this determination, the Purchasing Agent is hereby authorized an
13 directed to issue a Lease Purchase Schedule 1 Agreement for sai
E
14 ninety-eight hundred (9, 800) each, automated refuse collectio
15 containers to said lowest and best responsible bidder; such awar
16 shall only be effective upon the issuance of a Lease Purchas
17 Schedule 1 Agreement by the Purchasing Agent; and all othe
18 quotations therefore are hereby rejected.
19 SECTION 2 . The authorization to execute the above reference
20 Lease Purchase Schedule 1 Agreement is rescinded if the parties t
21 the agreement fail to execute it within sixty (60) days of th
22 passage of this resolution.
23
24
25
26
27
September 13 , 1994 -1-
28
�
1 RESOLUTION OF THE CITY OF SAN BERNARDINO ACCEPTING A LEASF
PURCHASE MASTER AGREEMENT FOR FIRST PUBLIC FINANCE CORPORATION ANI
2 AWARDING A LEASE PURCHASE AGREEMENT TO FIRST PUBLIC FINANCF
CORPORATION FOR THE FINANCING OF NINETY-EIGHT HUNDRED (9, 800) 9(
3 GALLON AUTOMATED REFUSE COLLECTION CONTAINERS, TO BE UTILIZED BY THE
PUBLIC SERVICES DEPARTMENT.
4
5 I HEREBY CERTIFY that the foregoing resolution was duly adoptec
6
by the Mayor and Common Council of the City of San Bernardino at
7 meeting thereof, held on the day of
8 199_, by the following vote, to wit :
9
10 Council Members : Ayes Nays Abstain Absent
11 NEGRETE
12 CURLIN
13 HERNANDEZ
14 OBERHELMAN
15 DEVLIN
16 POPE-LUDLAM
17 MILLER
i8 City Clerk
19
20 The foregoing resolution is hereby approved this day of
1994 .
21
22 TOM MINOR, Mayor
City of San Bernardino
23 Approved as to form and
24 legal content :
25 James F. Penman,
City Attorney
26
By
27
September 13 , 1994 -2-
28
RESOLUTION NO.
1 RESOLUTION OF THE CITY OF SAN BERNARDINO AWARDING A PURCHAS
ORDER TO TOTER, INC. FOR THE FURNISHING AND DELIVERY OF NINETY-EIGH
2 HUNDRED (9, 800) 90 GALLON AUTOMATED REFUSE COLLECTION CONTAINERS, T
BE UTILIZED BY THE PUBLIC SERVICES DEPARTMENT.
3 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY O
4 SAN BERNARDINO AS FOLLOWS:
5 SECTION 1 . That Toter, Inc. is the lowest and best responsibl
6 bidder for the furnishing and delivery of ninety eight-hundre
7 (9, 800) 90 gallon automated refuse collection containers i
8 accordance with Purchase Order #6715 dated 7/15/94 in the City of
9 Bakersfield, CA; pursuant to this determination, and San Bernardin
10 Municipal Code Section 3 . 04 . 010, B. 2, the Purchasing Agent is hereb
11 authorized and directed to issue a Purchase Order for said ninety
12 eight hundred (9, 800) each, automated refuse collection container
13 to said lowest and best responsible bidder; such award shall only b
14 effective upon the issuance of a Purchase Order by the Purchasin
15 Agent; and all other
g quotations therefor are hereby rejected.
16 SECTION 2 . The authorization to execute the above reference
17 Purchase Order is rescinded if the parties to the agreement fail t
18 execute it within sixty (60) days of the passage of this resolution.
19
20
21
22
23
24
25
26
27
September 14 , 1994 -1-
28
1 RESOLUTION OF THE CITY OF SAN BERNARDINO AWARDING A PURCHAS
ORDER TO TOTER, INC. FOR THE FURNISHING AND DELIVERY OF NINETY-EIGH
2 HUNDRED (9, 800) 90 GALLON AUTOMATED REFUSE COLLECTION CONTAINERS, T
BE UTILIZED BY THE PUBLIC SERVICES DEPARTMENT.
3
4 I HEREBY CERTIFY that the foregoing resolution was duly adopte
5 by the Mayor and Common Council of the City of San Bernardino at
6 meeting thereof, held on the day o
7 199_, by the following vote, to wit :
8
9 Council Members: Ayes Nays Abstain Absent
10 NEGRETE
11 CURLIN
12 HERNANDEZ
13 OBERHELMAN
14 DEVLIN
15 POPE-LUDLAM
16 MILLER
17
City Clerk
18
19 The foregoing resolution is hereby approved this day of
1994 .
20
21 TOM MINOR, Mayor
City of San Bernardino
22
Approved as to form and
23 legal content :
24 James F. Penman,
City Attorney
25
26 By:
27
28 September 14 , 1994 -2-
CALIFORNIA MASTER LEASE WITH OPTION TO PURCHASE AGREEMENT
THIS CALIFORNIA MASTER LEASE WITH OPTION TO PURCHASE AGREEMENT (this 'Lease' , dated as of the day set
forth on the execution page hereof, is made and entered into by and between First Public Finance Corporation,a
corporation duly organized and existing under the laws of the State of Oklahoma, as Lessor ("Lessor's, whose principal
business address is as shown on the execution page hereof; and the Lessee identified on the execution page 12 hereof,
a political subdivision of the State of California (the 'State"), as Lessee ("Lessee'), whose address is as shown on the
execution page hereof.
In consideration of the mutual covenants herein contained, the parties hereto recite and agree as follows:
ARTICLE 1: Definitions and Exhibits
Section 1.1. Definitions. Unless the context otherwise requires, the terms defined in this Section shall, for all
purposes of this Lease, have the meanings herein specified. or
Contractor: Each of the manufacturers�rLessee's request) has Lcontracted o�w�rcorrtra�ctforthemantufacturerdde�delivery
will order or with whom Lessee
and/or installation of the Equipment.
Equipment or Equipment Group: An item or items of personal property designated from time to me by Lessee
which are described in an Equipment Schedule, and which are being or will be leased with option to purchase by Lessee
pursuant to this Lease. An Equipment Group consists of the Equipment listed on any single page or set of pages of
Exhibit A.
.guipment Schedule: A schedule consisting of the separate but like numbered pages of Exhibits A and B which
have been completed with respect to Equipment Group and executed by Lessor and Lessee as indicated herein.
Final Termination Date: With respect to any Equipment Group, the date specified in the Equipment Schedule relating
thereto, which date corresponds to the end of the useful life of such Equipment Group.
Fiscal Year: The 12-month fiscal period of Lessee which commences in every year on the date shown on the execution
page hereof and ends on the following date shown on the execution page hereof.
Counsel: An attorney duly admitted to the practice of law before the highest court of the State who could be a full-time
employee of Lessor or Lessee.
Interest: The portion of any Rental Payment designated as and comprising interest as shown in any Equipment
Schedule.
L ease: With respect to each Equipment Group, this California Master Lease With Option to Purchase Agreement and
the Equipment Schedule in which such Equipment Group is described, which shall constitute a separate contract relating
to such Equipment Group.
Net Proceeds: Any insurance proceeds or condemnation awards paid with respect to any Equipment remaining after
payment therefrom of all expenses incurred in the collection thereof.
Payment Date: The date upon which any Rental Payment is due and payable as provided in any Equipment Schedule.
°ermitted Encumbrances: As of any particular time: (i) liens for taxes and assessments not then delinquent, (ii) this
.ease and amendments hereto and (iii Lessor's interest in the Equipment.
Principal: The portion of any Rental Payment designated as principal in any Equipment Schedule.
CafdomiaLease.Pags 1
p� rrhase Option Price: With respect to any Equipment Group, as of the Payment Date specified in the Equipment
:hedule relating thereto, the amount so designated and set forth opposite each such date in such Equipment
-ichedule.
Rent a1 nt:Payme With respect to any Equipment Group, the payment due from Lessee to Lessor on each Payment
Date during the Lease Tenn, as shown in the Equipment Schedule relating thereto.
aggg ications, The bid specifications and/or purchase order pursuant to which Lessee has ordered any Equipment
from a Contractor.
State and Federal Law or Laws: The Constitution and any law of the State and any charter, ordinance, rule or
regulation of any agency or political subdivision of the State; and any law of the United States, and any rule or regulation of
any federal agency.
Term of This Lease or Lease Term: With respect to any Equipment Group, the period during which this Lease is in
effect as specified in Section 4.1.
Section 1.2. Exhibits
Exhibit A: A schedule executed by Lessor and Lessee describing an Equipment Group being leased by Lessee
pursuant to this Lease, and setting forth the date and amount of each Rental Payment coming due during the Lease Term
with respect to such Equipment Group, the amount of such Rental Payments comprising Principal and Interest, and the
price at which Lessee may exercise its option to purchase Lessor's interest in such Equipment Group in accordance with
Article X. Lessee hereby and authorizes Lessor to insert the serial or other identifying numbers relating to the Equipment
and the due date of each Rental Payment in Exhibit A when available, and Lessee hereby agrees to sign and return to
Lessor any such schedule so completed by Lessor within three days of request by Lessor (provided that no failure by
'.essee to sign and return any such schedule shall affect the validity and enforceability of any such schedule completed by
-essor pursuant to the terms hereof).
Exhibit B: A form of Certificate of Acceptance of Lessee indicating that the Equipment Group described therein has
been delivered and installed in accordance with the Specifications, and has been accepted by Lessee, the date on which
Rental Payments shown in the page of Exhibit A relating thereto shall commence, and that certain other requirements
have been met by Lessee.
Exhibit C: A form of opinion of Counsel to Lessee as to the organization, nature and powers of Lessee; the validity,
execution and delivery of this Lease and various related documents; the absence of litigation; and related matters.
Exhibit D: A form of resolution of the governing body of Lessee relating to the Lease in the form of Exhibit D-1 hereto
and, if applicable, also relating to certain federal tax matters in the form of Exhibit D-2 hereto.
ARTICLE II: REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 2.1. Representationa Warranties and Covenants of Lessee. Lessee represents and warrants to
and covenants with Lessor with respect to this Lease and each Equipment Schedule, as follows:
(a) Lessee is a political subdivision of the State, duly organized and existing under the Constitution and laws
of the State, and is authorized under the Constitution and laws of the State to enter into this Lease and the transactions
contemplated hereby, and to perform all of its obligations hereunder.
(b) The execution and delivery of this Lease by the officer of Lessee executing it has been duly authorized
by a duly adopted resolution of Lessee's governing body, or by other appropriate official action, and such action has
complied and/or will comply with all public bidding and other State and Federal Laws applicable to this Lease and the
acquisition and financing of the Equipment by Lessee.
CardortoaLe"e.Page 2
(c) Lessee will use the Equipment during the Lease Term only to perform essential governmental functions.
(d) Lessee will take no action that would cause the interest portion of the Rental Payments to become
includable in gross income of the recipient for federal income tax purposes under the Internal Revenue Code of 1986, as
amended (the 'Code ), and Treasury Regulations promulgated thereunder (the 'Regulations', and Lessee
to will take and
ensure
will cause its officers, employees and agents to take all affirmative actions legally within Its power necessary
the interest portion of the Rental Payments does not become includable in gross income of the recipient for federal
income tax purposes under the Code and Regulations; all as amended from time to time (including, without limitation, the
calculation and payment of any rebate required to preserve such exclusion).
f information r statements and other information
(e) Lessee will submit to the Secretary of the Treasury� �
relating to this Lease and each Equipment Schedule at the times and in the farms required by the Code and the
Regulations; and if applicable, Lessee will cause a resolution substantially in the form lattached hereto as Exhibit D to be
adopted by its governing body with respect to this Lease and each Equipment
(f) Upon delivery and installation of any Equipment Group, Lessee will provide to Lessor a completed and
executed copy of a Certificate of Acceptance relating thereto in the form attached hereto as Exhibit 8, and upon execution
of this Lease and/or each Acceptance Certificate Lessee will provide to Lessor an opinion of its Independent Counsel in
the form attached hereto as Exhibit C.
(g) Lessee finds and determines that the amount of the Rental Payments set forth
al Year oEquipme t
Schedules are equal to the fair rental value of the related Equipment Groups during the respect
which such Rental Payments are made.
(h) The Equipment will have a useful life that is substantially in excess of the Lease Term.
4RTICLE III: LEASE OF EQUIPMENT
Section 3.1. of Equipment. Lessee shall advise Lessor of its desire to lease Equipment and of the
desired lease terms for the Equipment Group. Upon agreement by Lessor and Lessee as to the lease of the Equipment
and such terms, Lessor shall furnish to Lessee a proposed Exhibit A relating to the Equipment Group completed insofar as
possible. Lessee (or Lessor at Lessee's request) shall order the Equipment Group from the appropriate Contractor or
Contractors and notify Lessor in writing of the Equipment cost and the estimated delivery period. Nothing herein shall
obligate Lessor to lease any Equipment to Lessee until Lessor shall have so concurred in writing.
Section 3.2. f ipment Delivery' Documentation Lessor and Lessee shall complete and execute an Exhibit A
with respect to each Equipment Group. Upon delivery of any Equipment Group, Lessee shall inspect such Equipment,
and if such Equipment meets Lessee's Specifications, Lessee shall, within three (3) business days from the date of
delivery of the Equipment Group, provide to Lessor a completed and executed copy of a Certificate of Acceptance relating
thereto in the form attached hereto as Exhibit B. Simultaneously with the delivery, Lessor and Lessee shall take all actions
necessary to vest legal title to the Equipment Group in Lessee, and to perfect a security interest therein in favor of Lessor
or a person, firm or corporation designated by it.
Section 3.3. Lea-see Enjoyment: inspection Lessor hereby leases to Lessee each Equipment Group made
subject to this Lease, and Lessee hereby leases from Lessor such Equipment Group, upon the terms and conditions set
forth in this Lease. Lessor hereby covenants to provide Lessee during the Lease Term with the quiet use and enjoyment
of the Equipment, and Lessee shall during the Lease Term peaceably and quietly have and hold and enjoy the
Equipment, without suit, trouble or hindrance from Lessor, except as expressly set forth in this Lease. Lessor will, at the
request of Lessee and at Lessee's cost, pin in any legal action in which Lessee asserts its right to such possession and
enjoyment to the extent Lessor lawfully may do so. Lessee agrees that Lessor shall have the right at all reasonable times
to examine and inspect the Equipment. Lessee further agrees that Lessor shall have such rights of access to the
'Equipment as may be reasonably necessary to cause the proper maintenance of the Equipment in the event of failure by
essee to perform its obligations hereunder.
Caib�.Pap 3
ARTICLE iV: TERM OF LEASE
Section 4.1.
cease Term. This Lease shall be in effect for a Lease Term commencing upon its date of execution and
ending as provided in Section 4.2. This Lease shall be in effect with respect to each Equipment Group for a Lease Term
commencing upon the date of execution of Exhibit A of the Equipment Schedule relating thereto and ending as provided
in Section 4.2. unless such Lease Term is extended as provided in this Section, provided that Rental Payments relating to
an Equipment Group shall be due and payable commencing upon execution of the related Certificate of Acceptance. If on
the date of termination of this Lease with respect to any Equipment Group the Rental Payments shall not be fully paid, or
provision therefor made, or such Rental Payments shall have been abated at arty time and for any reason, then such
Lease Term shall be extended until the date upon which all such Rental Payments shall be fully paid, except that such
Lease Term shall in no event extend beyond the Final Termination Date.
Section 4.2. ==WV== The Lease Term with respect to any Equipment Group will terminate
upon the occurrevents: (a) the exercise by Lessee of its txh E to quipment c nd
interest in such Equipment Group pursuant to Article X; (b) a default by Lessee with respect Group
Lessor's election to terminate this Lease with respect to such Equipment Group pursuant to Article XII; or (c) the payment
by Lessee of all Rental Payments and all other amounts authorized or required to be paid by Lessee hereunder with
respect to such Equipment Group.
ARTICLE V: RENTAL PAYMENTS
Section 5.1. Rental Payments. Subject to Section 5.2. Lessee agrees to pay Rental Payments with respect to
each Equipment Group during the Lease Term, as rental for the use and possession of such Equipment Group, in the
amounts and on the dates specified in the Equipment Schedule relating thereto, provided that Rental Payments relating
to an Equipment Group shall be due and payable commencing upon execution of the related Certificate of Acceptance.
Lessee hereby authorizes Lessor to insert the due date of each Rental Payment on Exhibit A when available, and Lessee
hereby agrees to sign and return to Lessor any such schedule so completed by Lessor within three days of request by
_essor (provided that no failure by Lessee to sign and return any such schedule shall affect the validity and enforceability
of any such schedule completed by Lessor pursuant to the terms hereof). All Rental Payments shall be paid to Lessor; or
to such other assignee(s) to which Lessor has assigned such Rental Payments as specified in Article XI, at such place as
Lessor or such assignee(s) may from time to time designate by written notice to Lessee. Lessee shall pay the Rental
payments exclusively from moneys legally available therefor, in lawful money of the United States of America.
Section 5.2. 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 Group, there is substantial interference with the use and possession by Lessee of any part of such
Equipment Group, the Rental Payments due hereunder with respect to such Equipment Group shall be abated
proportionately in whole or in part. The amount of abatement shah be such that the remaining rental obligation for a given
rental period represents fair consideration for the use and possession of the portions of such Equipment Group that are
complete and are not affected by such interference. Such abatement shall commence on the date that Lessee's use and
possession of all or a portion of such Equipment Grog is restricted because it has not been completed or because of
such interference and end on the earlier of the date on which the use and possession thereof are restored to Lessee or
the date on which Lessee uses the Net Proceeds of insurance or a condemnation awards to pay the Rental Payments or
the applicable Purchase Option Price. In the event of any such interference, this Lease shall continue in full force and
effect. Lessee waives the benefits of Civil Code Section 1932 and any and all other rights to terminate this Lease by virtue
of any interference with the use and possession of the Equipment.
Section 5.3. Appropriations. The person or entity in charge of preparing Lessee's budget will include in the budget
request for each Fiscal Year the Rental Payments to become due in such Fecal Year with respect to each Equipment
Group, and will use all reasonable and lawful means available to secure the appropriation of money for such Fiscal year
sufficient to pay all such Rental Payments coming due therein. The covenants on the part of Lessee contained in this
'_ease, including the covenant to budget and appropriate amounts necessary to make Rental Payments, shall be deemed
.o be duties imposed by law, and it shall be the duty of each and every public official of Lessee to take such action and do
such things as are requited by law in the performance of the official duty of such officials to enable Lessee to carry out and
perform the covenants and agreements in this Lease agreed to be carried out and performed by Lessee. This Lease is a
firm kale and not a non appropriation lease.
CaftnikLease.Page 4
1
Section 5.4. Legally Available Funds. The obligations of Lessee under this Lease, including its obligations to pay
.ie Rental Payments due with respect to any Equipment Group, in any Fiscal year for which this Lease is in effect, shall not
-onstitute an indebtedness of Lessee within the meaning of the Constitution and laws of the State. Rental Payments shall
be made from any funds legally available therefor, but nothing herein shall constitute a pledge by Lessee of any taxes or
other moneys, other than moneys lawfully appropriated from time to time by or for the benefit of Lessee for this purpose
and the proceeds or Net proceeds of the Equipment, to the payment of any Rental Payment or other amount coming due
hereunder.
Section 5.5. Rental Payments to be Unconditional. The obligation of Lessee to make Rental Payments or any
other payments required hereunder shall be absolute and unconditional in all events except as otherwise specifically
provided in this Lease. Notwithstanding any dispute between Lessee and Lessor or any other person, Lessee shall make
all Rental Payments and other payments required hereunder when due and shall not withhold any Rental Payment or
other payment pending final resolution of such dispute nor shall Lessee assert any right of set-off or counterclaim against
its obligation to make such Rental Payments or other payments required under this Lease. Lessee's obligation to make
Rental Payments or other payments during the Lease Term shall not be abated through accident or unforeseen
circumstances except as provided in Section 5.2.
ARTICLE V1: INSURANCE AND NEGLIGENCE
Section 6.1. Liability Insurance Upon ordering any Equipment Group and prior to receipt of possession of the
Equipment Group, Lessee shall take such measures as may be necessary to ensure that any liability for injuries to or death
of any person or damage to or loss of property arising out of or in any way relating to the condition or the operation of the
Equipment Group or any part hereof, is covered by a blanket or other general liability insurance policy maintained by
lessee, with a coverage limit of not less than $1,000,000 per occurrence. The Net proceeds of all such insurance shall be
applied toward extinguishment or satisfaction of the liability with respect to which any Net Proceeds may be paid.
Section 6.2. Property insurance. Upon receipt of possession of any Equipment Group, Lessee shall have an
.ssume the risk of loss with respect thereto. Lessee shall procure and maintain continuously in effect during the Lease
Term, all-risk insurance (including, if requested by Lessor, insurance against earth quakes), subject only to the standard
exclusions contained in the policy, in such amount as will be aft least sufficient so that a claim may be made for the full
replacement cost of any part of the Equipment damages or destroyed and to pay the applicable Purchase Option Price of
the Equipment. Such insurance may be provided by a rider to an existing policy or under a separate policy. Such
insurance may be written with customary deductible amounts acceptable to Lessor. The Net Proceeds of insurance
required by this Section shall be applied to the prompt repair, restoration or replacement of the Equipment, or to the
purchase of the Equipment, as provided in Section 6.8. Any Net Proceeds not needed for those purposes shall be paid
to Lessee.
Section 6.3. Worker's Compensation Insurance. If required by State Law, Lessee shall carry worker's
compensation insurance covering all employees on, in, near or about the Equipment, and upon request, shall furnish to
Lessor certificates evidencing such coverage throughout the Lease Term.
Section 6.4. Rental Interruption and Loss of Use and Occupancy Insurance. Lessee shall maintain or
cause to be maintained at its expense throughout the Lease Term, rental interruption insurance against Loss of use of the
Equipment or portions thereof with coverage equal to the maximum total Rental payments payable by Lessee for any
consecutive 24-month-period. The policy shall insure against abatement of Rental payments payable by Lessee resulting
from Lessee's loss of use of the Equipment or any substantial portion thereof and caused by any and all perils, either
insured or uninsured, including acts of God. Such insurance may be maintained in conjunction with or separate from any
other similar insurance carried by Lessee. The Net Proceeds of such insurance shall be payable to Lessor in amounts
proportionate to Lessee's loss of use of the Equipment and the corresponding rental abatement, if any, and shall
supplement Lessee's applicable Rental Payments, if any, during the restoration period in sufficient amount to make Lessor
whole.
,oection 6.5. Requirements for All Insurance. All insurance policies (or riders) required by this Article shall be
taken out and maintained with responsible insurance companies organized under the laws of one of the states of the
United States and qualified to do business in the State; and shall contain a provision that the insurer shall not cancel or
revise coverage thereunder without giving written notice to the insured parties at least ten (10) days before the
cancellation or revision becomes effective. Each insurance policy or rider required by this Article shall name Lessor as an
Caifomial-ease.Page 5
� II
additional insured party and loss payee and, if required by Lessor, shall include a lender's loss payable endorsement for
`ie benefit of Lessor. Prior to delivery of the Equipment to the Lessee, Lessee shall deposit with Lessor policies (and
iders and endorsements, if applicable) evidencing any such insurance procured by it, or a certificate or certificates of the
respective insurers stating that such insurance is in full force and effect. Before the expiration of any such policy or rider,
Lessee shall furnish to Lessor evidence that the policy has been renewed or replaced by another policy conforming to the
provisions of this Article.
Section 6.6. Self-Insurance. Notwithstanding the provisions of Sections 6.1 through 6.3, Lessee may elect to meet
the requirements of any such Section through self-insurance provided by a Qualified Self-Insurance Program (defined
below) having coverage limits equal to or greater than those specified in such Section. In such event, Lessee shall give
Lessor notice of such election and provide to Lessor a full, true and correct copy of all documents providing for the
establishment and administration of the Qualified Self-Insurance Program and shall execute an addendum to this Lease.
As used herein, 'Qualified Self-Insurance Program' means a program of self-insurance which has been established by
Lessee, or by Lessee and other political subdivisions of the State, pursuant to a State Law specifically authorizing the
program, and which is funded in a manner similar to commercial insurance or in a manner specified in such State Law.
Section 6.7. Lessee's Negligence, Lessee assumes all risks and liabilities, whether or not covered by insurance,
for loss or damage to any Equipment and for injury to or death of any person or damage to any property, whether such
injury or death be with respect to agents or employees of Lessee or of third parties, and whether such property damage be
to Lessee's property or the property of others, which is proximately caused by the negligent conduct of Lessee, its
officers, employees and agents. Lessee hereby assumes responsibility for, indemnifies Lessor against and agrees to
reimburse Lessor for all liabilities, obligations, losses, damages, penalties, claims, actions, costs and expenses (including
reasonable attorneys' fees) of whatsoever kind and nature, imposed on, incurred by or asserted against Lessor that in any
way relate to or arise out of a claim, suit or proceeding based in whole or in part upon the negligent conduct of Lessee, its
officers, employees and agents, or based upon the possession, use, operation, condition or storage of the Equipment
(unless caused by Lessor or its agents) to the maximum extent permitted by law.
;ection 6.8. Damage to or Destruction of Equipment. If after delivery of any Equipment to Lessee all or any
part of the Equipment is lost, stolen, destroyed or damages beyond repair, Lessee shall as soon as practicable after such
event either: (a) replace the same at Lessee's sole cost and expense with equipment of equal or greater value to the
Equipment immediately prior to the time of the loss occurrence, such replacement equipment to be subject to Lessor's
reasonable approval, whereupon such replacement equipment shall be substituted in this Lease and the other related
documents by appropriate endorsement or amendment or (b) pay the applicable Purchase Option Price of the Equipment
Group to which such Equipment belongs as set forth in Exhibit A. Lessee shall notify Lessor of which course of action it
will take within fifteen (15) days after the loss occurrence. If Lessee fails or refuses to notify Lessor within the required
period, Lessor may at its option, declare the applicable Purchase Option Price of the Equipment Group to which such
Equipment belongs set forth in Exhibit A immediately due and payable, and Lessee shall be obligated to pay the same.
The Net Proceeds of all insurance payable with respect to the Equipment shall be available to Lessee and shall be sued to
discharge Lessee's obligation under this Section. On payment thereupon of the Purchase Price Option with respect to
any Equipment Group, this Lease shall terminate with respect to such Equipment and Lessee thereupon shall become
entitled to such Equipment AS IS, WITHOUT WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR FITNESS FOR THE USE CONTEMPLATED
BY LESSEE, except that such Equipment shall not be subject to any lien or encumbrance created by or arising through
Lessor.
ARTICLE VII: OTHER OBLIGATIONS OF LESSEE
Section 7.1. Use: Permits. Lessee shall exercise due care in the installation, use, operation and maintenance of the
Equipment, and shall not install, use, operate or maintain the Equipment improperly, carelessly, in violation of any State
and Federal Law or for a purpose or in a manner contrary to that contemplated by this Lease. Lessee shall obtain all
permits and licenses necessary for the installation, operation, possession and use of the Equipment. Lessee shall comply
with all State and Federal Laws applicable to the installation, use, possession and operation of the Equipment, and if
,ompliance with any such State and Federal Law requires changes or additions to be made to the Equipment, such
changes or additions shall be made by Lessee at its expense.
Caktomialease.Page 6
Section 7.2. Maintenance of Equipment by Lessee Lessee shall, at its own expense, maintain, preserve and
iep the Equipment in good repair, working order and condition, and shall from time to time make all repairs and
.aplacements necessary to keep the Equipment in such condition. Lessor shall have no responsibility for any of these
repairs or replacements.
Section 7.3. Taxes Other Governmental Sharges and Utility Charges Except as expressly limited by this
Section, Lessee shall pay all taxes and other charges of any kind which are at any time lawfully assessed or levied against
or with respect to the Equipment, the Rental Payments or any part thereof, or which become due during the Lease Term,
whether assessed against Lessee or Lessor. Lessees shall also pay when due all gas, water, steam, electricity, heat,
power, telephone, and other charges incurred in the operation, maintenance, use, occupancy and upkeep of the
Equipment, and all special assessments and charges lawfully made by any governmental body for public improvements
that may be secured by a lien on the Equipment; provided that with respect to special assessments or other governmental
charges that may lawfully be paid in installments over a period of years, Lessee shall be obligated to pay only such
installments as are required to be paid during the Lease Term as and when the same become due. Lessee shall not be
required to pay any federal, state or local income, inheritance, estate, succession, transfer, gift, franchise, gross receipts,
profit, excess profit, capital stock, corporate, or other similar tax payable by Lessor, its successors or assigns,unless such
tax is made in lieu of or as a substitute for any tax, assessment or charge which is the obligation of Lessee under this
Section.
Section 7.4. Advances. If Lessee shall fail to perform any of its obligations under this Artice, Lessor may, but shall not
be obligated to, take such action as may be necessary to cure such failure, including the advancement of money, and
Lessee shall be obligated to repay all such advances on demand, with interest at the rate of 18% per annum or the
maximum rate permitted by law, whichever is less, from the date of the advance to the date of repayment.
ARTICLE VIII:L TITLE; SECURITY INTEREST: LIENS
section 8.1. Title. During the Lease Term with respect to any Equipment Group, and so long as Lessee is not in
afault under Article XII, legal title to such Equipment Group and any and all repairs, replacements, substitutions and
modification to it shall be in Lessee. Upon termination of this Lease with respect to any Equipment Group pursuant to
Article XII, full and unencumbered legal title to such Equipment Group shall pass to Lessor, and Lessee shall have no
further interest therein. In either of such events, Lessee shall execute and deliver to Lessor such documents as Lessor
may request to evidence the passage of legal title to such Equipment Group to Lessor and the termination of Lessee's
interest therein, and upon request by Lessor shall deliver possession of the Equipment Group to Lessor in accordance
with Section 12.3. Upon termination of this Lease with respect to any Equipment Group through exercise of Lessee's
option to purchase pursuant to Article X or through payment by Lessee of all Rental Payments and other amounts
hereunder, Lessor's security or other interest in such Equipment Group shall terminate, and Lessor shall execute and
deliver to Lessee such documents as Lessee may request to evidence the termination of Lessor's security or other
interest in such Equipment Group.
Section 8.2. Security Interest. Lessee grants to Lessor a continuing, first priority security interest in and to the
Equipment, all repairs, replacements, substitutions and modifications thereto or thereof made pursuant to Section 8.5 and
all proceeds of the foregoing in order to secure Lessee's payment of all Rental Payments due during the Lease Term and
the performance of all other obligations herein to be performed by Lessee. Lessee will join with Lessor in executing such
financing statements or other documents and will perform such acts as Lessor may request to establish and maintain a valid
first lien and perfected security interest in the Equipment. If requested by Lessor, Lessee shall conspicuously mark the
Equipment with appropriate lettering, labels or tags, and maintain such markings during the Lease Term, so as clearly to
disclose Lessor's security interest in the Equipment.
Section 8.3. Liens. During the Lease Term, Lessee shall not, directly or indirectly, create, incur, assume or suffer to
exist any mortgage, pledge, lien, charge, encumbrance or claim on or with respect to the Equipment, other than the
respective rights of Lessor and Lessee as herein provided and Permitted Encumbrances. Except as expressly provided
;n Section 7.3 and this Article, Lessee shall promptly, at its own expense, take such action as may be necessary duty to
ischarge or remove any such mortgage, pledge, lien, charge, encumbrance or claim if the same shall arise at any time.
Lessee shall reimburse Lessor for any expense incurred by Lessor in order to discharge or remove any such mortgage,
pledge, lien, charge, encumbrance or claim.
Calfomial-wse.Page 7
i
Section 8.4. installation of Lessee's Egui2ment. Lessee may at any time and from time to time, in its sole
'iscretion and at its own expense, install other items of equipment in or upon the Equipment, which items shall be
.jentified by tags or other symbols affixed thereto as property of Lessee, shall remain the sole property of Lessee, and
may be modified or removed by Lessee at any time provided that Lessee shall repair and restore any and all damage to the
Equipment resulting from the installation, modification or removal of any such items.
Section 8.5. Modification of Equipment= Lessee shall, at its own expense, have the right to make repairs to the
Equipment, and to make repairs, replacements, substitutions and modifications to all or any of the parts thereof. All such
work and any part or component used or installed to make a repair or as a replacement, substitution or modification, shall
thereafter comprise part of the Equipment and be subject to the provisions of this Lease. Such work shall not in any way
damage the Equipment or cause it to be used for purposes other than those authorized under the provisions of State and
Federal Law or those contemplafted by this Lease; and the Equipment, upon completion of any such work shall be a value
which is not less than the value of the Equipment immediately prior to the commencement of such work.
Section 8.6. Personal Property, The Equipment is and shall at all times be and remain personal property
notwithstanding that the Equipment or any part thereof may be or hereafter become in any manner affixed or attached to or
embedded in or permanently rested upon real property or any building thereon or attached in any manner to what is
permanent by means of cement, plaster, nails, bolts, screws or otherwise.
I ARTICLE IX: WARRANTIES
Section 9.1. Selection of Equipment The Equipment and the Contractor have been selected by Lessee, and
Lessor shall have no responsibility in connection with the selection of the Equipment, its suitability for the use intended
by Lessee, the acceptance by the Contractor or its sales representative of the order submitted, or any delay or failure by
the Contractor or its sales representative to manufacture, deliver or install the Equipment for use by Lessee. Lessee
authorizes Lessor to add the serial number of the Equipment to Exhibit A when available.
.ection 9.1.2 Installation and Maintenance of Equipment. Lessor shall have no obligation to install, erect,
test, inspect, service or maintain the Equipment under any circumstances, but such action shall be the obligations of
Lessee or the Contractor.
Section 9.3. Contractor's Warranties. Lessor hereby assigns to Lessee for and during the Lease Term, all of its
interest, if any, in all Contractor's warranties and guarantees, express or implied, issued on or applicable to the Equipment,
and Lessor hereby authorizes Lessee to obtain the customary services furnished in connection with such warranties and
guarantees at Lessee's expense.
Section 9.4. Patent Infringement. Lessor hereby assigns to Lessor for and during the Lease Term, all of its
interest, if any, in patent indemnity protection provided by any Contractor with respect to the Equipment. Such
assignment of patent indemnity protection by Lessor to Lessee shall constitute the entire liability of Lessor for any patent
infringement by Equipment furnished pursuant to this Lease.
Section 9.5. Disclaimer of Warranties. THE EQUIPMENT IS DELIVERED AS IS, AND LESSOR MAKES NO
WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, AS TO THE VALUE, DESIGN, CONDITION,
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR FITNESS FOR THE USE CONTEMPLATED
BY LESSEE OF THE EQUIPMENT, OR ANY OTHER REPRESENTATION OR WARRANTY WITH RESPECT TO THE
EQUIPMENT, IN NO EVENT SHALL LESSOR BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES IN
CONNECTION WITH OR ARISING OUT OF THIS LEASE OR THE EQUIPMENT OR LESSEE'S USE OF THE
EQUIPMENT.
ARTICLE X: OPTION TO PURCHASE
Section 10.1. When Available. Lessee shall have the option to purchase Lessor's interest in any Equipment Group
n any Payment Date relating thereto for the then applicable Purchase Option Price set forth in the page of Exhibit A
relating thereto, but only if Lessee is not in default under this Lease, and only in the manner provided in this Article.
Cakfomiai-ease.Page 8
ection 10.2. Exercise of 0 lion. Lessee shall give notice to Lessor of its intention to exercise its option with
.aspect to any Equipment Group not less than thirty (30) days prior to the Payment Date on which the option is to be
exercised and shall deposit with Lessor on the date of exercise an amount equal to all Rental Payments and any other
amounts relating to such Equipment Group then due or past due (including the Rental Payment relating thereto due on
the Payment Date on which the option is to be exercised) and the applicable Purchase Option Price set forth in the
Equipment Schedule relating thereto. The closing shall be on the Payment Date on which the option is to be exercised at
the office of Lessor.
Section 10.3. Release of Lessor's Interest. Upon exercise of the purchase option with respect to any
Equipment Group by Lessee, Lessor shall convey or release to Lessee all of its right, title and/or interest in and to the
Equipment Group by delivering to Lessee such documents as Lessee deems necessary for this purpose.
ARTICLE XI: ASSIGNMENT, SUBLEASING, MORTGAGING AND SELLING
Section 11.1. Assignment by Lessoc Lessor shall not assign its obligations under this Lease, and no purported
assignment thereof shall be effective. All of Lessor's right, title and/or interest in and to any Equipment Schedule,
Equipment Group, the Rental Payments and other amounts due with respect thereto, and the right to exercise all rights
under this Lease relating to such Equipment Schedule and Group may be assigned and reassigned in whole or in part
tone or more assignees or sub assignees by Lessor at any time, without the consent of Lessee. No such assignment shall
be effective as against Lessee unless and until the assignor shall have filed with Lessee a copy or written notice thereof
identifying the assignee. During the Lease Term, Lessee shall keep a complete and accurate record of all such
assignments. In the event Lessor assigns participations in its right,title and/or interest in and to any Equipment Schedule,
Equipment Group, the Rental Payments and other amounts due with respect thereto, and the rights granted under this
Lease relating thereto, such participants shall be considered to be Lessor with respect to their participated shares thereof.
Cection 11.2. Assignment and Subleasing by Lessee Neither this Lease nor Lessee's interest in an
.quipment Group may be sold, assigned, subleased, transferred, pledged or mortgaged by Lessee without the written
consent of Lessor. However, Equipment may be subleased by Lessee to a State agency or other political subdivision for
the performance of essential government services by such agency or subdivision without the consent of Lessor, provided
that: (a) this Lease and the obligation of Lessee to make Rental Payments hereunder, shall remain obligations of Lessee
and (b) the sublessee assumes the obligations of Lessee under the Lease with respect to the Equipment subleased.
Lessee shall immediately furnish to Lessor a true and complete copy of such sublease. No sublease shall cause the
interest component of the Rental Payments due with respect to the Equipment Group to become includable in gross
income of the recipient for federal income tax purposes.
ARTICLE XII: EVENTS OF DEFAULT AND REMEDIES
Section 12.1 Events of Default Defined. The following shall be `events of default' under this Lease with respect
P to any Equipment Group and the Equipment Schedule relating thereto, and the terms "events of default" and "default"
shall mean, whenever they are used in this Lease, with respect to any Equipment Group, any one or more of the following
events:
(a) Failure by Lessee to pay any Rental Payment or other payment required to be paid under this Lease with
respect to any Equipment Group at the time specified herein and the continuation of said failure for a period of three (3)
days.
(b) Failure by Lessee to observe and perform any covenant, condition or agreement on its part to be
observed or performed with respect to any Equipment Group, other than as referred to in Clause (a) of this Section, for a
period of thirty (30) days after written notice specifying such time prior to its expiration; provided, however, if the failure
stated in the notice cannot be corrected within the applicable period. Lessor will not unreasonably withhold its consent to
in extension of such time if corrective action is instituted by Lessee within the applicable period and diligently pursued
,ntil the default is corrected.
(c) The determination by Lessor that any representation or warranty made by Lessee in this Lease was untrue
in any material respect upon execution of this Lease or any Equipment Schedule.
CaifomiaLease.Page 9
(d) The filing by Lessee of a voluntary petition in bankruptcy, or failure by Lessee promptly to lift any
<ecution, garnishment or attachment of such consequence as would impair the ability of Lessee to carry on its
,overnmental functions of adjudication of Lessee as a bankruptcy, or assignment by Lessee for the benefit of creditors, or
the entry by Lessee into an agreement of composition with creditors, or the approval by a court of competent jurisdiction of
a petition applicable to Lessee in any proceedings instituted under the provisions of the United States Bankruptcy Code,
as amended, or under any similar acts which may hereafter be enacted.
An event of default with respect to one Equipment Group shall not constitute an event of default with respect to any other
Equipment Group.
Section 12.2. Remedies on Default Whenever any event of default referred to in Section 12.1 shall have
happened and be continuing with respect to any Equipment Group, Lessor shall have the right, at its option and without
any further demand or notice,to take one or any combination of the following remedial steps:
(a) Lessor, with or without terminating this Lease with respect to such Equipment Group, may collect each
installment of Rental Payments as it becomes due and payable in accordance with the related Equipment Schedule.
(b) Lessor, with or without terminating this Lease with respect to such Equipment Group, may repossess the
Equipment Group by giving Lessee written notice to deliver such Equipment Group to Lessor, whereupon Lessee shall
' return the Equipment Group in the manner provided in Section 12.3; or in the event Lessee fails to do so within ten (10)
days after receipt of such notice, Lessor may enter upon Lessee's premises where the Equipment Group is kept and take
possession of the Equipment Group and charge Lessee for costs incurred in repossessing the Equipment Group,
including reasonable attorneys' fees. Lessee hereby expressly waives any damages occasioned by such repossession.
Notwithstanding the fact that Lessor has taken possession of the Equipment Group, Lessee shall continue to be
responsible for the Rental Payments due with respect thereto as and when such Rental payments become or would have
become due and payable. If this Lease has not been terminated with respect to such Equipment Group, Lessor shall
•eturn the Equipment to Lessee at Lessee's expense when the event of default is cured.
(c) If Lessor takes possession and disposes (whether by sale, lease or otherwise) of such Equipment Group
or any portion thereof, Lessor shall apply the proceeds of any such disposition to pay the following items in the following
order: (i) all costs incurred in securing possession of the Equipment Group; (ii) all expenses incurred in completing the
disposition; and (iii) the balance of any Rental Payments with respect thereto as and when such Rental Payments would
have become due and payable. Any disposition proceeds remaining after the requirements of Clauses (i), (ii) and (iii) have
been met shall be paid to Lessee.
(d) By action pursuant to the California Code of Civil Procedure, or as otherwise provided by law, for the
issuance of a writ of mandamus enforcing, for the entire balance of the Lease Tern, duty of Lessee to appropriate and
take all other administrative steps necessary for the making of Rental Payments.
(e) Lessor may take any other remedy available at law or in equity with respect to such event of default,
including (without limitation) those requiring Lessee to perform any of its obligations hereunder or to pay any moneys due
and payable to Lessor hereunder, provided Lessor shall have no right to accelerate Rental Payments or otherwise declare
any Rental payments not then in default to be immediately due and payable.
Section 12.3. Return of Equipment. Upon the expiration or termination of this Lease with respect to any
Equipment Group prior to the payment of all Rental Payments in accordance with Exhibit A, Lessee shall return such
Equipment Group to Lessor in the condition, repair, appearance and working order required in Section 7.2, in the following
manner as may be specified by Lessor: (a) by delivering the Equipment Group at Lessee's cost and expense to such
place within the State as Lessor shall specify; or (b) by loading such portions of the Equipment Group are considered
movable at Lessee's cost and expense, on board such carrier as Lessor shall specify and shipping the same, freight
prepaid, to the place specified by Lessor. If Lessee refuses to return the Equipment Group in the manner designated,
i.essor may repossess the Equipment Group and charge to Lessee the costs of such repossession nor pursue any
amedy described in Section 12.2.
CaifomiaLease.Page 10
Section 12.4. No Remedy Exclusive No remedy conferred upon or reserved to Lessor by this Article is intended
be exclusive and every such remedy shall be cumulative and shall be in addition to every other remedy given under this
ease. 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 and power may be exercised from time to time and as often
as may be deemed expedient by Lessor or its assignee.
Section 12.5. Agreement to Pay Attorneys' Fees and Expenses. In the event either parry to this Lease
should default under any of the provisions hereof and the non defaulting parry should employ attorneys and/or incur other
expenses for the collection of moneys or for the enforcement of performance or observance of any obligation or
agreement on the part of the defaulting parry herein contained, the defaulting party agrees that it will on demand therefor
pay to the non defaulting party the reasonable fees of such attorneys and/or such other reasonable expenses so incurred
by the non defaulting party.
Section 12.6. Late Charge. Whenever any event of default referred to in Section 12.1, Clause (a) shall have
happened and be continuing with respect to any Equipment Group, Lessor shall have the right, at its option and without
any further demand or notice, to require a late payment charge for each thirty (30) day period or part thereof during which
such event of default occurs equal to four percent (4%) of the delinquent amount, and Lessee shall be obligated to pay
the same immediately upon receipt of Lessor's written invoice therefor; provided, however, that this Section shall not be
applicable if or to the extent that the application thereof would affect the validity of this Lease.
ARTICLE XIII: ADMINISTRATION PROVISIONS
Section 13.1. Notices. All notices, certificates, legal opinions or other communications hereunder shall be sufficiently
given and shall be deemed given when delivered or deposited in the United States mail in registered form with postage
fully prepaid to the addresses specified on the execution page hereof; provided that Lessor and Lesseid, by notice given
hereunder, may designate different addresses to which subsequent notices, certificates, legal opinions or other
communications will be sent.
Section 13.2. Financial Information. During the Lease Temp, Lessee annually will provide Lessor with current
financial statements, budgets, proof of appropriation for the ensuing Fiscal year and such other financial information
relating to the ability of Lessee to continue this Lease as may be requested by Lessor or its assignee.
Section 13.3. Binding Effect. This Lease shall inure to the benefit of and shall be binding upon Lessor and Lessee
and their respective successors and assigns.
Section 13.4. Severability, In the event any provision of this Lease shall be held invalid or unenforceable by any
court of competent jurisdiction, such holding s6dli no invalidate or render unenforceable any other p.cvicic: `�crcof.
Section 13.5. Amendments Changes and Modifications This Lease may be amended or any of its tams
modified only by written document duly authorized, executed and delivered by Lessor and Lessee.
Section 13.6. Captions. The captions or headings in this Lease are for convenience only and in no way define, limit
or describe the scope or intent of any provisions, Articles, Sections or Clauses of this Lease.
Section 13.7. Further Assurances and Corrective Instruments. Lessor and Lessee agree that they will, from
time to time, execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered, such
supplements hereto and such further instruments as may reasonable be required for correcting any inadequate or
incorrect description of the Equipment hereby leased or intended so to be, or for otherwise carrying out the expressed
intention of this Lease.
Section 13.8. Execution in Counterparts. This Lease may be simultaneously executed in several counterparts,
each of which shall be an original and all of which shall constitute but one and the same instrument.
Section 13.9. Applicable Law, This Lease shall be governed by and construed in accordance with the laws of the
State of California.
CaftmiaLeaee.Page t t
Section 13.10. Financing Statement. A carbon, photographic or other reproduction of this Lease or of any
lancing statements signed by Lessee is sufficient as a financing statement in any state to perfect the security interests
.granted in this Lease.
Section 13.11. Usury. It is the intention of the parties hereto to comply with any applicable usury laws; accordingly, it is
agreed that, notwithstanding any provisions to the contrary in this Lease, in no event shall this Lease require the payment
or permit the collection of interest or any amount in the nature of interest or fees in excess of the maximum amount
permitted by applicable law. Any such excess interest or fees shall first be applied to reduce Principal, and when no
Principal remains, refunded to Lessee. In determining whether the interest paid or payable exceeds the highest lawful
rate, the total amount of interest shall be spread through the Lease Term so that the interest is uniform through such term.
ARTICLE XIV: ADDENDA TO LEASE
Section 14.1. Addenda. The addendum or addenda checked on the execution page hereof are attached hereto and
made a part hereof.
Date of Lease:
Fiscal Year Commencement Date:
Fiscal Year Ending Date:
Addenda. The following addendum or addenda which have been checked are attached hereto and made a part of this
Lease:
Addendum for Escrow Funding
Addendum for Self-Insurance
Addendum for Environmental Provisions
Special Addendum
There are no addenda to this Lease.
IN WITNESS WHEREOF, Lessor has caused this Lease to be executed in its corporate name by its duly
authorized officer, and Lessee has caused this Lease to be executed in its name by its duly authorized officer.
LESSEE: LESSOR: First Public Finance Corporation
5800 E. Skelly Dr., Suite 1200
Tulsa, Oklahoma 74135-6416
By: By.
Title: Title:
Date: Date:
CardomiaLease.Page 12
SEP-13-'94 TUE 14:46 lU: 1 CL ivV• �_
FIRST PLJL/C FINANCE CORF JRATION
A Capital Acquisition Company
5800 East Skelly Drive, Suite 1200
Tulsa, Oklahoma, U.S.A. 74136-6416
918-627.6928, FAX 918-663-4066 or 1-800-364.9933
FAX # 909-384-6464
PL =ASMDPLIVER ASAP
Thank VOti
TOTAL PAaSS INCLUDING TRANSMITTAL: 1
TO: DEAN MEECH - City of San Bernardino, California
FROM: Cathy Flemming
DATE; September 13, 1994
RE: Lease Language Changes
I left a message earlier today; below are the suggested changes (underscored portions),
please let me know what Change is requested regarding page 7, 18% per annum Interest on
advance payments.
(page 4 of lease):
section 5.03. Non-ancroeri i n. In v I r f LassAe su kleru
l�ntaLparnents renulr�I4�G ,Ilan J,g.�ee's next
ts[II11nato this Anr ngnt Ao of the end of its than currerl ffacaLgamiod
afxt{I rtat ]ice to env the nee al Payimintz bavo,^.d SiisJl=AUAIE, Las4ee agrees to slue Le"Or Wrtn
notice of s "lent least sixty t6g) days Wor to tr&1ho then nmrartt tle01 VOL, 11 lk
taminate d ungear rya■,12=0 6,011 e3sQi r --- tii.Sleltver the �a.::�^_�-;erL to Leeso�8��1�ion
I n ated-4 I-macy. at-L.W12o's solo cost and e2werise
as Lmor maY reasonably renuM
Section 12.1(a) (page 9 of lease):
(a) ralieae by Lo"aa to pay emy nemal r'aymerd ar other pcir"em Pequlpad to bo paid undor thlo -
Lease with respect to any Equipment Group at the time specified herein and the continuation of said failure for a
period of-&a=dwp.
Thanksl
Post-It-Fax Note 7871 Date p;9or►
lb _ S Fran
CoJDW. Co.
Phone f Phung•
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Attachment "A"
INCORPORATED
Tomorrow's Waste SolutionsTodayc "
August 11, 1994
Mr. Kevin Barnes
Refuse Superintendent
City of San Bernardino
182 S. Sierra Way
San Bernardino, CA 92408-1454
FAX (909)384-5013
Dear Kevin:
I want to thank you for the opportunity which you have afforded to Toter Incorporated to work
with the City of San Bernardino on its refuse containers. We have enjoyed serving your needs over
the last several years and look forward to working with you again as you move forward with your
automated collection programs.
Toter would be pleased to offer the City of San Bernardino the opportunity to buy 101 gallon
automated and universal refuse containers from the City of Bakersfield bid process under which
Toter was recently awarded a contract for 26,000 refuse containers. Bakersfield is using the same
model container which the City of San Bernardino has purchased from Toter over the last several
years, the Toter Model #60001. I have attached specifications on this product (as the bid to the
City of Bakersfield) as well as a copy of the Bakersfield specifications. While the City of
Bakersfield purchased these containers in tan color,we would be happy to supply them to the City
of San Bernardino in the black color (or green) which you utilize.
The price on these units is $38.00 each plus $250 assembly and distribution plus .75c per container
delivery charges. Sales would be as applicable in San Bernardino County. This offer is for
immediate delivery on these products.
Thank you again. If you have questions on this information, please feel free to contact me at your
convenience.
Warmest Regards,
TOTERINCORPORATED
Skip L n
Vice President, Sales
Western Division
SL:sam
cc: Cathy Thiebaud
Sherry Kilby
pc:\sales\bames.811
841 Meacham Road•PO Box 5338•Statesville NC 28677.704-872-8171 •Fax:704-878-0734
1980 Industrial Way • PO Box 7 • Sanger CA 93657 • 209-875-7130 •Fax:209-875-7137
IN)OL D-
IQUVIUOL
PURCHME ORDER Attachment "B"
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