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HomeMy WebLinkAbout26-Purchasing CIT'y OF SAN BERNo-DINO - REQUEST Fa' COUNCIL ACTION From: Dean R. Meech, Purchasing Agent Su~~: Master Contract for Municipal Leasing Corporation Dept: Purchasing Dau: November 13, 1991 Synopsis of Previous Council action: None Recommendad motion: Adopt Resolution De.. R. Mm' CiZ- ~. ~ Si nature Contact person: Dean Meech, Purchasing Agent Phone: 384-5085 N/A Supporting data attached: Yes Ward: FUNDING REQUIREMENTS: Amount: N I'" Source: (Acct. No.) (Acct. DescriPtion) Finance: ()~ K\r. Council Notes: 75-0262 Agenda Item No o2..h CITY OF SAN BERNOtDINO - REQUEST Fer COUNCIL ACTION STAFF REPORT The proposed action is for adding another Lease Purchase Master Contract in place wi th the City of San Bernardino. This adds to our library of financing partners already approved and in place, reducing processing time in Lease Purchase Transaction. The vendor for Lease Purchase Master Contract Council approval is: Municipal Leasing Corporation 11150 Sunset Hills Road Suite 240 Reston, Virginia 22090 ~~-f Dean Meech, Purchasing Agent 75-0264 L o o 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. RESOLUTION OF THE CITY OF SAN BERNARDINO ACCEPTING LEASE PURCHASE MASTER CONTRACT FOR MUNICIPAL LEASING CORPORATION FOR THE FURNISHING OF LEASE PURCHASE FINANCING. BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. That Lease Purchase Master Contract from Municipal Leasing Corporation, a copy of which is attached hereto and incorporated herein as Exhibit "A", is accepted by the City of San Bernardino for furnishing of Lease Purchase Financing; pursuant to this determination, the Master lease Purchase Contract award shall only be effective upon the execution an Agreement by the Mayor of the City of San Bernardino. SECTION 2. This Agreement shall not take effect until fully signed and executed by both parties. The City shall not be obligated hereunder unless and until the Agreement is fully executed and no oral agreement relating thereto shall be implied or authorized. The authorization to,execute the above referenced agreement is rescinded if the parties to the agreement fail to execute it within sixty (60) days of the passage of this resolution. SECTION 3. No transactions shall be initiated under the Master Lease contained in this agreement without the approval of the Mayor and Common Council. / / / / / / / / / / / / / / / / / / / / / / / / 11-13-91 -1- ----~."".."^".... ....- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 o o RESOLUTION OF THE CITY OF SAN BERNARDINO ACCEPTING LEASE PURCHASE MASTER CONTRACT FOR MUNICIPAL LEASING CORPORATION FOR THE FURNISHING OF LEASE PURCHASE FINANCING. SECTION 4. The City shall not be obligated hereunder until a lease purchase schedule transaction for material, equipment, supplies or contracted services is executed with the vendor under this contract. SECTION 5. The Purchasing Agent, Director of Finance and the City Attorney are hereby authorized to execute such documents as are necessary for the administration of this transaction. I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a meeting thereof, held on the day of , 199 , by the following vote, to wit: Council Members: AYES NAYS ABSTAIN ABSENT ESTRADA REILLY HERNANDEZ MAUDSLEY MINOR POPE-LUDLAM MILLER City Clerk 11-13-91 -2- o o 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION OF THE CITY OF SAN BERNARDINO ACCEPTING LEASE PURCHASE MASTER CONTRACT FOR MUNICIPAL LEASING CORPORATION FOR THE FURNISHING OF LEASE PURCHASE FINANCING. The foregoing resolution is hereby approved this day of , 199 W. R. Holcomb, Mayor City of San Bernardino Approved as to form and legal content: James F. Penman, City nttorney .1' I 11-13-91 -3- o o MUNICIPAL LEASING CORPORATION ==~~--- october 28, 1991 Mr. Dean Meech City of San Bernardino purchasing Department City Hall, 4th Floor San Bernardino, CA 92418 Dear Mr. Meech: Enclosed is a sample Conditional Sale Agreement that has been revised in accordance with your attorney's instructions. Please call Jerry Jeremiah at (619) 475-1527 if you have any questions or need further information. Sincerely, , / ::.~i '1."~.'f."'.I~ "'.. .l' ., i. ..... ~.". ......."..-..,..- ."'- .,.../ .~'..'- . Kathleen Andrews Market Support Manager " ., 11150 SUNSET HILLS ROAD . SUITE 240 . REST ON. VIRGINIA 22090 (703) 834-5710 FAX: (703) 834.5718 o CONDITIONAL SALE AGREEMQT NO. 108 THIS CO:-:DmO:-:AL SALE AGREE.'I4E!'<'T :-10. lOB dated as of October 28, 1991 by and between Municipal Leasing Corpollltion ("Selle"), a Virginia corporation whose principal place of business is 11150 Sunset Hills Road. Suitt 240. RestoR. Virzinia 22090 and the Oty of San Bernardino ("Purchaserd1. Purchaser is located at: Qty of San Bernardino, 300 Nonh D Street. San Bernardino, CA 92418. WHEREAS Seller desires to sell the Equipment. as hereinafter defined. and purchaser agrees to purchase the Equipment and to perform under the Conditional Sale Agreement Terms and Conditions 0{91) attached hereto and made a pan hereof, the panics hereby agree as follows: _ The foregoing addresses shall be used for all correspondence and notices ftom one pany to the other and may be changed only by notifying the other patty in writing. All notices shall be sent by registered mail. return receipt requested. Purchaser is a Political Subdivision of the State of California ("State"). Purchaser's Fiscal Period is from July 1 to June 30. The name and title of the Purchaser's Authorized Signatory is The name and title of the Seller's Authorized Signatory is This Conditional Sale Agreement consisu of this signature page ("Page 1"). the Conditional Sale Agreement Terms and Conditions (1{91) consisting of 10 pages numbered 2 to 11. and the Riders lisled. below, all of which are intended toplher to coulitute ODe insuumenL Each traasaction hereunder shai be evidenced by the panies' execution of a Schedule. as herein defined. which. together with the Exhibits annexed thereto, shall constitute a separate agreement between purchaser and Seller. By its execution below. Purchaser rcprcscnu that (i) it has read and undemands the attached Conditional Sale Agreement Terms and Conditions (1/91 ~ and Riders listed below and (ii) as of the date of execution hereof. aU of the cove:nants, warranties and representations set fanh herein apply with full force and effect. Annexed hereto are the following Riders. the tenns and conditions of which shall ~m in the C'iCDl of any conf1ict or inconsistency with the Condition: Sale Agreement Terms and Conditions (1{91): none applicable. IN WITNESS WHEREOF. the panics hereto have caused this Conditional Sale Agreement No. lOB to be executed by 'heir duly authorized representatives as of the day and year fim written above. MUNICIPAL LEASING CORPORATION BY: :-lAME: TITI.E: DATE: CITI' OF SAN BERNARDINO BY: :-lAME: TITI.E: DATE: 1 4!L o o CONDmONAL SALE AGREEMENT TERMS AND CONDmONS (1/91) Agreement No. lOB 1.0 Definitions For purposes of the Agreement and the Transaction Documents. the following defmitions will apply: "Acceptance Date" is the date upon which Purehaaer. after oppotnlnity for inspection as provided herein. cenif'1CI the Equipment 10 be &ceepted and in conformity with the criteria set forth in the Acceptance Certificale auac:hed hereto. Unless otherwise ....blished in writing be.....n lhe parties herelo. Purehaaer (i) agrees lhal reasonable opportunity for inspection shall be r... (5) working days, inclusive. from the date the Equipmenl is _red: and (ii' agrees to deliver the Acceptance CerrirlCBte. duly compleled and executed. promptly upon acceptance of the Equipment, or to notify Seller of rejection oi lhe Equipmenl wilhin such r...-day inspection period, Upon delivery of the Acceptance Cenif'ate or failure of Pu_r to notify Seller of rejeclion as set forth above. it shall be conclusively presumed for the purposes of the Agreement that the Equipment meets Purm-r's requirements in all substantial respects. 'Agreement" consists of (i) a Schedule and lhe Exhibits annosed therelo and (ll) these Conditional Sale Agreement Terms and ConditionS and any Riders specified on the signature page ("Page I") hereof. which together arc incorporated into the Schedule. 'Assignee" means the cnlity to whom, as further described in Section 9.0 hereof, the rights, title and interest of Seller in, to and under the Agreemenl ma be transferred and its assignee. "Assignmenl Agreement" means lhe Assignment Agreement which. in connection with the ......lion of the Agreement. Seller may enter inlO wilh lhe Assignee. pursuant 10 which Seller may assign all of its right. title and interest in and to tbe ApeemCnt. including, withoullinlitation, Pu_is obliplion hereunder to make the Payments for the Equipment under the Agreement. and ......1'.....,.. ApeemCDts transferring the rights and inlereStS Assignee in the Agreement to subsequent Assignees. as funher described in Section 9.0 aDd 9.1 hereOf. "AUlhorized Signatoty' means the person whose tide is specified as "Authorized Signatory" on Pap 1 hereof. or tbe duly authorized designee thereof. .Commencement Date- means tbe Commencement Date set fonh in each Schedule aDd upon which the tcl'ID of such Schedule bcginL "Equipmenl' means lhe property described on Exhibil A to lhe Schedule. If serial numbers are not initial1y provided. PU=-< hereby authorizes SeUe 10 inseft. when available. actual serial numbers on Seller's copy of Exhibit A to tbe Schedule. 'Equipment COSts" means aU costs of paymenl of. or reimbursement for. acquisition and financing of the Equipment. including but not I1mited 10. admlOis","ive costs and capital expenditures related to financing payments, initial fees and cbugCI of the Assignee. financing discounts. lepl fees and charges of Scller or Assignee. financial and other professional consulting f.... costs of raling apncies or c:rcdit ratings. fees for ......tion. transportatl< and safekeeping of assignment documents and chargeS and fees in connection with the foreJOiDl. "Exhibit" means one or more Exhibits auac:hed to and incorporated into each Schedule entered into by and ~ Purehaaer and Seller. "FISCal Period" means the period 01 time. commencing on the dates set forth on Pap 1 hereof. over whicb funds arc rcguIarlyand periodically appropriated by or for pUfChaser. "Payments' means all Payments per period payable by Purehaaer pursuant to the provisions of the Agreement during tbe Term and in consideration 0 Ihe right of purchaaer 10 use the Equipmenl duling lhe lhen current portion of the Term. Payments shaI1 be payable by Pu_r to Seller in the amounts and at the times during the Tenn u set fonh on Exhibit B to the Schedule. .Purchase Price" means. as of any date of calculation. the amount calculated in accordanCe with SectioD 8.1 baeOf, wbich Purctwer may pay to Seller of such date in order to purchase the Equipment. "Purehaaer" means the enlity described as "Purehaaer" on Pap 1 hereof. its successors and assigIts, which is organiIed and csisting under and by virtu lhe aUlhorizing statUle or constitutional provisions of the State as so designated and which is purchasing the Equiptncnt from Seller under the ProYis' of the Agreement. 2 o o "Schedule" means each Schedule. substantially in the form of the Schedule attached hereto, entered into by and berween Pu_r and Seller and which incorporates these Conditional Sale Apeemoot Terms and Conditions and any Rider .hereto. The Schedule describes. among other rhinp, the Equipment and payment tenns for each transaction. "Seller" means (i) Municipal Leasing Corporation. which is a corpora.ion organized and existing under and by vinue of the laws of .he Commonwealth of Virginia. acnng as Seller of the Equipmen. hereunder: (ii) any sulviving. resulting or .ransferee corporation; and (iii) except where the conte.. requires otherwise. Assign~ and its subsequent assigns. '1'ransaction Documents" means the Agreement and the documents required to be delivered by purchaser under Section 5.6 hereof. '1'erm. means the period of time from the Commencement Date untilterminalion of the Agreement as set forth in Section 3.0 hereof. "Termination Date" means the date of termination under Section 3.0 hereof. %.0 Implementation For purposes of construing a transaction as an integrated agreement. and for the purpooes of Section 9.0 hereof. the following shall be considered a .ing. transaction and a legal and binding agreement: (a) These Conditional Sale Agreement Terms and Conditions including any Rider specified on Pa&" I hereof; (b) A Schedule incorporating the Conditional Sale Agreement Terms and Conditions and any Rider tbereto; (c) The Exhibits specified on tbe Schedule and incorporated therein. In the event of conflict or inconsis..ncy berween tbe above listed documents. tbe terms and conditions of each Agreement sball be determined by iP'in, precedence filStto tbe Schedule. then to tbe Exhibits. then to any rider listed on Page 1. and fmally to tbcse Conditional Sale Agreement Terms and Conditions. 3.0 Termination of Term The Term and the Agreement will terminate upon the earliest of any of the following events: (a) Purchaser's compliance with Section 8.0 herein by reason of failure of appropriation of adequa.. funds to pay the Payments due during purchasers next succeeding F'15C81 Period; (b) Payment by purchaser under the provisions of Section 8.1 through 8.3 inclusive. of the Apeement: (c) Default by purchaser and ScUer"s election to tenninate the Agreement under Section 7.1 hereof: or (d) Pa)ment by purcbaser of all Payments authorized or required to be paid by Purchaser hereunder. 4.0 Amount and Times of Payment purchaser agrees to pay the Purchaser's Cost indicated in the Schedule. in the Payment amounts and at the tintes set forth tbereon. 0largeS will am as specIfied in the Scbedule. By its execution of each Schedule. purchaser finds and de.ermines ...... in each F'1SClI1 Period of tbe Term. the Payment amounts set fonh on tbe Schedule are equal to tbe fair rental value of the Equipment duting the respectM F'1SC8I Period in whicb sucll Payments are made. 4.1 Interest A ponion of each Payment is paid as. and represents payment of. interest as specifted on Exhibit B to tbe Schedule. 4.2 Late Charges Payments received after the due date will be subject to a late charge at the rate of 1.5% per month (or at the hiJheSr .... allowed by law. if less) on outstanding amount thereof from the payment due date until the dale of nceipt by Seller. 3 o o 4.3 Abatement of Payments Except as expressly provided herein. there will be no abatement or reduction of PaymeIIts by the Purcllucr for uy reuon. It is the intention. of the panics that the Payments be made in all events, unless the obliptions to pay such amounts are terminated as plOVided herein. 4.4 Payments to be Unconditional The obligations of Pun:haser to make the Payments ""Iuited under thac Sections 4.0 through 4.4, incIusiw, and other Sections hereof and to petfonn and observe the other COIIOnants and apeements contained herein shall be absolute and uDCODditiollal in all events ClII:CpI u express1y provided under thl Agteement. Notwithstanding any dispute between or among Pun:haser, Seller, or any other pemoa, Purdluer sha1Imakc all Payments when due and shall not withhold any Payments pending rmal resolution of such dispute, nor shall Pun:haser...... any right of set-olf or counteldaim against its obligation to make such payments ""Iuited under the Agreement. 5.0 Care and Use of Equipment Putthaser. at its own expense, will obtain remedial and preventive maintenance during the term of the Agreement to keep the Equipment in good operating condition and appearance. The Pun:haser agrees to use and provide maintenana: for the Equipment only in the manner and to standards contemplated by the Equipment manulacturer. Pun:haser agrees nOltO relocate the Equipment without the prinr written pennission of Seller. 5.1 lospectlon With reuonable prior notice. Pun:haser will allow Seller to enter the premiHs where the Equipment is located during normal business boun to inspect the Equipment in order to detennine whether Purdlascr is fulfilling its responsibilities hereuDdcr. 5.2 Release and Responsibility Coveoants EJu:ept as may directly result ftom Seller's gross negligence or willful misconduct, Pun:buer, and not Seller or it AaIignee, sha1I bear responsibility for any and all liability, obligation. losses. claims. and damages whalsoever. reprllless of cause thereof, and ..- in connutioll therewith, including. without limitation. counsel fees and expenscs. penalties and interest arising out of or u the reouIt of the enteritlc into the Agreement, Purdluer's failurc to cletlare and pay any tax or fee u provided in this Agreement, the manufacture or ownenItip of any item of the Equipment, the cmIeriDg, acquisition. use. operation. condition. purehase. delivety, rejection, Storage or retum of any item of the Equipment resuIIiq in daItIaF to poperty or injury to or death to any person including. without limitation, any claim alleging latent or other def..... whether or not disctMrabIe by Seller or Purdluer. any Clal~ lor patent. trademark or copyright infringemen~ and any claim arising out of liability in tort. Purdluer's reapoIlIibiJity under this Sectioll shall continue in fullloree and effect notwithstanding the full payment of all obliprions uncler the Agreement or the terminatioa of the Term thereof for any reason. Purehaser agrees not to withhold or abate any ponion of the Payments ""Iuited punuant to the Agreement by reaIOll of any del..... ma1functions. breakdowns or inlinnities 01 the Equipment. Promptly upon learning of any claim or liability orisin& hereunder, Pun:buer and Seller apee to give the other party prompt nOlice 'hereol. Pun:haser agrees to prepare and deIiYer to SeUerwithin a III ...... time prior to the required date of riling (or. to the extent pennissible. file on behallof Seller) any and all repomt, other than inonme tax retUmS to be med by Seller, with any federal. state or other regulatory authority by reason of the sale by Seller of the items of the Equipment hereunder. 5.3 Taxes and Uc:enses Purehaser will comply with all laws and cIet1are and pay all taxes relating to Equipment and Pun:haser'1 oblip_ hereunder, induding, but not Iimitec to. sales and use taxes. gross receipts ..... (including business and oc:cupationa1_ wItich are hued em Seller's ...... reven_ re1ated to this transaction), registration I.... license I.... doeumentary stamp taxes, penonai propeny and ad valorem _ and all other taxes, licenses and charges imposed on the ownenhip, possession of or use of the Equipment during the term of the Agreement, together - interest and penalties. Notwithstanding the foregoing. Purehaser will not be oblipted to pay _ bued solely upon Seller's net income, _ sha1I Pun:buer be ""Iuired to pa taxes it contests in good faith and by appropriate proceedings with any taxing authority, if nonpayment under such cireumSl8nces involves no risk of forfeiture or encumbrance of the Equipment. 4 o o 5.4 Tax Covenants pursuant to the provisions of the Intemal Rewnue Code of 1986. .. amended. telatee! rulinp and teauJations theteunder, and any amendments or teStatements of same (collectively, "Code'), the pun:haser hereby certifies, with n:spect to each ApeelDCftt the foUowinz; (a) The pun:haser will not n:ceive any ptoce<dS or other consideration for its payment of the Payments pursuant to the Apeement other than the us' of the Equipment. It is n:asonably expected that the Pun:haser will not sell or otherwise ciispose of the EquipmeDt prior to the termination of the Agreement. (b) It is expected that Payments under the Agtec:ment will be paid from periodic appropriations of the Pun:haser deposited into the II"neral fund oi the pun:haser. that such appropriations will equal the Payments due during each fllC8i year of Pun:Itaser. and that all antoUnts paid for Payments will be from an appropriation made by the Pun:haser during the flSClll year in which such Payment is made. No other fund or account. authorize<l or establishec pursuant to the Agreement, or otherwise. will be used directly or inditectly to pay Payments under the ApeelDCftt nor is any other fund pledged .. security for the payment of Payments under the Agtec:ment. (c) :-10 mote than ten pen:ent (10%) of the use of any unit of the Equipment in any month will be by petSOIIS or entities other than the Pun:haserOt its employees on maners telating to such employment, and no mote than f... pen:ent (5%) of the use of any unit of the Equipment in any month will b< untelated to use by or for the Pun:haser. No man&ll"ment contraCl shall be enteted into with n:spect to any unit of the Equipment unless (i) at least ha the compensation is on a periodic, flXOCl-fee basis: (ii) no compensalion is based on a shan: of net pIOfits: and (ill) the Pan:haser is able to tertninate th< contract without penalties at tbe end of any three years. (d) In compliance with federal statuteS telaling to taX exempt obligations. Pun:haser apea to coopeI1lte with the Seller in the uoimilation and verification of infonnalion with tegard to any matters whatsOCVCr concertting the ApeelDCftt. and furtber apea to eDCUte, deliver and provide Seller with satisfactory evidence of the filing of such documentation.. may be required for the purpose of pIOIlOrly reporting the ApeelDCftt. including withO limitation. IRS forms 8038-G or 8038-Gc, .. required under the Code. pun:haser unclersWlClS and apea that the Payments hen:under have been bargained for in consideration of Pun:haseis fulfdlment of the obligations deseribed immediately -. ill addition to its other obliptions heteundet. (e) The Commissioner of Internal Rewnue has IIOt published notice that the Pun:haser is disqualified and may not certify obligations under Treasl Regulations 1.103-13(a)(2). nor has the pun:haser been advised that such action is contemplated. (I) To the best of the knowledll" and belief of the Pun:haser. thete ate 110 other facts, estimates, or cin:umStaJICCS which wou1d materially chanll" tt expectations of the purchaser as set fanh herein and such cxpccutions are reasonable. 5.s Assignment by Purdmser Without the prior written consellt of Seller and Assignee. Pun:haser agtees not to I..... assign or transfer all or any part of ilS rights and obligations under tbe Agreement or in the Equipment. 5.6 Delivery of Related Documents purchaser \\,;11 sign or provide. at the time specified below. the following documents Atlsfac:tOty to Seller: a) Prior to Equipment installation (i) An Opinion of Counsel.. deseribed in Seetion 10, and subatalltially in the form of Exhibit E; (il) Essential Questionnaire in the fonn of Exhibit P. b) Promptly upon Equipment Acceptance (i) An Acceptance CertifICate in tbe fonn of Eslubit C, conlirtning Pun:haser's occeptaIICC of the Equipment: (Ii) An acknowledged IRS fonn 8038-G or -GC.. provided by Seller and in the form of Exhibit D; (ill) Putehaser's maintenance contra< .be EquIpment: (iv) An insurance certificate confmning cover8ll"" described in Seetion 5.8. uniesS Seller has agn:ed to Pun:haser's ..If.insurance. c) Promptly upon Seller's wrinen request (i) Finane\ng statements or other documents perfecting Seller's or its Assignee's .....rity illteteSt undet Agreement: (ii) If Seller has agn:ed to Pun:haser's self-insurance. detailed deseription of Putehaser's oeIf-insuranee pIaII in the form of Eslu1>it H. including a confirmation that such plan covers the Equipment: (Oi) A certifICate by Pun:llaaer confimting and d..'....C to potential Assignees of Se; lhe accuracy and completeness of information contained in tbe transaction documanlS and of material f.... c:oacerning the pun:hase and tbe terms c transaction: (iv) :\otice of Assignmellt in the form of Exhibit G. or" ditectnd by Seller; (v) Other documelllS.. reasonably requested by Seller for purpose of carrying out the transactions described in the Agreement. 5.7 Transportation and InstaUation Charges Pun:haser shall be responsible for all charges telating to the transportation of EquipmeDt to Pan:haser'sloc:ation and installation at such location. may at its option either pn:pay such chat11"5 and invoice Pun:haser or forward to Pun:haser transportatiOll and inataUation invoiceS .. they ate teC"' whereupon purchaSer shall remit payment to Seller in a timely manner. 5 o o 5.8 Insurance Pun:haser shall. at ill own expense. insu", the Equipment apinst aU risks, including, but _limited to, war risk, earthquake and ftood damage. in such amounts as Seller shall reasonably require (but not less than tbe Purcbue Price described in SectioII 8.1 hereOf). PurcbUcr shall obtain coverage with ar. insurance carrier licensed to provide propeny, casualty and liability iDSUtl.llCe in the state wberc tbe Equipment is locatccL AD insuranee carrier nOl so licensed or self-insurance by Purchaser shall not be acceptable unless SeUet. in illlOie diacn:tion, Iha1Iso consent in writing. The policy of insurance shaU maintain a loss payable endorsement in favor of Seller and any lender or usipee of Seller affording tbem such additional protection as the)' may reasonably require. All such insurance policies shall prrwide such coverages in amounllsatisfactoly to Seller, shall name Purchaser. Seller. and Sellers lender or assignee as additional insureds under a s..ndard mongage type clause and as loss payees. as their intere5ll may appear, and shall prrwide 'ha, they may not be canceled or altered without at leas. thirty (30) days prior written notice to Seuer and ill lender or assignee. Purchaser's liability for loss under Section 8.3 shall not be diminished by any insurance payment 1... than the actual amoutI' of tbc loss. Purchaser Iha1I carty Workmen's Compensation insurance. as required. covering all employees on, in. near or about tbc Equipmen. and Iha1I JeqM any other person or en.ity working on, in. near or about the Equipment to carry such coverage, and wilt furnish to Seller, upon request, certifu:&ta CYidenCiDg such coverage throughout the Term of the Agreement. 5.9 Advances Not Applicable. 6.0 nde Title to the Equipment will pass to the Purchaser on the Acceptance Date. Title will reYCrt to Seller upon termination pursuant to Sect:ion 7.1 or 8.0. 6.1 Security Interest Purchaser grants to Seller and Seller retains a purchase money security interest in the EquipmcnL Purdlalcr wiD not change or remove any insignia or lettering which Seller may place on the Equipment to indicate its interest therein. Until aU Payments ue made or ....~t in aa:ontance with Sections 8.1 and 8.2 hereof is complete. Purchaser will keep the Equipment free fllllll any Iicn, ......mbranCO or \egaI pIOCCIS and Purchaser will promp: discharge any claim which might become a lien or charge apinstthe EquipmenL 6.2 Filing Pun:haser au.horizes SeUer '0 make Seller's security interest a ma...r of public record by filiDC with tbc appropriate authority a copy of .he Agreemen: of any other documenll Seller deems necessary for that purpose. Purchaser Iha1I he respoIIIible for any COIlS associated therewith. Purchaser agrees !, sign or execute such documents on Purchaser's behalf for the sole PUrpolC of perfectiD& SeUer's security interest hereunder. 6.3 Personal Property The Equipment will ",main penonat property and wiU not be so atrlllCClto realty as to cbanp: ill character to a r_re or realty. Purchaser shall ob.a" as to any place whe", the Equipment is located. a waiver fllllllthe landlord and/or mortppe tbcreof witb respeclto any ri&bllthat either may have under local law to levy or distrain on the Equipmen. and Iha1I obtain tbc lepI deIcripIioa of the real...... upon Jeque5l by Seller. 6.4 Alterations, Additions, Attachments In .he event title to the Equipmen. reverlS to Seller. and at Seller's request, Purchaser. at ill expense. will """"'" aU alterations. additions. and attachments and repair tbe Equipment as necessary to retum the EquiplllCDt to the condition in which it Via fumished. reasonable wear and tear excepted. Any "'placement/repair parIS are Equipment subject to tbe ..rms of the ApccmeDL 6.5 Equipment Return Pun:haser is responsible for the ",'um COSll related to the .ermination of the Apeemen' p".......tto SectioIII7.1 or a.o, including deinstallation. riggJ drayage. freight. and insurance to destina.ion specifted by SeUer within the con_tal UDited 5...... U tbc Equipmen' .... not nutintained under a manufacturer's maintenance agreement prior to tbe Equipment's return, the PurchaserwiU pay for such repms as are neceauy to make tbe Equipnu acceptable for maintenance under the manufacturer's standard mainteJll;DCC apeemeDL 6 o o 7.0 Default DefiailioD Any of the following events shall constitute a default under the Agreement: (a) Purchaser fails 10 make any paymenl tcquircd hercunderwhen due; or (b) Purchaser fails 10 observe or perfotnl any olber covcnanl. condilion. agreemenl or WlIrranty of Ibe Agreemenl and such failure conlinues for ten (10) days without cure after Seller provides purchaser written notice of such failure; or (c) Purchaser becomes insotvcnL makes an assignment for tbe benefit of creditOIS. applies for or consents to the appointment of a receiver. trustee. conservalor or liquidalor of Purchaser or of all or a substanlial pan of its ....ts. or a pelition is filed by or apinsl Purchaser under Ihe federal bankruplcy laws or any similar state or fedcrallaws providing for the relief of deblOrs. 7.1 Remedies Upon the occurrence of an event of a default. without funher notice or demand. Seller may at its option do any or all of tbe folloWinc: (a) Tcnninatc the Agreement by providing written notice to Purchaser. (b) Take possession of tbe Equipmenl whe....r silualed wilhoulliability for entering Ibe premises where the Equipmenl is located; (c) Sell. lease. rent or use lbe Equipment al its sole discrelion. Purchaser remains liable for arrears of paytncnts, Ibe COOlS of taking pc......;on including storage. rcpair. Equipmenl relum pursuanllo Section 6.5. coun costs and allOrnOy's f.... sale or........... and lbe ba\aIICe due under Ihe Agreemenl. The proc:ccdS of sucb sale or ..... of lbe Equipmenl shall be applied loward tbe ba\aIICe due after deducting lbe aforementioned costs and payments. For the purpcscs of this provision. Ibe balance due sha1I be equal 10 Ibe Purchase Price dctennined pursuanllO Section B.1 as of tbe date of default; (d) Declarc immediately due and payable all monies due during Ihe Tenn by providing written notice 10 Purchaser; and (e) Take .ny coun llCIion allaw or in equity 10 enforce perfonnance of Ihe obligationS or ........ts of the Agrcc1DCnl and 10 - damages for Ih breach thereof. purchaser shall rcmain liable for reasonable damages provided by law including all costs and expenses incurred by Seller due 10 Ihe default by purchaser. and inlerest at tbe rate of 1.5% per monlb (or the highesl rate allowed by law. iflca) 011 anyamountsd.... or COOlS and expense' incurred by Seller. from Ihe dale. sucb amounts, costs or expe.... _re due or incuncd, until receipt by Seller of paymenllhereror. 7.2 No Remedy Exclusive :0;0 remedy herein conferred upon or reserved to Seller is inlended 10 be ellClusivc and overy such remedy shall be cumulative and sball be in addilion t< every other remedy given under the Ap'eCment now or hereafter existing at law or in equity. ~o delay or omisSion to cxetciIe aD)' ripl or pcJM:r accNing upon any defaull shall impair any sneb righl or pc>t'Cr or shall be conslNed 10 be a _r thetcof. but any such riPt or power may be e..reis, from time to time and as often as may be deemed expedient. In order to entitle Sellcr to exc~ any remedy reserved to it in Scc:rioD 7.1. it shall not t necessary to give any notice. other tban such notice as may be required therein. 8.0 TermioatloD for NOD-ApproprialioDS purchaser inlends. subjecllO Ihe provisions of Section 3.0 (a). 10 conlinue Ihe Agrcc1DCD1 for lbe Tenn. and 10 pay the Payments and make other payments due hereunder. Purchaser reasonably believes thaI legally available funds in an amounl suffu:ien11O make all Payments during lbe Tenn car obtained. purchaser fun her intends to do all thinp lawfully within its power to obtain and maintain fundi from which the Paym:eIlts may be made. :O;olwlIhslanding Ihe foregoing, Purchaser's obligarions 10 pay any amounts due for .- r..... periods suecccding the 1"..... Period first in effect allh commencement of Ihe Tenn are conlingenl upon legislative approprialion or approva1 of funds for \bat purpose. TbcJefore, \be PurcbasCt may terminate the Agreement with respect to not less than all of the Equipment hereunder effectiYe uoftbc end ofuyofitl n r..lingfiscal periodS (It. '1'enninalion Dale') by giving Seller and its assigns Ihiny (30) days prior written notice lhallhe Agrcc1DCD1 wiIIlenninate in IIl:I:OIdanCC with Ihe provisions of Seclion 8.0 by reason of failure of approprialion of adequale funds 10 pay Ihe Payments 10 be due 011 or after lbe Termination Dale. ane advising Seller of Ihe 1000Iion(s) where lbe Equipmenl may be found on Ibe Tennination Date. All obligationS of Purchaser 10 make Payments specH on the Schedule to be due after the Termination Date will cease and aU interests ofPurcbalcr ill tbe EquipmeDt will terminatCo NCIl'WithstaDding the forcgoing. purchaser agrees (i) nOllO lenninale Ihe Agreemenl under Ibe provision if any funds are appropriated to il for \be 1"..... Period in quesli' for Ihe acquisilion (by purchase. lease. or olherwise) of Ibe equipmenl of functionally similar equipmenl or equipmenl performing similar applicatiOn and procedures: (ii) subieCllo Ibe provisions of Section 3.0 (a) and wilhoUI creating a pledge.1icn or encumbrance upon funds available 10 Purchaser olher Ihan its currenl I"ISCllI Period. lhal il will use its besl effons 10 obtain approprialion of the .......ry funds 10 avoid tenninatioD of \be Agreem' by laking all appropriale aClion including Ihe inclusion in purchaser's budgel tcquesl for caeb 1"..... Period during Ihe Tenn hctcof a tcqucst for 7 o o adequa.e lunds '0 mee. its obliga.ions and '0 con.inue .he Apemen. in lorce; (ill) that i. wiU not give priori'Y or pari'Y in the application 01 lunds .0 any o.her lunctionally similar equipment lor use by .he pun:haser. and; (iv) .ha. if.he Apemee' is temtiDated punuan'lO Seetion B.a. the Pun:haser will no. lor a period 01 nine'Y (90) days pun:h.... I.... or rent equipment perfonninc funetions limilar 10 \bole performed by the EquipmeDL Pun:h...r represents and "",nants i. has adequa.e lunds '0 mee. its obliga.ions during the fiIst fllClllappropriatioll period of the Term. SeUer and Pun:haser understand and intend that the obligation of purchaser to pay Payments hcreulldcr sball constitute . c:urrcot expense of Purchaser aad shall not in any ""'y be cons.rued '0 be a deb. 01 Pun:h...r in con.flI1/en.ion of any applicable constilUtionaI or stalUlOIy limitation or requirement conc:arning .he crea.ion 01 indeb.edness by Pun:h...r. nor shall anything contained herein consti.u.e a p1edll" of.he generallCWnuc:s. funds or monias of Pun:h...r beyond .he Foseal Period for which suffieien. lunds have been appropriated .0 pay Payments hereunder. 8.1 Prepayment So long as Pun:haser is no' in defaul.. Purchaser will have .he righ'. upon pJOViding Seller with sixty (60) days prior wriuan notice. 10 prepay its obliga.io: for no. less .han all of .he Equipmen. prior 10 comple.ion of .he Term. by payinl coacurrenllywith aod in addition '0 the periodic Paymen. due on any Paymen. da.e. .he Purch'" Prica specified for such Payment da.e on Exhibi. B '0 .he Schedule. 8.2 Purchaser's RIghts on Prepayment or Payment In Full Upon (i) Purchaser's exercise of its right of prepayment and/or (ii) Pun:haser's haviD& satisfied all of its monalaly and other obligationS hereunder. Sell< will release its security interest in the EquipmcnL 8.3 Risk of Loss (a) Wi.h regard '0 any i.em of Equipmen.. commencing upon delivery aod continuing throughout the Term, Pun:haser hereby assumes. and shall bear. .he risk of 1055 wi.h respect '0 any damaF. destruction. loss. thef.. or pmmmantalla1dD&. whether partia1 or complete aod whether 'hrough any laull or neglee' of purchaser or otherwise. Except as provided in this Section 8.3. no ...... of \oIs sha1I teIiew Purchaser of its obligation .0 pay Payments under any Agreement. (b) 11 any i.em of Equipmen. is dama&Cd. Purchaser shall promptly notify SeUer aod sha1\, at PutdlaKr's expo-. within sixty (60) days of such damage. cause '0 be made such tapain; as are necessary .0 re.um such i.em 10 its pnMous eondition. Purchaser sha1I than be entided 10 =ive lrom Seller or i.s assigns. as .he case may be. any insurance or other recovery teeaivod by Seller in COIIII8CIion with luch cIatttqO. (c) In .he evan. any i.em of Equipmen. is destroyed. damaFd beyond tapair.IOIt, -. or - by pmmmantal oction for a stated period extending beyond the .erm of any schedule (an "Event of Loa"). Pu_r sha1I prompIIy notify Seller aod pay 10 Seller. 01\ the ..... \leDtaI Payment da.e lollowing such Evan. of Loa. an amount equal to the Pun:haSe Price, described in SectiOII 8.1. than in effect as SOl forth for such item on .he Schedule. After payment 01 such pun:hase price and III Payments due and owiD& on or before such PaymeII' date, PutdlaKr'lobliption 10 pay funhe Payments allowable .0 .he i.em which suffered the Evan. of Loa sha1I cease. After payinc such Pu_ Priee 10 Sellar or ill assips. Pu_r shall I entitled to receive from Seller' any insurance or otber recovery received by Seller and its UIips in c:oucction willl such Ewnt of Loss. (d) In .he evan. of a govammenlllllking of an i.em of Equipmen' for an indafutite period or a stated period which does not ....nd beyond .he Le Term. all obliga.ions of .he Pun:haser with respeCI'o such i.em (including paymen. of Payments) lhaII COIttin... So tone as Pu_r is no' in del.ull hereunder. Seller shall pay 10 purchUCr all sums received by SeDer from. the governmeD.l by IeIIOD of IUCb. taIdJI&. 9.0 Assignment Pun:haser unders.ands .ha' Seller may assign its righ.. tide and in.el." in the Apeman\' .he Equipmen'listed on Exhibi' A '0 the Schedule. and .11 rights '0 receive funher paymanll'o an Assign... which may upon notice '0 Purchaser subrequenlly,....;p - 10 its assignee, subject '0 .he nghl Pun:haser hereunder. Purchaser consenll'O such assignments and apoes '0 ICIUI all Apeman' non. 10 both Seller aod its '-'-;lI"ee All rights 01 indemnifications to Seller will inure to such Assipu. Purchaser apes to make payIIlCIIts rcquiJed uoder the Apemant direClly to such Assignee without abatement or reduction of any kind. purchuer spees to appoint SeBer or ill Assignee u PutdlaKr's ..at for the purpose of maintaining a book en.ry system as required by .helntemal Revenue Code of 1986. 9.1 Advice of Assignment Upon assignment 01 Seller's inte...ts .0 an AJaigne.. Seller will ca_ a wrirten notice of such assipmCftt 10 be - to Purchaser which shall be sulli, if i. discloses 'he name of .he AJaignee and .he address .0 which fumer paymtnll benunder sha1I be made. No .funher action will be required by Se and Purchaser's coftSCnt to the assignment is not required. ~otMlblWlding the forqoing. DO such sublequeat ,.AMI'II"cnt sba1l be effective apinst . 8 o o purchaser unless purchaser receives notification in writing of such assignm.nt designating the name and addreSS of any such subsequent Assignee. Purchaser agrees '0 affIX a copy of each notification of assignm.n' '0 ,h. Purchaser's count.rpart of th. Agreement. 10.0 Warranties and Represeatatioas of Purchaser purchaser represenlS. covenanlS and warranlS for th. ben.fi, of Sell.r and ilS Assignee(s) and will (reprding subSeCtions (a) tluough (i)below) d.li....r an opinion of counsel as follOWS: (a) purchaser is an .ntity.. described on Page 1 h.reof and is orpnized and .xis'ing und.r and by virtu. of 'h. authorizing SIB'U" or consti,utional provisions of th. SIBt. so designated: (b) purchaser is authorized under th. Cons'itution and \aWS of ,h. SIBt. .. designated on Page I of th. Agreemen' to .nter in'o ,he ,ransactions cont.mplat.d h.reby and to perform all of ilS obliptions h.reund.r. (c) ~o approval. consent or witltholcling of objection is required from any governm.ntal authority with respect to the entering in,o or performance by the Purchaser of the Agreement and the transactions contemplated thereby; (d) Purchaser represenlS that......tion and deliYery of the Agre.m.n' has been duly autborized. and further repiesenl5. covenanlS and warranlS that all requirem.nlS have been m.t and procedures have occurred in ord.r to .nsure tb. .nforceability of tb. Agreem.nt (except.. such .nforceability may be limit.d by bankruptcy. insolvency or otb.r laws affecting creditors' righlS gen.rally, and by the application of equitable principles if equitable rem.die> are sought), and purchaser bas compli.d with sucb public bidding requirem.nt .. may be applicabl' to tb. Agreement and the acquisition by Purchaser ( the Equipment hereunder. (.) Th. .nt.ring into and performance of tb. Agreem.nt will no' violate any judgm.nt. order. law or regulation applicable to Purchaser or result in any breach of, or constitu'. a default under, or ...ult in tb. creation of any li.n, charge, security int....t or other .ncumbrance upon any....1S of Purchaser or on tb. Equipm.nt subject 10 the Ape01II.nt pursuant to any ind.nture, morrpge. deed of trust. bank loan or credit agreem.nt or oth.r instrument to which Purchaser is . pany or by wbich it or its assets may be bound; (I) Th.re are no actions. suilS or proceedinp pending or. to th. knowledge of purchaser, tbreatened against or affectinI Purchaser in any court or before any governm.nIBI commission. board or authority which. if adversely d.t.rmined. will have a mat.rial, adverse .flect on the ability of Purchaser' perfonn its obligations under tbe AgreemCftt: (g) Th. purchaser is a politieal subdivision within tb. meaning of Section 103 of tb. Internal Revenue Code and the related regulations and rulinp. and 'h. portIOn of paymenlS idelltifted .. d.f.rred interest chargOS to maturity, upon receipt. will not be includable in Federal ptlII incom' und.r sta'u"" regulations. court decisions and ruIinP existing on tb. dat. of tb. Agreem.nt and consequ.ntly will he exempt from pIOSeRt federal incom. taXes and income taXCS of the State as desigrlated Oft Page 1 hereof: (h) Th. Equipm.nt is personal property and when subject.d to use by purchaser, will nOl be or beeOm. f_ under ,he taws of the Stat. or jurisdiction where the Equipment win be located; and (i) Th. purchase and use of the Equipm.nt are essential to Purchaser's proper. .ffici.nt and economic operation. 11.0 Disclaimer of Warranties Th. purchaser acknowledges that the Equipm.nt is of a size. design. capacity. and manufacture selected by lhe Purchaser. Seller MAKES NO wARRANTIES OR REPRESENTATIONS OF ANY KIND. EXPRESS OR IMPLIED. RELATING TO TIlE EQUlPME OR PATENTS RELATING THERETO; AND SELLER HAS EXPRESSLY MADE NO wARRANTY AS TO TIlE VALU DESIGN. CONDITION. MERCHANTABILITY OR FITNESS FOR A PAlUlcULAR PURPOSE OR USE OF THE EQUIPMENT. Seller and its Aasignce will not be liabl. to tb. Purchaser for any liability. lnas or cIaIII&Po including consequential cIam8ges. cause a11.ged to b. caused. directly or indireetly. by th. Equipm.nt or by any inadequacies thereof or deflCi.ncy or defect th.rein. by any incident wba\SOO\' connection 'h.rewith or in any way related 10 or arising out of tb. Agreem.nt. Witb respect 10 warrantieS whi<b are not assignable. SeU.r agrees to I at purchaser's request and expense. such reasonable actions apinst third parties.. are necessary 10.nforee sudt warranlies for Purchaser's ben.fit. 11.0 Waiver ~o d.lay or omission by th. parties in ex.rcising any right in any of th. Transaction [)ocumeII1S shall operate .. a waiYer of that or any oth.r right · singl' or partial .xercise of any right shall preclude th. parties from any or furtb.r .xercise of any right or remedy. 11.1 laterpretatioa All Section headinp conIBined herein are for conveni.nce of ref.rence only and are not intended to define. limit or deSCribe lhe scnpe of any provi: th. Agre.m.nt. T.mu used in ,h. plural include th. singular. and vice versa. unleSS the context otb.rwise requires. 9 o o 12.2 Severability In the event any ponion of the Agreement sball be finally determined by any c:oun of competent jurisdiction to be invalid or unenfottellble. such provision shall be deemed void and the remainder of the Agreement sball continue in full force and effect. 12.3 Ambiguity The panies to the Agreement. and each of them. hereby repreSent that the language contained herein is to he consuued as jointly proposed and jointly accepted. and in the event of any subsequent determination of ambiguity, all panies shall he treated as equally responsible for any sucb ambiguity. 12.4 GovemiDg Laws The Agreement sball be constnted in accotdance with and govemed by the laws of the Pun:baser's State as specified 011 Pa&e 1 bereof. 12.5 Amendment Any of the Transaction Documents may only be amended in writing by obtainin& the sipatu.re of the parties. No _peel Transaction Document may Of modified without the prior written consent of Assignee. 12.6 Execution Each Agreement may be executed in any number of counterpans but only the counterpan that is labeled "Original" wiD be deemed to be the original Agreement for purposes of petfection of a security interest tberein and shaI1 be tbe only counterpan wItich may be tranSferred and given to tranSfer the rights of Seller tbereunder. 12.7 Formation of Agreement Seller shall not be bound by tbe Agreement until it is executed by an Authorized Signatoty of Seller. 12.8 Complete Agreement Each Agreement entered into hereunder sball constitute the complete Apccment betweC1l tbe parties for tbe purcbue of the Equipment referenced therein and shall supersede all prior agreements. written or oraL wit.b teprd to the matterS addressed therein. lZ.9 Binding Effect The Agreement shall inure: to the benefit of and shall be binding upon Seller and Purdlalcr aacllbeir respective suc:ceums and usips. 12.10 Notices All notices. cenificatcS or other communications hereunder shall be suff"u:iently pveu aDd shall be deemed pn when delivered or mailed by rcgistcrec mail. return receipt requested. at the addresses as set fonh on Page 1 hereof. 12.11 Point of Sale The point of sale is the City of San Bernardino. _REMAINDER OF1HIS PAGE lNI'ENI10NAU. Y LEFT BlANK- 10 o o Agreement No. 108 Schedule No.1 Dated as of October 28, 1991 THIS SCHEDULE is issued to the above Conditional Sale Agreement dated as of October 28, 1991 between the parties thereto to authorize installation of the Equipment listed. herein. As further described in Section 2.0 of the Conditional Sale Agreement Terms and Conditions (1/91), this Schedule incorporates the provisions of the above-referenced Conditional Sale Agreement, any Riders specified on Page 1 thereof, and the Exhibits listed below. All terms used herein have the meanings ascribed to them in the Conditional Sale Agreement, unless otherwise noted. 1. Equipment Location: 2. End User of Equipment (if different from purchaser) 3. Invoicing Address: 4. Commencement Date: 5. Period of Payment: Payments. 6. Number of Payments: 7. Equipment Fmauced Amount: S The following Exhibits are annexed hereto and made a part hereof: A, B, C, D, E, F, G, and H. The Schedule and the documents incorporated herein constitute a separately assignable obligation of Purchaser. By its execution below, purchaser represents that (i) it has read and understands all documents listed above and (ii) as of the date of execution hereof, all of the covenants, warranties and representations therein apply to this Schedule with full force and effect. IN WITNESS WHEREOF, the parties hereto have caused this Schedule No.1 to be executed by their duly authorized representatives as of the day and year rust written above. SELLER: MUNICIPAL LEASING CORPORATION PURCHASER: CITY OF SAN BERNARDINO BY: BY: NAME: NAME: TITLE: TITLE: DATE: DATE: o o Exhibit A. EQUIPMENT Equipment List: purchaser's Total Cost: $ SELLER: MUNICIPAL LEASING CORPORATION PURCHASER: cm OF SAN BERNARDINO BY: BY: NAME: NAME: TITLE: TITLE: Reference purposes to the Conditional Sale Agreement Terms and ConditiOJlli (1/91) only. Agreement No. illS-Schedule No.1 o o Exhibit B. PAYMENT SCHEDULE SELLER: MUNICIPAL LEASING CORPORATION PURCHASER: CITY OF SAN BERNARDINO BY: BY: NAME: NAME: TITLE: TITLE: o o Exhibit C. ACCEFrANCE CERTIFICATE Municipal Leasing Corporation 11150 Sunset Hills Road, Suite 240 Reston, Virginia 22090-5321 This certificate is in reference to that certain Schedule No.1 dated as of Oc:tobcr 28, 1991 (the "Schcdul"") to Conditional Sale Agreement No. 108, dated as of October 28, 1991 ("Agreement") bctwccn Municipal Lc--.;"g Corporation, and the City of San Bernardino. Pursuant to the above-mentioned Agreement, the undersigned hereby c:crtifies (i) that the Equipment described on Exhibit A of the Schedule bas been delivered to the Purchaser, bas been inspected by authorized rcprcscntativcs of the Purchaser, bas been fully and fmally accepted by Purchaser under the Agreement and bas been found to be in good working order and to be the Equipment described in Exhibit A to the Schedule, (ii) the Date of Acceptance for such Equipment under the Agreement is . The first Payment under the Agreement shall be due on the Date of Acceptance and subsequent Payments arc due on the date of each period which corresponds to the Acceptancc Date (e.g., if the Acceptance Date is January 15 and the period is "monthly", tbcn the DCllt Payment is due February 15; or if the Acceptance Date is January 15 and the period is "quarterly" tbcn the DCllt Payment is due Apri115, clC.) during the Lease Term, and (ill) that, as authorized signatory of Purchaser, I have csecuted and attached Internal Revenue ScMc:c form 8038- G. filling in the Acceptance Date thereon in Section 6, and authorize Sc1lcr to take such steps as arc DCceSS-ry to file a completed form in accordance with Internal Revenue Service instrUctions. Crn' OF SAN BERNARDINO By: Title: Date: o o Exhibit E. SAMPLE OPINION LETl'ER TO BE EXECUTED ON COUNSEL'S LE'I'l'ERHEAD Municipal u~.ing Corporation 11150 SUDSet Hills Road, Suite 240 Reston, VirgiDia 22090-5321 Gentlemen: Weare coUDSeI to the City of San Bernardino (the "Purchaser") and, in that capacity, we haw ClllID1iocd a Conditional Sale Agreement No. 108 dated as of October 28, 1991, including Schedule No. 1 thereto, dated as of October 28, 1991 (col1cctivcly the "Agreement"), betwcCD the Purchaser and Municipal Lc~.;ng Corporation ("ScIlcr"), As a result of our """min~,ion of the Agreement and such other e""m;n~t;QDS as we haw deemed appropriate, we arc of the opinion as follows: (a) The Purchaser is a public body corporate and politic and is authorized by the eoastitution and laws of the State of California to carry out its Ob1igatiODS under the Agreement; (b) The Agreement has bcco duly authorized, ew:utcd and deliYllrcd by CODStitUlcs a valid, legal and biDding agreement, coforccable in accordance with its terms; ,and (c) No approval, CODSCDt or withholding of objection is required from any gDYIII1IIDcota1 authority with respect to the entering into or performance by the Purchaser of the Agreement and the transactions contemp1atcd thereby; (d) The entering into and performance of the Agreement will not violate any judgment, order,law or regulation applicable to the Purchaser or result in any breach of, or COD5titute a default under, or result in the creation of any lien, charge, security interest or other encumbrance upon any assets of the Purchaser or on the equipment subject to the Agreement pursuant to any instrument to which the Purchaser is a party or by which it or its assets may be bound; ( e) The equipment is personal propcrty and when subject to use by th~ Purchaser will not be or become fixtures under the law of the State of California; (f) The Purchaser is a political subdivision within the meaning of Section 103 of the Internal RcYIIDUC Code and the related rcgulatioDS and ru1ings and that the portion of payments identified as deferred interest charges to maturity, upon receipt, will not be includable in Fcdcra1 gross income under statutes, regulations, court decisions and rulings Cllisring on the date of this opinion and coascquentiy will be l\lII:Dlpt from prcscnt Federal income taXeS and income tax of the State of California; and (g) There are no actions, suits or proceedings pending or to our knowledge, thrcatCl'ed against or affecting the Purchaser in any court or before any gDYIII1IIDcntal commininn, board or authority which, if adYIIrscly dctennincd, will haw a material, adverse effect on the ability of the Purchaser to perform its ob1igatioDS under the Agreement. Very truly yours, Attorney's Signature o o Exhibit F. ESSENTIAL USE LETI'ER TO BE SUBMI1TED ON PURCHASER'S LETl'ERIIEAD Date: Municipal Leasing Corporation 11150 Sunset Hills Road, Suite 240 RestoD, Virginia 22090-5321 RE: That c:crtaiD Schedule No. 1 to Conditional Sale Agreement No. 108 dated as of October 28, 1991, between Municipal Leasing Corporation ("Seller") and the City of San Bernardino ("Purchaser"). Gentlemen: This letter is being written with respect to the use of the property (herein so called) to be 1eased to the undersigned under the above-referenced Agreement. The property will be used by Purchaser for the following purposes: The property is essential to Purchaser's obligation/duty to perform the following: (a) Without this property the Purchaser would not be able to perform this function. The Equipment (is)(is not) replacing property which performed the same of similar function. (a) If yes, what happened to the prior equipment? The undersigned hereby represents that the use of the property is ess-tial to its proper. efficient and economic operation. Very truly yours, CITY OF SAN BERNARDINO By: Title: o o Exhibit G. SAMPLE NanCE OF ASSIGNMENT LE'lTER Date: TO: City of San Bemardino RE: Tba1 certain Schedule No.1 to Agreement No. 108 dated as of October 28, 1991 (the "Agreement") between MUDicipal Le..ill! Corporation ("Seller") and the City of San Bernardino ("Purclwer"). Gentlemen: Please be advised that pursuant to the Agreement, MUDicipa! L~..ill! Corporation ("SeW) is ,uigrill! an of its right, tit1e and interest in, to and under the Agreement to: SAMPLE All payments and notices in CO"..erlion with the Agreement are to be sent to: SAMPLE with a copy of any notices to Seller. The terms of the A&<igrment specify that Seller sha1l continue to perform an ol-ligl'.ions and duties required of it under the Agreement, and the Assignee sha1l not be responsible for performanc:e of any such ob1igl'.ion' or duties. In compliance with Section 149( e) of the InterDai Revenue Code, the Purchaser agrees to affix a copy of each DOtifica1ion of .uigrment to the Purc:baser's CQIDlteI'palt of the Agreement. We request that this notice of .~.ill"""ent be acknowledged by siping in the space provided below and retomiag a copy to us. Sincerely, Bruce M. Bowen, President ACKNOWLEDGED AND AGREED: CITY OF SAN BERNARDINO BY: NAME: TITLE: DATE: o o Exhibit H. aUESTlONNAIRE ON SELF-INSURANCE These questioDs arc to be used as a guiil..li..e for a dascriptioD of the Purc;bascr's seIf-iIIs1IrBII= prograsn. While a respoDSe to each question is not required. a written statement CO'ICring the areas of c:oncem be10w 'MlIIld be &pprec:iatecI. P\eaSe provide responses in a letter signed by your appropriaterepresentatiw- 1) Does the Purchaser intend to self-insure for: a) damage or destrUCtion to the propertY; b) liabilitY for injury (including death) to persons? 2) What are the \imits (in dollars) of the liabilitY the Purchaser proposes to assume for c\aiJDs wuIer 1) above? 3) Does the Purchaser mpintain an umbrella insurance policy for claims in elrl:CSS ofPurc;bascr's seIf-iDs\IraDCC \imits under question 2) above? If so, a) Does the umbrella policy provide an.risk propertY d,mRF COYCrIF and CIJ'ICRSC for liabilitY for injuries. including death, to persons? . b) What arc the umbrella poIicy's \imits for such propertY d-maF and liabilitY aweraF? 4) From what source does the Purchaser obtain funds to pay its self-insured Iia"iliri""? a) Does the Purchaser lD"int.i.. a self-insurance fund? If so, i) Are the monies in this fund subject to annual ~? ii) What total amount is 1D,,;nt,,;n...d in the fund to c:over thePurdlascr's self-insurance JiabiIjlies? iii) Are amountS paid from the fund subject to \Un;t.rions per ead1 daim? iv) If the Purchaser does not m.;ntain an umbrella policy. arc claims 1imi1ed oa1y to lIIDQUIIlS available in the fund, or may a ..1.imaDt pursue other aVllJlues of relief against the Purchaser? v) Who or what is the decision m.1riqg authoritY for payment of claims sulJmittr.d against the Purchaser? vi) If a ..1"im"Dt receives an adverse dccisiQft from the entity c1escribed in 4.a)v) above, does the <:\.m.aDt haw recourse to the courtS or to another aciJDiDistrarlv agency (i.e. who/what is the authoritY of last resort for payiDg a claim against the Purchaser's self-insurance JiabWty?). b) If the purchaser does not maintain a self-insurance fund, from what source(s) does the Purchaser obtain funds to pa) claims against its self-insured JiabWty? i) What are the limitations and amountS payable for claims against these fundiDg sources? ii) WhofWba1 is the entity authorizing payment from a daim against the P1Jrcbuer's seIf.iIIs1IrBII= Jiabi\ity? ill) WhofWba1 is the authority of last resort for paying a claim against the P1Jrcbuer's lOlf-insurance Jiabi\ity?