HomeMy WebLinkAbout24-Purchasing
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CI-.4t OF SAN BERNARD~ - REQU"T FOR COUNCIL
Dept:
Purchasing
Subject: Refuse Vehicles
25, 30 & 35 Cubic Yard Refuse Truck
Public Services/Refuse Department
From:
Dean R. Meech
Date:
December 12, 1985
BID SPEC: F-85-34
Synopsis of Previous Council action:
None
Recommen<led motion:
Adopt Resolution
Dean R. Meech
Signature
Contact person: J2e.<1n R. Meech, Purchas ing Agent
Phone:
508';
Supporting data attached: Yes First Year S217,602
Next 4 Years $870,408
FUNDING REQUIREMENTS: Amount: $1,088,010
Ward:
N/A
Source:
1?7-4n-Ssn7 Refll"" Fllnrl
t::~'/{:~_
Finance:
Council Notes:
75-0262
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Agenda Item NO~
CI~ OF SAN BERNARDI~ - REQUAT FOR COUNCIL ACtiON
STAFF REPORT
BID SPEC: F-85-34
The proposed purchase is for (4) each 35 cubic yard front loading
refuse trucks, (1) each 30 cubic yard roll-off truck and (5) each
25 cubic yard rear loading refuse trucks for utilization in daily
operations of the Public Services Department/Refuse Division. At
the request of the department and in co-ordination with the
Equipment Superintendent, appropriate specifications were
prepared, published and furnished to area distributors of waste
disposal equipment. Bids were publicly opened and declared on
October 29, 1985. The following is a summary of bids received:
CATEGORY I - (4) 35 CUBIC YARD FRONT LOADERS
TOTAL BID
VENDOR CAB & CHASSIS BODY INCL. TAX
Inland Kenworth Kenworth L700 Amrep $386,834.77
*Inland Kenworth Kenworth L700 C & 0 $397,806.37
*Inland Kenworth Kenworth L700 Pac-Mor FL35 $403,106.37
Mack Truck Mack MR688S Dempster $411,886.32
*Mack Truck Mack MR688LS Amrep $400,904.72
*Mack Truck Mack MR688S Pac-Mor $418,691.52
Carmenita Truck White WX-64 Amrep $397,118.40
*Carmenita Truck White WX-64 C & 0 $408,100.00
*Carmenita Truck White WX-64 Pac-Mor FL835 $413 .400 .00
Cochran & Nichols White WX-64 Amrep $379,641.12
CATEGORY II - (1) 30 CUBIC YARD ROLL-OFF TRUCK
TOTAL BID
VENDOR CAB & CHASSIS ROLL-OFF INCL. TAX
Inland Kenworth Kenworth L700 Amrep $ 79 , 134 .33
*Inland Kenworth Kenworth L700 Spar ton $ 80,550.49
*Inland Kenworth Kenworth L700 C & 0 $ 81,911.53
Mack Truck Mack MR688S Dempster $ 83,869.74
*Mack Truck Mack MR688S Amrep $ 81,092.12
Carmenita Truck White WX-64 Amrep $ 79,615.14
*Carmenita Truck White WX-64 Pac-Mor FL835 $ 82,509.80
Cochran & Nichols White WX-64 Amrep $ 77,122.42
75-0264 *ALTERNATE BID
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CATEGORY III - (5) 25 CUBIC YARD REAR LOADERS
TOTAL BID
VENDOR CAB & CHASSIS BODY INCL. TAX
Inland Kenworth Kenworth L700 Pac Mor 12225 $440,696.75
*In1and Kenworth Kenworth L700 Dempster $438,853.97
Mack Truck Mack MR688S Dempster $458,847.50
*Mack Truck Mack MR688S Pac Mor $452,052.90
Carmenita Truck White WX-64 Pac Mor R12225 $436,587.50
*Carmenita Truck White WX-64 Dempster $443,610.00
Cochran & Nichols White WX-64 Pac-Mor 12225 $434,589.40
Specifications as bid have been reviewed with the Equipment
Superintendent who concurs that the primary bid in Category I, II
& III of Cochran & Nichols meets specifications and requirements.
It is therefore recommended that the bids be accepted for
contract. First year lease cost will be approximately $217,342.
The 1985/86 Refuse Fund Budget contains $334,976 for this
purpose. Funding will be included for the balance (4 years) in
subsequent Refuse Fund budgets.
The financing for the above equipment was also solicited.
Following is a summary of financing proposals.
Vendor
Cost Incl. Tax
Term
Frequency
Interest Rate
Payments
Total Cost
Vendor
Cost Incl. Tax
Term
Frequency
Interest Rate
Payments
Total Cost
Vendor
Cost Incl. Tax
Term
Frequency
Interest Rate
Payments
Total Cost
- First Interstate Bank
- $890,292.94
- 5 years
Semi-Annual in arrears
- 8.74%
- $111,796.12
- $1, 117,961 .00
- Security Pacific National Bank
- $890,293.00
- 5 years
Semi-Annual in arrears
- 8.10%
- $110,040.00
- $1,100,400.00
- Municipal Leasing Corp.
- $890,293.00
- 5 years
Semi-Annual in arrears
- 7.5985%
- $108,671.00
- $1,086,710.00
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The differences in cost of equipment shown in the summary of
financing proposals $890,293.00 and the final figure of
$891,352.94 is that the former was an estimate for purposes of
soliciting financing proposals, and the latter is the final
determination of costs of the actual equipment to be ordered in
accordance with the Department of Public Works Superintendent of
Equipment's instructions.
It is recommended the proposal of Municipal Leasing Corp. be
accepted to Finance the above refuse trucks and bid of Cochran
And Nichols be accepted for contract.
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RESOLUTION NO.
RESOLUTION OF' THE CITY OF SAN BERNARDINO AUTIlOIUZING TilE
PURCHASING AGENT TO ACQUIRE TEN (10) REFUSE TRUCKS CONSISTING OF:
CATEGORY I - 4 EACH - 35 CUBIC ~ARD FRONT LOADERS, CATEGORY II -
1 EACH 30 CUBIC YARD ROLL-OFF TRUCK, AND CATEGORY III - 5 EACH
25 CUBIC YARD REAR LOADERS TO B['; UTILIZED BY THE REFUSE
DEPARTMENT IN ACCORDANCE WITH SPECIFICATION NO. 1'-85-34 FROM
COCHRAN & NICHOLS AND AUTHORIZING AND DIRECTING THE EXECUTION
OF AN AGREEMENT WITH MUNICIPAL LEASING CORPORATION FOR FINANCING
OF SAID EQUIPMENT.
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCiL OF THE CiTY
OF SAN BERNARDINO AS FOLLOWS:
9 SECTION 1. Cochran & Nichols is the lowest responsible
10 bidder fc)r the furnishing and delivery
of ten refuse trucks in
11 accordance with Specification No. 1'-85-34, consisting of 4 each
12 of 35 cubic yard front loaders at a total cost of $379,641.12,
13 one each of 30 cubic yard roll-off refuse truck at a total cost
14 of $77,122.42, and five each of 25 cubic yard rear loaders at a
15 total cost of $43!~,589.l+0, for the total amount of $891,352.94;
16 lJu!'suant to this detendination all other bids therefor are hereby
17 rejected.
The Purchasing Agent is hereby authorized and
18 dire'~ted tc) aCf]lIlre said l-efuse trucks from said lowest
19 responsible bidder, by assigning this accepted bid to Municipal
20 Leasing Corp.
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SECTiON 2. Municipal Leasing Corp. is the lowest
22 reslJonsible bidder for furnishing financing for equipment in
23 accorda!lce with Bid SlJecification 1'-85-34 for the total amount of
24 $1,088,010.00; pursuant: to this determination, all other bius
25 therefor are hereby rejected, and the Purchasing Agent is h0reb)'
26 authorized and directed t(1 execute an agreellJent Oll behalf of the
27 Cit.)' for said financing by said lowest reslJollslble bidder; said
28 agreC'liIC:'lIt.is attached heret..), IlIarked Exhibit "A" and 11lcorJJ\jr,~Jteu
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by reference as though set forth at length.
I HERE.BY CERTIFY that the foregoing resolution was duly
adopted by the Mayor and Common Counc il of the City of San
Bernardino at a
meeting
thereof, held on the
the following vote, to wit:
, 1986, by
day of
AYES:
Council Members
NAYS:
ABSENT:
City Clerk
The foregoing resolution is hereby approved this __ day
of
, 1986.
Mayor()j""t1le Cl ty of San BernaraIii0--'
Approved as to form:
crty Attorney
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MUNICIPAL LEASING CORPORATION AGREEMENT
Dated as of: February 6, 1986
Agreement No.
86-1112M
CONTRACT PARTIES
MUNICIPAL LEASING CORPORATION DBA
MUNICIPAL FINANCE CORPORATION IN CALIFORNIA
8260 Greensboro Drive, Suite 225
McLean, Virginia 22102
A Virginia corporation,
hereinafter referred to
as "MLC".
CITY OF SAN BERNARDINO
300 North D Street
San Bernardino, California 92418
An agency or political subdivision
of the State of California
hereinafter referred to as
"Municipality" .
These addresses are to be used for all correspondence and notices (all notices are to
be by certified mail return receipt requested) from one party to the other and may be
changed by notifying the other party in writing.
THE PARTIES (MUNICIPALITY AND MLC) AGREE AS FOLLOWS:
I. DEFINITIONS
For purposes of this Agreement and related documents, the listed definitions will apply:
1.1 ACCEPTANCE DATE. Unless otherwise agreed to by the prior written consent of
MLC, it is defined as the acceptance by the Municipality of the first item of
equipment delivered under this Agreement.
1.2 ASSIGNEE. The person(s) or entity(ies) to whom MLC transfers its rights,
title and interest to a Schedule including the right to receive payments, a
security interest in the Equipment, and rights under the related Insurance.
1.3 EQUIPMENT. The goods enumerated on the attached Schedule(s).
1.4 RESERVE FUND. A fund established by MLC with a national banking association
for the benefit of Municipality and to assure the Investor or Registered
Owners the timely distribution of Payments due hereunder, and to provide
interest and principal payments to MLC's Assignee(s) subsequent to an event
described in Sections 7.1, 8.1, 8.2 or a loss occurring under Section 8.4
hereof.
1.5 SCHEDULE. The document signed by the parties which authorizes the
installation of Equipment by MLC, describes the Agreement term for that
Equipment, and Municipality's obligations with respect to payment; the
assignable contract.
1.6 TRANSACTION DOCUMENTS. The Agreement, the Schedule(s), and all related
documents.
II. PURPOSE
2.1 MLC sells Equipment listed on Schedule(s) to Municipality, for consideration
indicated in those Schedule(s).
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III. TERM
3.1 The term of each Schedule will begin on the Acceptance Date of the
Equipment listed thereon and will terminate, except as otherwise provided
herein, at the expiration of the number of periods indicated on such
Schedule.
IV. PAYMENT
4.1 AMOUNT AND TIMES OF PAYMENT. The total purchase price indicated in the
Schedu1e(s) will be paid in the Payment amounts set forth in the
Schedu1e(s). Charges will accrue from the Acceptance Date.
4.2 LATE CHARGES. Payments received more than fifteen days after the due date
will be subject to a late charge at the rate indicated in the appropriate
Schedule (or at the highest rate allowed by law, if less).
4.3 ABATEMENT OF PAYMENTS. There will be no abatement or reduction of
payments by the Municipality for any reason. It is the intention of the
parties that the payments be made in all events, unless the obligations to
pay such amounts are terminated as provided herein.
V. RESPONSIBILITIES OF MUNICIPALITY
5.1 CARE AND USE OF EQUIPMENT. Municipality, at its own expense, will obtain
remedial and preventive maintenance during the term of this Agreement to
keep the Equipment in good operating condition and appearance.
The Municipality agrees to use and provide maintenance for the Equipment
only in manner and to standards contemplated by the Equipment
manufacturer. Selection of the firm to provide maintenance coverage will
be subject to approval by MLC, which approval will not be unreasonably
withheld. Municipality agrees not to relocate the Equipment without the
prior written permission of MLC.
5.2 INSPECTION. with reasonable prior notice, Municipality will allow MLC to
enter the premises where the Equipment is located during normal business
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hours to inspect the Equipment in order to determine whether Municipality
is fulfilling its responsibilities,
5.3 INDEMNITY. Municipality hereby agrees to indemnify and save MLC harmless
from all liability, claims, loss, damage or expenses of any kind, made or
suffered by any party, during or after the term of this Agreement caused
directly or indirectly by the inadequacy of the Equipment, any
interruption or loss of service, any loss of business or other damage
resulting from any fault of or in the Equipment or arising out of the
ownership, selection, possession, operation, control, use, maintenance,
delivery or return of the Equipment, including but not limited to personal
injury, property damage, death or consequential damages. Indemnifications
shall include costs and expenses, including reasonable attorneys' fees
incurred in negotiations, trial or appeal by MLC in connection with any
claim or action resulting from any such liability. Municipality will be
credited with any amounts received by MLC from any liability insurance
secured by MLC.
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5.4 TAXES AND LICENSES. Municipality will comply with all laws and pay all
taxes relating to the Equipment and Municipality's obligatione hereunder,
including, but not limited to, sales and use taxes, gross receipts taxes
(including business and occupational taxes which are based on MLC'S gross
revenues related to this transaction), registration fees, license fees,
documentary stamp taxes, personal property and ad valorem taxes and all
other taxes, licenses and charges impoeed on the ownership, possession or
use pf the Equipment during the term of this Agreement, together ~ith any
interest and penaltiee. Notwithstanding the foregoing, Municipality will
not be obligated to pay taxes based solely upon MLC's net income.
5.5 ASSIGNMENT OR DELEGATION BY MUNICIPALITY. Municipality agreee not to
lease, aseign or transfer all or part of its rights and obligations under
this Agreement or in the Equipment.
5.6 DELIVERY OF RELATED DOCUMENTS. Municipality will sign or provide as
required the following documents satisfactory to MLC:
a) An Agreement certification confirming Municipality's Acceptance of the
Equipment as of the date installed.
b) An Opinion of Counsel confirming Municipality's authority, warranties
and representations.
c) An Opinion of Counsel confirming Municipality's capacity to issue
Obligations qualifying Municipality as a political subdivision within the
meaning of Section 103 of the Internal Revenue Code and the related'
regulations and rulings and that the portion of payments identified as
deferred interest charges to maturity, upon receipt, will not be
includable in Federal gross income under Statutes, regulations, court
decisions and rulings existing on the date of this opinion and
consequently will be exempt from present Federal income taxes and income
tax of the State of California.
d) Documents evidencing title and delivery.
e) Municipality's maintenance contract on Equipment.
f) Financing statements or other documents perfecting MLC's security
interest.
g) No-Arbitrage Certificate.
h) Written acknowledgement of assignment and other documents required by
the Assignee.
i) Municipality's liability insurance and casualty insurance policy
covering Equipment, if applicable.
j) Municipality's representations as to the essential nature and use of
the Equipment.
Municipality shall forward items b through j (as required) to MLC prior to
Equipment installation.
5.7 TRANSPORTATION AND INSTALLATION CHARGES. Municipality shall be
responsible for all charges relating to the transportation of Equipment to
Municipality's location and installation at such location. MLC may at its
option either prepay such charges and invoice Municipality or forward to
Municipality transportation and installation invoices as they are
received, whereupon Municipality shall remit payment in a timely manner.
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VI. EQUIPMENT
6.1 TITLE. Title to the Equipment will pass to the Municipality on the
Acceptance Date. Title will revert to MLC upon termination pursuant to
Article VII or VIII.
6.2 SECURITY INTEREST. The Municipality grants to MLC and MLC retains a
purchase money security interest in the Equipment. Municipality will not
change or remove any insignia or lettering which MLC may place on the
Equipment to indicate its interest therein. Until all inetallment
payments are made or prepayment is complete Municipality will keep the
Equipment free from any lien, encumbrance or legal procese and the
Municipality will promptly discharge any claim which might become a lien
or charge against the Equipment.
6.3 FILING. Municipality authorizes MLC to make MLC's security interest a
matter of public record by filings of any documents MLC deems necessary
for that purpose and to be responsible for any costs associated
therewith. Municipality agrees to sign or execute euch documents at its
expense to evidence its consent to the filings.
6.4 PERSONAL PROPERTY. The Equipment will remain personal property and not be
so affixed to realty as to change its character to a fixture or realty.
6.5 ALTERATIONS, ADDITIONS, ATTACHMENTS. In the event title to the Equipment
reverts to MLC, and at MLC's request, Municipality at its expense, will
remove all alterations, additions and attachments and repair the Equipment
as necessary to return the Equipment to the condition in which it was
furnished, reasonable wear and tear excepted. Any replacements or repair
parts are Equipment subject to the terms of the Agreement.
6.6 EQUIPMENT RETURN. Municipality is responsible for the return costs
related to the termination of this Agreement pursuant to Article VII or
VIII including deinstallation, rigging, drayage, freight, and insurance to
destination within the continental United States. Municipality will
provide MLC with a current Original Equipment Manufacturer's certificate
of maintainability and arrange and pay for such repairs necessary to
ensure that the manufacturer accepts the Equipment for contract
maintenance at its then standard rates. In the event Municipality fails
to provide such certificate, MLC may but is under no obligation to obtain
the certificate and any charges associated therewith will be borne by
Municipality.
VII. DEFAULT AND REMEDIES
7.1 DEFINITION. Any of the following events will constitute default under
this Agreement:
a) Municipality fails to make payment required when due, provided such
failure is not a direct result of an earthquake and does not continue
beyond such time as normal business operations are resumed, and such
failure continues after written notice by MLC for a period of fifteen (15)
days after receipt of such written notice; or
b) Municipality fails to observe or perform any other covenant,
condition, agreement or warranty of the Agreement and such failure
cont.inues for thirty (30) days without cure after MLC provides 0-.
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Municipality written notice of the failure. I ~ l:;Lf~
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c) Municipality becomes insolvent; makes an assignment for the benefit of
creditors; applies for or coneente to the appointment of a receiver,
trustee, coneervator or liquidator of Municipality or of all or a
substantial part of its assets: or a petition is filed by or against
Municipality under the Federal Bankruptcy Laws or any similar state or
federal laws providing for relief of debtors.
7.2 REMEDIES. If the Municipality defaults, MLC may at ite option do any or
all of the following:
a) Terminate this Agreement by providing written notice to Municipality.
b) Take poseession of the Equipment wherever situated without liability
for entering the premises;
c) Sell, lease or rent and use the Equipment at its sole discretion.
Municipality remains liable for arrears of payments, the costs of taking
poesession including storage and repair, court costs and attorney's fees,
sale or lease costs, and the balance due under the Agreement. The
proceeds of such sale or lease of the Equipment shall be applied toward
the balance due after deducting the aforementioned costs and payments.
For the purposes of this provision, the balance due ehall be equal to the
Prepayment Amount plus any principal deficiency in the Reserve Fund;
d) Declare immediately due and payable all monies during the Agreement
Term by providing written notice to Municipality: and
e) Take any court action at law or in equity to enforce performance of
the obligations or covenants of this Agreement and to recover damages for
the breach thereof.
Municipality shall remain liable
including all costs and expenses
Municipali ty.
for reasonable damages provided by law
incurred by MLC due to the default by
VIII.
TERMINATION
8.1 TERMINATION FOR NON-APPROPRIATIONS. Municipality's Obligations to pay any
amounts due for those fiscal periods succeeding the current fiscal period
are contingent upon legislative appropriation or approval of funds for
that purpose. Therefore, the Municipality may terminate this Agreement
with respect to not less than the entire Schedule effective as of the end
of any of its succeeding fiscal periods (the "Termination Date") by giving
MLC and its assigns sixty (60) days prior written notice of the
termination and advising MLC of the location(s) where the Equipment may be
found on the Termination Date. All obligations of Municipality to make
payments due after the Termination Date will cease and all interests of
Municipality in the Equipment will terminate. Notwithstanding the
foregoing, Municipality agrees (i) not to terminate a Schedule under this
provision if any funds are appropriated to it for the acquisition (by
either purchase or lease) of the Equipment or functionally similar
Equipment or Equipment performing similar applications and procedures for
the fiscal period in question and (ii) that it will use its best efforts
to obtain appropriation of the necessary funds to avoid termination of
each Schedule by taking all appropriate action including the inclusion in
Municipality's budget request for each fiscal period during the term
hereof a request for adequate funds to meet its obligations and to
continue the Schedule in force and (iii) that it will not give priority or
parity in the application of funds to any other functionally similar
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equipment for use by the Municipality, (iv) that if the Contract is terminated
pursuant to this Section 8.1, the Municipality will not in the then current or
succeeding fiscal years purchaee, lease or rent Equipment performing functions
similar to those performed by the Terminated Equipment, and agrees not to
permit functions similar to those performed through the use of the Equipment
to be performed by ite own employees or by any agent or entity affiliated with
or hired by Municipality. Municipality represente and warrants it has
adequate funde to meet its obligations during its current fiscal appropriation
period. Municipality acknowledges that the monies and securities in the
Reserve Fund shall be retained upon any Termination for the benefit of the
Investor or Registered OWners, and any deficiency in the principal amount of
the Reserve Fund shall be restored by Municipality, except, Municipality's
only responsibility shall be for a deficiency (Reeerve Fund Deficiency) in the
principal amount reeulting from MuniCipality's failure to timely make paymente
prior to the effective date of a non-appropriation of funds pursuant to this
Section 8.1.
8.2 PREPAYMENT. So long as Municipality is not in default, Municipality will have
the right, upon providing MLC with sixty (60) days prior written notice, to
prepay its obligation for the amount set forth in the Prepayment column on the
dates provided in the Schedule(s) plus the amount by which the principal
amount originally deposited in the Reserve Fund exceeds the principal amount
realized from such Fund upon its liquidation. Payment must be received by the
specific date established.
8.3 MUNICIPALITY'S RIGHTS ON PREPAYMENT OR PAYMENT IN FULL. Upon (i)
Municipality's exercise of its right of prepayment and/or (ii) Municipality's
having satisfied all of its monetary and other obligations hereunder, MLC will
release its security interest in the Equipment.
8.4 DESTRUCTION OF EQUIPMENT. In the event any of the Equipment is destroyed,
stolen or in the reasonable opinion of Municipality, damaged beyond economical
repair, Municipality shall give prompt written notice of such event to MLC and
its assigns. If MLC replaces such Equipment within 60 days of notification
then this Agreement will continue in force. Municipality at this time will
pay MLC for the replacement cost of the Equipment. If at the end of the sixty
day period the Equipment cannot be replaced then the Municipality will
immediately pay to MLC an amount in cash equal to that share of the Prepayment
Amount set forth in the appropriate Schedule(s) which is attributable to such
Equipment. Said amount shall be based on the percentage that the purchase
price of the Equipment bears to the total purchase price of all Equipment
included in such Schedule. There shall be no abatement of periodic payments
through the end of the sixty-day period. In the event there are insurance
proceeds covering this obligation in excess of the amounts due then such
excess shall be retained by Municipality. The Municipality agrees, upon
prepayment under the terms hereof, resulting from the total damage,
destruction, or theft of all the Equipment, to replenieh the Reserve Fund as
set forth in Section 8.1 of this Agreement.
IX. ASSIGNMENT BY MLC
9.1
ASSIGNMENT. Municipality understands that MLC contemplates separately
assigning (or reassigning) its right, title and interest in each SchedUle, the
Equipment listed thereon, and all rights to receive further payments to
another party ("Assignee"), subject to the rights of Municipality
hereunder. MuniCipality consents to such assignments and agrees to send
Oi~!GiNAt
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all Agreement notices to both MLC and its aseignees. All rights of and
indemnifications to MLC will inure to the Aesignee. Any such Assignee
will not be obligated to perform any of the obligations of MLC.
Municipality agrees to make payments required under the Schedule directly
to the Assignee without abatement or reduction of any kind. Municipality
will not aseert against any Aseignee or transferee of MLC's rights any
claim, any defense, counterclaim, offset or recoupment of any kind,
variety or nature which Municipality may now or hereafter have against MLC
whether accruing under the Agreement or otherwise.
9.2 ADVICE OF ASSIGNMENT. Upon assignment of MLC's interests to an Assignee,
MLC will cause a written notice of such assignment to be sent to
Municipality which shall be sufficient if it diecloses the name of the
Assignee and the address to which further payments hereunder should be
made. No further action will be required by MLC or by Municipality's
consent to the Assignment. Notwithstanding the foregoing, no such
assignment shall be effective against the Municipality unless the
Municipality receives notification in writing of such Assignment
designating the name and address of any such assign. In compliance with
Section 103(j) of the Internal Revenue Code, the Municipality agrees to
affix a copy of each notification of assignment to the Municipality's
counterpart of the Agreement.
X. WARRANTIES AND REPRESENTATIONS
10.1 WARRANTIES AND REPRESENTATION OF MUNICIPALITY. The Municipality
represents and warrants to MLC and, so long as this Agreement is in effect
or any part of Municipality's obligations to MLC remain unfulfilled, shall
continue to warrant at all times, that:
a) Municipality is a state or a duly organized and validly existing
political subdivision or agency thereof and has the power and authority to
enter into the Transaction Documents to which it is a party and to carry
out the terms thereof.
b) This Agreement and all other Transaction Documents and the performance
of Municipality's obligations thereunder have been duly and validly
authorized and approved under all laws and regulations and procedures
applicable to Municipality, the consent of all necessary persons or bodies
has been obtained and all of the Transaction Documents executed by
Municipality have been duly and validly executed and delivered by
authorized representatives of Municipality and constitute valid, legal and
binding obligations of Municipality enforceable against Municipality in
accordance with their respective terms.
XI. DISCLAIMER OF WARRANTIES
11.1 The Municipality acknowledges that the Equipment is of a size, design and
capacity, and manufacture selected by the Municipality. MLC is not a
manufacturer of the Equipment.
11.2 MLC MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS OR
IMPLIED, RELATING TO THE EQUIPMENT OR PATENTS RELATING THERETO; AND MLC
HAS EXPRESSLY MADE NO WARRANTY AS TO THE VALUE, DESIGN, CONDITION,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE EQUIPMENT.
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11.3 MLC will not be liable to the Municipality for any liability, loss or
damage caused or alleged to be caueed, directly or indirectly, by the
Equipment or by any inadequacies thereof or deficiency or defect therein,
by any incident whatsoever in connection therewith or in any way related
to or arising out of this Agreement. Notwithstanding the foregoing, the
Municipality will be entitled to the benefit of any available
manufacturer's warrantiee. MLC agrees to execute and deliver such further
instrument as may be neceseary, in the reasonable opinion of the
Municipality, to enable it to enforce such warranties and obtain the
warranties and service furniehed for the Equipment by the manufacturer.
XII. GENERAL
12.1 WAIVER. No delay or omission by the parties in exerc1s1ng any right in
any of the Transaction Documents ehall operate as a waiver of that or any
other right and no single or partial exerciee of any right ehall preclude
the parties from any or further exercise of any right or remedy.
12.2 HEADINGS. All section headings contained herein are for clarification and
convenience of reference only and are not intended to limit the scope of
any provision of this Agreement.
12.3 SEVERABILITY. In the event any portion of this Agreement shall be finally
determined by any court of competent jurisdiction to be invalid or .
unenforceable, such provision shall be deemed void and the remainder of
this Agreement shall continue in full force and effect.
12.4 AMBIGUITY. The parties to this Agreement, and each of them, hereby
represent that the language contained herein is to be construed as jointly
proposed and jointly accepted, and in the event of any subsequent
determination of ambiguity, all parties shall be treated as equally
responsible for any such ambiguity.
12.5 GOVERNING LAWS. This Agreement shall be construed in accordance with and
governed by the laws of the state where Municipality's principal place of
operations exists.
12.6 IMPLEMENTATION. This Agreement shall be implemented through Schedule(s).
For purposes of construing a transaction as an integrated agreement and
for the purposes of the provision of Article IX, the following shall be
considered a single transaction and legal and binding Agreement:
a) The Agreement, which provides basic terms and conditions.
b) A Schedule.
12.7 AMENDMENT. Any of the Transaction Documents may only be amended in
writing by Obtaining the signature of the parties. No assigned
Transaction Document may be modified without the prior written consent of
Assignee.
12.8
EXECUTION. Each Schedule may be executed in any number of counterparts
but only the counterpart that is labeled, "Original" will be deemed to be
the original Schedule for purposes of perfection of a security interest
therein and shall be the only counterpart which may be transferred and
given to transfer the rights of MLC thereunder. This Agreement and
Schedule(s) issued pursuant thereto shall not be effective until accepted
(as evidenced by an authorized signature) by MLC.
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12.9 FORMATION OF AGREEMENT. MLC shall not be bound by this Agreement until it
is excecuted by an officer of MLC.
XIII. SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as
of the day and year first above written.
MUNICIPAL LEASING CORPORATION DBA
MUNICIPAL FINANCE CORPORATION IN CALIFORNIA CITY OF SAN BERNARDINO
BY: BY:
NAME: NAME:
TITLE: TITLE:
DATE: DATE:
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Dated as of: Pebruary 6, 1986
To Agreement No.: 86-1112M
THIS SCHEDULE is issued pursuant to Agreement dated as of Pebruary 6, 1986,
between the parties to the Agreement to authorize installation of the
Equipment listed herein. All terms used herein have the meanings ascribed to
them in the Agreement.
A. EQUIPMENT ACQUISITION PUND. Upon receipt of the Agreement Certification
and for the purpose of ensuring that adequate monies are available to pay
the purChase price of the Equipment when due, Municipality acknowledges
that MLC shall establish an Acquisition Pund at a bank or trust company in
the United States. All monies in such Pund shall be invested in general
obligations of the United States or in obligations fully guaranteed by the
United States or in certificates of deposit of a bank or banks fully
collateralized by such federal or federally guaranteed obligations. MLC
covenants to Municipality that the Acquisition Pund as hereinafter
mentioned, shall be of sufficient size to pay on behalf of Municipality
the purchase price of the Equipment thirty days after the date of
acceptance or after receipt of the Agreement Certification, whichever is
later. Any amount available in excess of the foregoing is to be
distributed to MLC as payment for services rendered to Municipality.
B. RESERVE FUND. Municipality acknowledges that MLC may enter into a Paying
Agent Agreement with a national banking association ('Bank') to be
selected by MLC for the purpose of establishing a Reserve Fund for the
benefit of the Municipality and to assure MLC or its assignee(s) of timely
distribution of Payments due from Municipality under the Agreement, or
which would have been due but for the exercise of the privilege set forth
in Section 8.1, and to provide interest payments to MLC or its assignee(s)
subsequent to an event described in Sections 7.1, 8.1, 8.2 or a loss
occuring under Section 8.4 of the Agreement.
Amounts held in the Funds will be invested in a manner so as not to
constitute an 'arbitrage bond' within the meaning of Section 103 of the
Internal Revenue Code. MLC covenants that provided that Municipality
makes all payments when due, amounts set aside on behalf of Municipality
in the Reserve Fund shall be sufficient to pay the amounts due from
Municipality designated in Paragraph C below as being derived from the
Reserve Fund. In the event that the Reserve Fund is liquidated in whole
or in part to make Payments on behalf of the Municipality, the delinquent
payment and any applicable late payment charges shall be deposited in and
reinvested in the Reserve Pund, and Municipality agrees to deposit an
additional amount in the Certificate Fund with the Paying Agent on each
Payment due date equal to so much of the payment indicated in Column 4 of
Paragraph C below as exceeds the investment income then available from the
Reserve Fund indicated.
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C. PAYMENTS. The first payment shall be due on the date of acceptance and each
subsequent payment shall be due on the same day of each semi-annual period
thereafter.
PAYMENT SCHEDULE-
1 2 3 4 5 6
Amounts
Transferred
Amount Prom:
Payment Payment Allocable Reserve Net Prepayment
Number Amount to Interest Fund Payment Amount"
1 $108,801.00 l 0.00 0.00 $108,801.00 $827,723.90
2 108,801.00 37,052.58 . 108,801.00 747,893.24
3 108,801. 00 33,655.41 . 108,801.00 665,268.50
4 108,801. 00 30,097.39 . 108,801. 00 579,751.90
5 108,801. 00 26,370.90 . 108,801. 00 491,242.21
6 108,801.00 22,467.96 . 108,801. 00 399,634.69
7 108,801. 00 18,380.23 . 108,801. 00 304,820.91
8 108,801.00 14,098.95 . 108,801. 00 206,688.64
9 108,801. 00 9,614.96 . 106,801.00 105,121. 74
10 108,801.00 4,918.66 . 108,801.00 0.00
-Upon written notice to Municipality, Columns 2, 3 and 4 and the Principal Amount of
the Reserve Fund are subject to change in accordance with MLC's special tax
counsel's determination of permissible investments and yields provided that Columns
5 and 6 shall not be modified.
-.The Prepayment Amount is due on the date specified in the Payment Schedule above
and is in addition to the payment then due. Such amount excludes distribution of
the $ 0.00 principal amount of the Reserve Fund, which will continue to be
self-amortized in accordance with the schedule of payments or liquidated at the
option of MLC.
D. LATE PAYMENTS. There will be a charge of 1.5% per month based on the amount of
any late payments.
E. FISCAL YEAR. The Municipality's fiscal period is from July 1 to June 30.
F. PREPAYMENT AND TERMINATION AMOUNTS. The Prepayment Amount as provided in the
Agreement is set forth in Paragraph C above.
G. DEFERRED INTEREST TO MATURITY. Deferred interest charges to maturity are as set
forth in column 3 of Paragraph C above.
H.
INSURANCE: RISK OF LOSS. AS against MLC, Municipality shall bear all risk of
loss or damage to the Equipment until the Equipment is returned to MLC pursuant
to Agreement Article VII or VIII. Municipality shall keep the Equipment insured
against all risk of loss or damage from every cause whatsoever for not less than
the amounts of the prepayment referenced in Paragraph 8.4 of the Agreement.
Municipality shall carry public liability insurance for bodily injury and
property damage. All insurance shall be in form and amount with the companies
of recognized responsibility satisfactory to MLC. The insurance shall provide
for at least 10 days advance written notice of cancellation to MLC and its
assigns. All insurance for loss or damage shall provide that MLC or its assigns
shall be the additional assured and the loss payee. Municipality shall pay all
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premiums and deliver evidence satisfactory to MLC of such insurance coverage.
The proceeds from any such insurance payable as a result of loss or damage to
the Equipment shall be applied a) toward the replacement, restoration or repair
of Equipment that may be lost, stolen, destroyed, damaged, and b) toward payment
of the obligations of Municipality hereunder.
I. EQUIPMENT DESCRIPTION. The Equipment as defined in the Agreement includes the
following:
Quantity
4
Description Purchase Price
Cochran , Nichols White WX-64
35 Cubic Yard Amrep Front Loaders
Payment Amount
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1 Cochran , Nichols White WX-64
30 Cubic Yard Amrep Roll-Off Truck
5 Cochran , Nichols White WX-64
25 Cubic Yard Pac-Mor 12225 Rear Loaders
$891,352.94 See Paragraph B
10 Semi-
Annual
Payments
THE TERMS GOVERNING THIS SCHEDULE ARE CONTAINED IN THE AGREEMENT REFERENCED ABOVE
AND APPLY WITH THE SAME FORCE AND EFFECT AS IF SET FORTH FULLY HEREIN. THIS
SCHEDULE IS SEPARATELY ASSIGNABLE.
MLC shall not be bound by this Agreement until it is executed by an officer of MLC.
MUNICIPAL LEASING CORPORATION DBA
MUNICIPAL FINANCE CORPORATION IN CALIFORNIA
CITY OF SAN BERNARDINO
BY:
BY:
NAME:
NAME:
TITLE:
TITLE:
DATE:
DATE:
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