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HomeMy WebLinkAbout13-Finance ell If OF SAN BERNARDI...D - REQUE.___ T FOR COUNCIL AC., .ON From: Dean R. Meech, Purchasing Agent Sub~ct: Automated Refuse Trucks (3 each) Side Loading Dept: Purchasing Date: November 22, 1988 Bid: F-88-15 ~ Synopsis of Previous Council action: Bid F-88-15 Resolution: 88/272 Authorizing Purchase of Automated Refuse Trucks Recommended motion: Adopt Resolution - Funding Contact perlon: Dean R. Meech. Purchasing Agent Phone: 1A4-l\nAI\ Supporting data attached: Yes Ward: N/A FUNDING REQUIREMENTS: Amount: $82,126.00 Source: (ACCT. NO.) 127-412-55782 (ACCT. DESCRIPTION) Refuse Trucks Finance: 0\ ,'~"'" J ;/\ , ;.r .-' - .---. ' , " Council Notes: Agenda Item No. /3 CIT. OF SAN BERNARDI~.J - REQUE~1 FOR COUNCIL ACT,,~N STAFF REPORT F-88-15 The proposed purchase is for a Lease Purchase Fi nanci ng Agreement for three (3) refuse trucks to be utilized in daily operations by the Refuse Department. At the request of the department, appropri ate speci fi cati onswere prepared, published and furnished to area suppliers. Bids were publicly opened and declared on May 11, 1988. The vehicles were purchased 8-3-88 per Council Resolution 88-272 dated 7-18-88 and Purchase Order Number 903277. The attached resolution authorized the Lease Purchase Agreement for funding. . Total funding is to be a five (5) year lease purchase at 7.19% interest with semi-annual payments in arrears, each payment at $41,335.50. Total payout is $413,355.00. Account Number: 127-412-55782 75-0264 1 RESOLUTION NO. 2 RESOLUTION O~' 'I'HE Cl'I'Y OF SAN BERNARDINO AUTHORIZING AND IRECTING THE EXECUTION OF AN AGREEMENT WITH PACIFICORP CAPITAL, 3 INC., FOR THE LEASE-PURCHASE FINANCING OF AUTOMATED REFUSE 4 'RUCKS. 5 6 7 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY SAN BERNARDINO AS FOLLOWS: SECTION 1. The Mayor of the City of San Bernardino is ereby authorized and di.rected to execute for and on behalf of 8 said City an Agreement with Pacificorp Capital, Inc., for the 9 lease-purchase financing of three automated refuse trucks, as 10 authorized by Resolution 88-272. A copy of said Agreement is 11 attached hereto as Exhibit "A" and incorporated herein by 12 reference as though fully set forth at length. 13 SECTION 2. This Agreement shall not take effect until 14 fully signed and executed by both parti.es. The City shall not be 15 obligated hereunder unless and until the AgreeI1lent is fully 16 executed and no oral agreement relating thereto shall be implied 17 or authorized. 18 I HEREBY CERTIFY that the foregoing resolution was duly 19 adopted by tbe Hayor and Common Council of the City of San 20 Bernardino at a meeting held on the day --_. _._. - -- 21 of 1988, by the following vote, to wit: - _. - ---.-.-..--' 22 23 24 25 26 27 28 AYES: Council Members NAYS: ABSENT: City Clerk 1 DCR:rnw RESOLUTION OF THE CI~Y AUTHORIZING AND DIRECTING THE EXECUTION OF AN AGREEMENT WITi IACIFICORP CAf AL, INC. FOR THE LEASE-PURCHASE FINANCING OF AUTOMATED REFUSE TRUCKS. 1 2 day The foregoing resolution is hereby approved this 3 of 4 , 1988. EVLYN-Wli;cox-, - Mayor- - - - - - -- --- City of San Bernardino ) 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: 1. 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 Insura~ce. 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). O .-. ~ :.-, .... · .\ l' . J " ." \" , - ~ ~ .... "'--' ~ '(I' '-tt. -1- 8214F H'YHTRTT nAn ) 1 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 Schedule(s) will be paid in the payment amounts set forth In the Schedule(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, vill 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 vill not be unreasonably withheld. Municipality agrees not to relocate the Equipment vithout 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 hours to inspect the Equipment in order to determine whether Municipality is fulfilling its responsibilities. I : 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. -2- 0,. .... ...., ., L .'~ :v~i ~J-\ 8214F ) " 5.4 TAXES AND LICENSES. Municipality will comply with aUlaws'(1l4 ~y all taxes relating to the Equipment and Municipality's obligations 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 ta~es ,and all other taxes, licenses and charges imposed on the ownerShip, possession or use of the Equipment during the term of this Agreement, together ~ith any interest and penalties. 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 agrees not to lease, assign 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 E9uipment as of the date installed. ~) 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. I' 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. -3- 0.. .,-" ....'-1 r\L i'~ \..:;. j '"'4i"\ 8214F ) l VI. EQUIPMENT 6.1 TITLE. ~itle 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 installment payments are made or prepayment is complete Municipality will keep the Equipment free from any lien, encumbrance or legal process 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 such 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 continues for thirty (30) days without cure after MLC provides 0 r""\ -.' ',-I ^L Municipality written notice of the failure. ,'" l;; 14 '"'lJ-\ -4- ,.. ""', .... ) ") c) Municipality becomes insolvent: makes an assignment for the benefit of creditors, applies for or consents to the appoint~ent of a receiver, trustee, conservator 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 its option do any or all of the following: a) Terminate this Agreement by providing written notice to Municipality. b) Take possession 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 possession 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 shall 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 MunicipalitYt 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 for reasonable damages provided by law including all costs and expenses incurred by MLC due to the default by Municipality. 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 O~~JGJ'~AL -5- O"'''D -') ') 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 purchase, 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 its own employees or by any agent or entity affiliated with or hired by Municipality. Municipality represents and warrants it has adequate funds to meet its obligations during its current fiscal appropriation period. Municipality aCknowledges that the monies and securities in the Reserve pund shall be retained upon any Termination for th~ benefit of the Investor or Registered Owners, and any deficiency in the principal amount of the Reserve Pund shall be restored by Municipality, except, Municipality's only responsibility shall be for a deficiency (Reserve pund Deficiency) in the principal amount resulting from Municipality's failure to timely make payments 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 Pund exceeds the principal amount realized from such Pund upon its liquidation. Payment must be received by the specific date established. 8.3 MUNICIPALITY'S RIGHTS ON PREPAYMENT OR PAYMENT IN PULL. 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 replenish 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 (WAssigneeW), subject to the rights of Municipality hereunder. Municipality consents to such assignments and agrees to send 0:21 r:;;~"lii -6- ) ) all Agreement notices to both MLC and its assignees. All rights of and indemnifications to MLC will inure to the Assignee. 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 assert against any Assignee 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 discloses 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. -7- O I.'" 0\, I A r .'~i0ir~AL 8214F .. ) ) 11.3 MLC will not be liable to the Municipality for any liabUity,lo,s or damage caused or alleged to be caused, 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 warranties. MLC agrees to execute and deliver such further instrument as may be necessary, in the reasonable opinion of the Municipality, to enable it to enforce such warranties and obtain the warranties and service furnished for the Equipment by the manufacturer. XII. GENERAL 12.1 WAIVER. No delay or omission by the parties in exercising any right in any of the Transaction Documents shall operate as a waiver of that or any other right and no single or partial exercise of any right shall 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 Agr,ement. 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 ScheduleCs). 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 ScheduleCs) issued pursuant thereto shall not be effective until accepted Cas evidenced by an authorized signature) by MLC. -8- O':'G'" r Al a ~. f tj '4i\ _ . . \ '~ '''';;>''''.~ "f- 12.9 FORMATION OF AGREEMENT. MLC shall not be bound by this A9re~lJl~fl!t!-;.~ntU it is excecuted by an officer of MLC. XIII. SIGNATURES '. .'._,>' ;,:':>,)"'~'f:~:F,;'/~;.;,; ,,:,;:; IN WITNESS WHEREOF, the parties hereto have caused this Agreement tobe'""executed as of the day and year first above written. MUNICIPAL LEASING CORPORATION DBA MUNICIPAL FINANCE CORPORATION IN CALIFORNIA CITY OF BY: 1~;lL~~.4~.~. BY: NAME: W/lLIA-fI1 S. fl'I~~7'(, JI{ TITLE: f),,(nrol{ of t:c~;If<Tt; DATE: .~!13 lSOt. NAME: Dean TITLE: Purchasinq Aqent DATE: March' 5. 1986 .1:. 8214F -9- o."~jG~;\JAL EXHIBIT A MODIFICATION NO. 1 Dated as of July 1, 1988 Agreement NO: 1112 Modification No. 1 dated July 1, 1988 to Agreement No. 1112 dated as of February 6, 1986 and all schedules thereto (the "Agreement") between Municipal Leasing Corporation, as MLC, and the City of San Bernardino, as Municipality. 1. It is acknowledged that MLC has, prior to the date hereof, been merged into Systems Leasing Corporation, and that the name of the surviving corporation is "PacifiCorp Capital, Inc." and its State of incorporation is Virginia. It is further acknowledged and agreed that as a result of the foregoing, Pacificorp Capital, Inc. has succeeded to all rights and interests of Municipal Leasing Corporation under the Agreement and any and all Purchase Orders or subcontracts issued thereto. In connection therewith, the name "PacifiCorp Capital, Inc." is substituted for the name Municipal Leasing Corporation in the Agreement in each place where the name "Municipal Leasing 'Corporation" appears, and any and all Purchase Orders or subcontracts issued which may hereafter be acknowledged by MLC under the Agreement shall be issued to PacifiCorp Capital, Inc. in its own name (with the same force and effect as if PacifiCorp Capital, Inc. were originally named as "MLC" under the Agreement. 2. Municipality agrees to appoint PacifiCorp Capital, Inc.'s assigns as its agent for the purpose of maintaining a book entry system as required by the Internal Revenue Code of. 1986. 3. No more than 10% of the use of any unit of the Equipment in any month will be by persons or entities other than the Municipality or its employees on matters relating to such employment, and no more than 5% of use of any Unit of the Equipment in any month will be unrelated to use by or for the Municipality. No management contract shall be entered into with respect to any unit if the Equipment unless (a) at least half the compensation is on a periodic, fixed-fee basis; (b) no compensation is based on a share of net profits and (c) the Municipality is able to terminate the contract without penalties at the end of any three years. 4. As an inducement of PacifiCorp Capital, Inc. to enter into this Agreement, Municipality agrees to cooperate with PacifiCorp Capital, Inc. in the assimilation and verification of information with regard to any matters whatsoever concerning this Agreement, and further agrees to execute such documentation as may be required for the purpose of properly reporting this Agreement including, without limitation, IRS form 8038G or 8038GC, as required under the Internal Revenue Code of 1986 or any related rulings and regulations thereunder. ORIGINAL MOdification No. 1 Aqreement 1112 paqe 2 5. The Agreement, as amended hereby, shall continue in full force and effect in accordance with its terms. IN WITNESS WHEREOF, the undersigned have executed this Modification as of the date first above written. PACIFICORP CAPITAL, INC. as successor to Municipal Leasinq corporation CITY OF SAN BERNARDINO Municipality By By Name Name Title Title ORIGINAL Dated as of: July 1, 1988 EXllIBIT B SCHEDULE NO. 2 To Agreement No.: 1112 THIS SCHEDULE is issued pursuant to Agreement dated as of February 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. paYment No. 1 shall be due six months from the date of acceptance, and subsequent paYments shall be due semi-annually thereafter as set forth hereunder: Payment Number PaYment Amount 1 2 3 4 5 6 7 8 9 10 41,335.50 41,335.50 41,335.50 41,335.50 41,335.50 41,335.50 41,335.50 41,335.50 41,335.50 41,335.50 Interest portion 12,299.76 11,255.91 10,174.53 9,054.28 7,893.75 6,691. 50 5,446.03 4,155.78 2,819.15 1,434.45 prepaYment Amount 319,974.80 288,638.52 256,322.97 222,997.56 188,630.74 153,189.95 116,641. 63 78,951.18 40,082.91 90.00 B. LATE PAYMENTS. There will be a charge of 1.5% per month based on the amount of any late paYments. C. FISCAL YEAR. The Municipality's fiscal period is from July 1 to June 30. D. PREPAYMENT AND TERMINATION AMOUNTS. The PrepaYment Amount will be due in addition to and concurrently with the paYment then due. E. DEFERRED INTEREST TO MATURITY. Deferred interest charges to maturity are as set forth above. G. INSURANCE: RISK OF LOSS. As against PCC, Municipality shall bear all risk of loss or damage to the Equipment until the Equipment is returned to PCC pursuant to Agreement Article VII or VIII. The Municipality agrees to hold harmless and indemnify PCC from all liability for damages to the equipment or personel injury arising out of the use of the Equipment. The Municipality further agrees to secure self - insurance for the Equipment for the duration of the Lease term and to complete Exhibit A hereto describing such self - insurance program. ORt G\ i\l /', ! I \j fJ\ I... Schedule No. 2 Agreement 1112 page 2 H. EQUIPMENT DESCRIPTION. The Equipment as defined in the Agreement includes the following: EQUIPMENT LIST Quantitv Description Serial Number Total Cost 3 Model 320, Automated Refuse Vehicle, Formula 7000 $ 321,248.68 Subtotal Sales Tax Total Financed Amount $ 321,248.68 $ 20,881.16 $ 342,129.70 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. PCC shall not be bound by this Agreement until it is executed by an officer of PCC. PACIFICORP, CAPITAL, INC. CITY OF SAN BERNARDINO BY: TITLE: DATE: BY: TITLE: DATE: ORIGINAL EXHIBIT C AGREEMENT CERTIFICATION Dated as of: July 1, 1988 Agreement No. 1112 CONTRACT PARTIES PacifiCorp Capital, Inc. 1801 Robert Fulton Drive Third Floor Reston, Virginia 22901-4347 A Virginia Corporation herein after referred to as "PCC" City of San Bernardino San Bernardino, California An Agency or political subdivision of the State herein after referred to to as "Municipality" In accordance with the Schedule No.2, we hereby confirm the following for the equipment described thereon: 1. USE: The primary uses and applications of the Equipment are as follows: 2. EQUIPMENT LOCATION: The Equipment is installed at the following address: 3. INSURANCE: We certify that property damage and liability insurance has been secured in accordance with the Agreement and such coverage will be maintained in force for the term of the Agreement. PacifiCorp Capital, Inc. will be designated loss payee until we are notified, in writing, to substitute a new loss payee. A copy of the policy endorsement will be provided. 4. MAINTENANCE: We certify that we have contracted for equipment maintenance service and will keep such coverage in force for the term of the Agreement. A copy of the maintenance contract will be provided. 5. as of ACCEPTANCE: The first item of equipment is delivered and accepted FOR: BY: Signature NAME: Print TITLE: ORIGINAL EXH:IB:IT D Agreement No. 1112 NO-ARB:ITRAGE CERT:IF:ICATE Pursuant to Treasury Regulations {1.103-13(a) (2), the City of San Bernardino (herein called the "Municipality") hereby certifies, with respect to "PacifiCorp, Capital, Inc. Agreement" dated as of December 4, 1987, Contract No. 1112, Schedule 2 (herein called the "Agreement"), as follows: 1. The Agreement is being entered into by the Municipality to provide for the lease of certain equipment (herein called the "Equipment"), by the Municipality to be used by the Municipality at its governmental offices. The Agreement provides that under the terms and upon the conditions provided therein, the Municipality, at its option, may purchase the Equipment. 2. The Agreement provides that PCC shall lease the Equipment to the Municipality, and that the Municipality shall pay to PCC semi-annual rental payments (herein called the "Rental Payments"). As specified in the Agreement, a portion of each Rental Payment is designated as interest in accordance with the schedule attached hereto. 3. The Agreement will commence upon the date of acceptance of the Equipment and will continue until either (i) the Municipality makes all of the Rental Payments as required by the Agreement, or (ii) the Municipality exercises the purchase option as set forth in the Agreement and all interest of PCC or its assigns in the Equipment terminates, or (iii) the Agreement is otherWise terminated in accordance with its terms, in which case PCC or its assigns may retain an interest in the Equipment. 4. The Municipality will not receive any proceeds or other consideration for its payment of the Rental Payments pursuant to the Agreement other than the use of the Equipment, and it is reasonably expected that the Municipality will not sell or otherwise dispose of the Equipment prior to the termination of the Agreement. 5. It is expected that Rental Payments under the Agreement will be paid from annual appropriations of the Municipality deposited into the Operating Fund of the Municipality, that such appropriations will equal Rental Payments during each payment period, and that all amounts paid for Rental Payments will be from an appropriation made by the Municipality during the fiscal year in which such Rental Payment is made. No other fund or account, except as authorized or established pursuant to the Agreement, will be used directly or indirectly to pay Rental Payments under the Agreement nor is any other fund pledged as security for the payment of Rental Payments under the Agreement. ORIGf~JAL Agreement No. 1112 NO-Arbitrage certificate Page Two 6. Nothing in this certificate shall diminish any rights or benefits of the Municipality under the Agreement. 7. The Municipality agrees that it will not use or permit the use of the Equipment by any person not an "exempt person" within the meaning of section 103(b) (3) of the Internal Revenue Code of 1954, as amended, or by an "exempt person" (including the Municipality) in an "unrelated trade or business" within the meaning of section 513(a) of said code, in such manner or to such extent as would result in the loss of exemption from federal income tax under section 103 of said code of the portion of Rental Payments designated as interest. 8. The Commissioner of Internal Revenue has not published notice in the Internal Revenue Bulletin that the Municipality is disqualified and may not certify obligations under Treasury Regulations {1.103-13(a) (2), nor has the Municipality been advised that such action is contemplated. To the best of the knowledge and belief of the undersigned, there are no other facts, estimates, or circumstances that would materially change the expectations of the Municipality as set forth herein, and said expectations are reasonable. The undersigned is an officer of the Municipality responsible for executing the Agreement and is acting for and on behalf of the Municipality in executing this certificate. Dated: CITY OF SAN BERNARDINO Municipality By Title ORIGINAL EXHIBIT E (To be submitted on Municipality's Letterhead) ESSENTIAL USE LETTER Date: PacifiCorp, Capital, Inc. 1801 Robert Fulton Drive Third Floor Reston, virginia 22091-4347 RE: Agreement dated as of December 4, 1987, between PacifiCorp Capital, Inc. and the City of San Bernardino, Contract No. 1112, Schedule No.2. Gentlemen: This letter is being written with respect to the use of the property (hereinso called) to be sold to the undersigned under the above-referenced Agreement. The property will be used by for the following purposes: (Department or Division Using Equipment) (state how and for what purposes the property will be used) The undersigned hereby represents that the use of the property is essential to its proper, efficient and economic operation. Very truly yours, CITY OF SAN BERNARDINO Municipality By: Title: EXHIBIT F IRS FORM 8038-G There are four sections of the IRS Form 8038-G you must complete as described below: section 2. Fill in your employer identification number (EIN). section 4. Fill in the second blank. This number reflects the number of Form 8038-G you have submitted so far this year. Signature block. Remember to include an authorized signature, the date, and the title of the authorized signatory. PCC has prepared this form and any necessary estimates in accordance with its understanding of the new IRS policy. To the extent you are relying on information provided by PCC, we certify that, to the best of our knowledge, the information is complete and correct. As timely filing of this tax form is imperative, please return it at your earliest convenience after acceptance. Thank you for your assistance and prompt attention to this matter. o...~l'PIf"" tt t..... t"U","" ....1'."'"' .,......"...., ~.~t Information Return for Tax-Exempt Governmental Bond Issues . U"II., S.Ch." 1.'1'1 (U" '0.... 1(\)8 C,C " "',,' ,..ct h .."h' "00 000) O......I!IooI!lOllO l.~'" 1l-)I-19 f.... 803 8-G (Ott,"'tl,. 1986) I '"'''''''''''' Ctlrck bol ,I Amtnded Rt'urn . I .....-.I.~.. .,...",y'.... .......~ City of San Bernardino J ...."'"..fIC 111,,1 Purchasing De t., . ..,.,,-.. 250 Cluster St. C 19 e ....8...- 6 0.........- I C.".. ,_ .111. .fIC ,., coo. San Bernardino, CA 92408 T pf of luue (check bOI(u that appltu) 7 . , 10 11 12 13 14 15 16 ChfCk bo.lf bondi .rt tll Ofothfr rtvfnut anhCIp'hon boneli. Chtck bollf boneli Irt in tht fOlm of Iluu or ,nit,IIment nit. o Eeluutlon . o Hulth Ind ho\pit.1 o Trln\portl'ion o PubliC nft'y . o Environmtnt (Includlnl $tw'lf bonO\) o Hou\lnl o Utih\lu e9 Olhtr Oucr.bf (\te In\'ructIOM). o g ...... "'c, . . . Administrative Outription of Bonds ('1 ...,.",,1111' ('I tel 19 20 21 22 23 2~ 342,129.84 . I : Procteds used for Iccrutd Internl . 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U>'"'P'"' ~ \""." 0'0" (.. c.'' ~ 1.", EXHIBIT G SAMPLE OPINION LETTER TO BE EXECUTED ON COUNSEL'S LETTERHEAD PacifiCorp, Capital, Inc. 1801 Robert Fulton Drive Third Floor Reston, Virginia 22091-4347 Gentlemen: We are counsel to the City of San Bernardino, (the "Municipality"), and, in that capacity, we have examined an Agreement, Agreement No. 1112, (the "Agreement"), and Schedule 2 thereto, between the Municipality and PacifiCorp, Capital, Inc. ("PCC") dated as of December 4, 1987. As a result of our examination of the Agreement and such other examinations as we deemed appropriate, we are of the opinion as follows: (a) The Municipality is a public body corporate and politic and is authorized by the Constitution and laws of State of California to carry out its obligations under the Agreement; (b) The Agreement has been duly authorized, executed and delivered by ** , and constitutes a valid, legal and binding agreement, enforceable in accordance with its terms; (c) No approval, consent or withholding of objection is required from any governmental authority with respect to the entering into or performance by the Municipality of the Agreement and the transactions contemplated thereby; (d) The entering into and performance of the Agreement will not violate any judgment, order, law or regulation applicable to the Municipality or result in any breach of, or constitute a default under, or result in the creation of any lien, charge, security interest or other encumbrance upon any assets of the Municipality or on the equipment subject to the Agreement pursuant to any instrument to which the Municipality is a party or by which it or its assets may be bound; (e) The equipment is personal property and when subject to use by the Municipality will not be or become fixtures under the law of the State of California; (f) The Municipality is 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; and (g) There are no actions, suits or proceedings pending or to our knowledge, threatened against or affecting the Municipality in any court or before any governmental commission, board or authority which, if adversely determined, will have a material adverse effect on the ability of the Municipality to perform its obligations under the Agreement. Very truly yours, **PERSON SIGNING DOCUMENTS EXHZBZT H SAMPLE NOTZCE OF ASSZGNKENT LETTER Date: TO: City of San Bernardino 300 North D Street San Bernardino, California 92418 RE: Agreement dated as of December 4, 1987 between PacifiCorp, Capital, Inc. and the City of San Bernardino, Contract No. 1112. Gentlemen: Please be advised that pursuant to the Agreement, PacifiCorp, Capital, Inc. ("PCC") is assigning all of its right, title and interest in, to and under the Lease to: SAMPLE All payments and no~ices in connection with the Agreement are to be sent to: SAMPLE with a copy of any notices to PCC. The terms of the Assignment specify that PCC shall continue to perform all obligations and duties required of PCC under the Agreement, and the Assignee shall not be responsible for performance of any such obligations or duties. 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. We request that this notice of assignment be acknowledged by signing in the space provided below and returning a copy to us. Sincerely, Phillip G. Norton President ACKNOWLEDGED AND AGREED: CITY OF SAN BERNARDINO By Title Date EXHIBIT I Contract No. 1112 INVOICING INFORMATION FORM Please help us provide a more efficient service to you by completing the information requested below and returning this form to us along with the Contract documentation. 1. Invoicing Address: 2. Accounts Payable supervisor: Name Telephone EXHIBIT J QUESTIONNAIRE ON SELF-INSURANCE These questions are to be used as a guideline for a description of the Purchaser's self-insurance program. While a response to each question is not required, a written statement covering the areas of concern below would be appreciated. 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 limits (in dollars) of the liability the Purchaser proposes to assume for claims under 1) above? 3) Does the Purchaser maintain an umbrella insurance policy for claims in excess of Purchaser's self-insurance limits under question 2) above? If so, a) does the umbrella policy provide all-risk property damage coverage and coverage for liability for injuries, including death, to persons? b) What are the umbrella policy's limits for such property damage and liability coverage? 4) From what source does the Purchaser obtain funds to pay its self-insured liabilities? a) Does the Purchaser maintain a self-insurance fund? If so, i) Are the monies in this fund subject to annual appropriations? ii) What total amount is maintained in the fund to cover the Purchaser's self-insurance liabilities? iii) Are amounts paid from the fund subject to limitations per each claim? iv) If the Purchaser does not maintain an umbrella pOlicy, are claims limited only to amounts available in the fund, or may a claimant pursue other avenues of relief against the Purchaser? v) Who or what is the decision making authority for payment of claims submitted against the Purchaser? vi) If a claimant receives an adverse decision from the entity described in 4.a)v) above, does the claimant have recourse to the courts or to another administrative agency (i.e. who/what is the authority of last resort for paying a claim against the Purchaser's self-insurance liability? b) If the Purchaser does not maintain a self-insurance fund, from what source(s) does the Purchaser obtain funds to pay claims against its self-insured liability? i) What are the limitations and amounts payable for claims against these funding sources? ii) Who/what is the entity authorizing paYment from a claim against the Purchaser's self-insurance liability? iii) Who/What is the authority of last resort for paying a claim against the Purchaser's self-insurance liability. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 RESOLUTION NO. 88-272 RESOLUTION OF THE CITY OF SAN BERNARDINO AWARDING A CONTRACT TO HAAKER EQUIPMENT COMPANY FOR THE FURNISHING AND DELIVERY OF THE AUTOMATED REFUSE TRUCKS (3 EACH), IN ACCORDANCE WITH SPECIFICATION F-88-l5. BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. That Haaker Equipment Co. is the lowest and best bidder for the furnishing and delivering of Automated Refuse Trucks (3 each), in accordance with specification F-88-l5 for a total amount of $342,129.84 pursuant to this determination, the . Purchasing Agent is hereby authorized and directed to issue a purchase order for said Automated Refuse Trucks (3 each) to said lowest and best bidder; ~ucQ purchase order shall include (1) a term that the City shall have at least 90 days from the date of acceptance of the bid to arrange financing for the equipment; and (2) a term that the purchase order is contingent upon the City obtaining financing that is adequate in the City's sole 18 determination; such award shall only be effective upon the 19 20 21 22 23 issuance of a purchase order by the Purchasing Agent; and all other bids therefor are hereby rejected. I HEREBY CERTIFY that the foregoing'resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a regular meeting thereof, held on the 24 18th day of July , 1988, by the following vote, to 25 26 27 28 wit: 7-6-88 CRG:cm 1 Resolution 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 of ~ard (" Con tract He '':er uipment Co. AYES: Council Members Estrada, Reilly, Flores. Maudslev. Minor, Miller NAYS: None ABSENT: Council Member Pope-Ludlam ~~~ ./ City Clerk ) The foregoing resolution is hereby approved this ~otL day Julv , 1988. By: orE w , Mayor Bernardino Approved as to form and legal content: 7-6-88 CRG:cm -; j Attorney 2