HomeMy WebLinkAbout37- Finance CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: ' Barbara Pachon, Director of Finance Subject: Approval of Master Lease-Purchase Agreement
Dept: Finance ORIGINAL
Date: June 3, 1998
Synopsis of Previous Council Action:
None
Recommended Motion:
Adopt resolution
&Lag/enn_
Signature
Contact Person: _John P. Murphy, Purchasing Manager Phone: (909) 384-5086
Supporting data attached: Staff Report Ward: City Wide
FUNDING REQUIREMENTS: Amount: -0-
Source: (ACCT. No.) N/A
(Acct. Description) N/A
Finance:
Council Notes:
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Agenda Item No.., ! _
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1
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
STAFF REPORT
SUBJECT:
Approval of Lease-Purchase Master Agreement
BACKGROUND:
Banc One Leasing Corporation has requested to be given the opportunity to provide
financing for our capital purchases. The past practice has been for the Mayor and
Common Council to approve a Master Lease-Purchase Agreement first, before any
rate quotes are solicited from any financial institution. Exhibit "A" is the proposed
Master Lease-Purchase Agreement for this vendor. Once a Master Lease-Purchase
Agreement is approved, that vendor is allowed to quote on any subsequent financing
opportunities. There are ten approved Master Leases currently in effect.
FINANCIAL IMPACT:
This action does not obligate any funds. Individual leases are individually presented
to the Mayor and Common Council for approval.
RECOMMENDATION:
The Mayor and Common Council adopt the resolution approving the Master Lease-
Purchase Agreement for Banc One Leasing Corporation.
r.
COPY
• I RESOLUTION NO.
I RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO ACCEPTING LEASE PURCHASE MASTER AGREEMENT AND
3 SCHEDULE ADDENDUM FOR BANC ONE LEASING CORPORATION FOR THE
FURNISHING OF LEASE PURCHASE FINANCING.
4
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF
5
SAN BERNARDINO AS FOLLOWS:
6
7 SECTION 1. That Equipment Lease-Purchase Master Agreement and Schedule Addendum
8 with Banc One Leasing Corporation, a copy of which is attached hereto and incorporated herein
9 as Exhibit "A," is approved by the City of San Bernardino for the furnishing of Lease-Purchase
10 Financing.
11 SECTION 2. The City shall not be obligated under the Agreement and Addendum unless
12 and until actual financing is required for a specific lease purchase.
13 SECTION 3. No transactions shall be initiated under this Master Lease Agreement and
• 14 Addendum without the approval by the Mayor and Common Council as a separate schedule under
15 the Master Lease Agreement and Addendum.
16
17
18
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20 / / /
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• 27 / / /
28 / / / 437
HTC/js[BancONE.RES] 1 ���h June 25, 1998
• I RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO ACCEPTING LEASE PURCHASE MASTER AGREEMENT AND
2 SCHEDULE ADDENDUM FOR BANC ONE LEASING CORPORATION FOR THE
FURNISHING OF LEASE PURCHASE FINANCING.
3
4 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
5 Common Council of the City of San Bernardino at a meeting
6 thereof, held on the day of 1998, by the following vote, to
7 wit:
8 COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT
9 ESTRADA
10 LIEN
11 ARIAS
12 SCHNETZ
13 DEVLIN
• 14 ANDERSON
15 MILLER
16
17 CITY CLERK
18
The foregoing Resolution is hereby approved this day of
19 1998.
20
21 JUDITH VALLES, Mayor
City of San Bernardino
22
23 Approved as to form and
legal content:
24
JAMES F. PENMAN,
25 City Attorney
26 ^ n
28
HTC/jsiBanc0NE.RESI June 25, 1998
EXHIBIT "A"
• MASTER LEASE-PURCHASE AGREEMENT
Dated as of
This Master Lease-Purchase Agreement together with all addenda, riders and attachments hereto, as the same may from time
to time be amended, modified or supplemented ("Master Lease") is made and entered by and between Banc One Leasing Corporation
("Lessor')and the lessee identified below("Lessee").
LESSEE:
1. LEASE OF EQUIPMENT. Subject to the terms and conditions of this Master Lease, Lessor agrees to lease to Lessee, and Lessee
agrees to lease from Lessor, all Equipment described in each Schedule signed from time to time by Lessee and Lessor.
2. CERTAIN DEFINITIONS.All terms defined in the Lease are equally applicable to both the singular and plural form of such terms. (a)
"Schedule" means each Lease Schedule signed and delivered by Lessee and Lessor, together with all addenda, riders, attachments,
certificates and exhibits thereto, as the same may from time to time be amended, modified or supplemented. Lessee and Lessor agree
that each Schedule(except as expressly provided in said Schedule)incorporates by reference all of the terms and conditions of the Master
Lease. (b)"Lease"means each Schedule and this Master Lease as incorporated into said Schedule. (c) "Equipment"means the property
described in each Schedule, together with all attachments, additions, accessions, parts, repairs, improvements, replacements and
substitutions thereto. (d) "Lien" means any security interest, lien, mortgage, pledge, encumbrance, judgment, execution, attachment,
warrant,writ, levy, other judicial process or claim of any nature whatsoever by or of any person.
3. LEASE TERM. The term of the lease of the Equipment described in each Lease("Lease Perm")commences on the first date any of
such Equipment is accepted by Lessee pursuant to Section 5 hereof and, unless earlier terminated as expressly provided in the Lease,
continues until Lessee's payment and performance in full of all of Lessee's obligations under the Lease.
r'aTr^ T PAYMENTS.
4.1 For each Lease, Lessee agrees to pay to Lessor the rent payments in the amounts and at the times as set forth in the
ent Schedule attached to the Schedule("Rent Payments").A portion of each Rent Payment is paid as and represents the payment
of interest as set forth in the Payment Schedule. Rent Payments will be payable for the Lease Term in U.S. dollars, without notice or
demand at the office of Lessor(or such other place as Lessor may designate from time to time in writing).
4.2 If Lessor receives any payment from Lessee later than ten (10)days from the due date, Lessee shall pay Lessor on demand
as a late charge five per cent(5%)of such overdue amount, limited, however, to the maximum amount allowed by law.
4.3 EXCEPT AS SPECIFICALLY PROVIDED IN SECTION 6 HEREOF OR IN ANY WRITTEN MODIFICATION TO THE LEASE
SIGNED BY LESSOR, THE OBLIGATION TO PAY RENT PAYMENTS UNDER EACH LEASE SHALL BE ABSOLUTE AND
UNCONDITIONAL IN ALL EVENTS AND SHALL NOT BE SUBJECT TO ANY SETOFF, DEFENSE,COUNTERCLAIM,ABATEMENT OR
RECOUPMENT FOR ANY REASON WHATSOEVER.
5. DELIVERY; ACCEPTANCE; FUNDING CONDITIONS.
5.1 Lessee shall arrange for the transportation, delivery and installation of all Equipment to the location specified in the Schedule
("Location")by Equipment suppliers("Suppliers") selected by Lessee. Lessee shall pay all costs related thereto unless Lessor otherwise
agrees to pay such costs as stated in the Schedule.
5.2 Lessee shall accept Equipment as soon as it has been delivered and is operational. Lessee shall evidence its acceptance
of any Equipment by signing and delivering to Lessor the applicable Schedule. If Lessee signs and delivers a Schedule and if all Funding
Conditions have been satisfied in full, then Lessor will pay or cause to be paid the costs of such Equipment as stated in the Schedule
("Purchase Price")to the applicable Supplier.
5.3 Lessor shall have no obligation to pay any Purchase Price unless all reasonable conditions established by Lessor("Funding
Conditions") have been satisfied, including, without limitation, the following: (a) Lessee has signed and delivered the Schedule and its
Payment Schedule; (b) no Event of Default shall have occurred and be continuing; (c) no material adverse change shall have occurred
in the Internal Revenue Code of 1986, as amended, and the related regulations and rulings thereunder(collectively,the"Code"); (d) no
jilftal adverse change shall have occurred in the financial condition of Lessee or any Supplier; (e) the Equipment is reasonably
ory to Lessor and is free and dear of any Liens (except Lessors Liens); (f)all representations of Lessee in the Lease remain true,
e and complete; and (g) Lessor has received all of the following documents,which shall be reasonably satisfactory, in form and
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MLD 01 (4/26196)
EXHIBIT "A"
e,to Lessor: (1)evidence of insurance coverage required by the Lease, (2)an opinion of Lessee's counsel;(3) reasonably detailed
i for the Equipment; (4) Uniform Commercial Code (UCC)financing statements; (5) copies of resolutions by Lessee's governing
bo authorizing the Lease and incumbency certificates for the person(s)who will sign the Lease; (6) such documents and certificates
relating to the tax-exempt interest payable under the Lease (including, without limitation, IRS Form 8036G or 8038GC) as Lessor may
quest, a nd (7)such other documents and information previously identified by Lessor or othe wise reasonably requested by Lessor.
6. TERMINATION FOR GOVERNMENTAL NON-APPROPRIATIONS.
6.1 For each Lease, Lessee represents and warrants:that it has appropriated and budgeted the necessary funds to make all Rent
Payments required pursuant to such Lease for the remainder of the fiscal year in which the Lease Term commences; and that it intends
to make Rent Payments for the full Lease Term as scheduled on the applicable Payment Schedule so long as funds are appropriated in
each fiscal year by its governing body. Lessee reasonably believes that moneys in an amount sufficient to make all Rent Payments can
and will lawfully be appropriated and made available therefor.All Rent Payments shall be payable out of the general funds of Lessee or
out of other funds legally available therefor. Lessor agrees that the Leases will not be general obligations of Lessee and that the Leases
shall not constitute pledges of either the full faith and credit of Lessee or the taxing power of Lessee.
6.2 If Lessee's governing body fails to appropriate sufficient funds in any fiscal year for Rent Payments or other payments due
under a Lease and if other funds are not available for such payments,then a"Non-Appropriation Event"shall be deemed to have occurred.
If a Non-Appropriation Event occurs, then: (a) Lessee shall give Lessor immediate notice of such Non-Appropriation Event and provide
written evidence of such failure by Lessee's governing body; (b)on the Return Date, Lessee shall return to Lessor all, but not less than
all, of the Equipment covered by the affected Lease,at Lessee's sole expense,in accordance with Section 21 hereof; and (c)the affected
Lease shall terminate on the Return Date without penalty or expense to Lessee, provided, that Lessee shall pay all Rent Payments and
other amounts payable under the affected Lease for which funds shall have been appropriated or are otherwise available, provided further,
that Lessee shall pay month-to-month rent at the rate set forth in the affected Lease for each month or part thereof that Lessee fails to fails
to return the Equipment under this Section 6.2. "Return Date" means the last day of the fiscal year for which appropriations were made
for the Rent Payments due under a Lease.
6.3 If a Non-Appropriation Event occurs, then, during the twelve month period following the Return Date, Lessee agrees not to
(by purchase,lease or otherwise)replacement equipment which is functionally similar to the Equipment covered by such terminated
fe or to appropriate funds for the acquisition of such replacement equipment. Notwithstanding the foregoing of this Section 6.3,the
ons of this section 6.3 shall automatically and without further action of the parties be ineffective and be deleted: (a) from any
ated Lease if the net proceeds of the sale of the returned Equipment is sufficient to pay the Termination Value of the Equipment as
of the Return Date; or(b)from any Lease if the application of the restrictions in this section 6.3 would not be permitted by then applicable
law or would cause such Lease to be invalid or unenforceable in any material respect.
7. LIMITATION ON WARRANTIES. LESSOR MAKES NO WARRANTY OR REPRESENTATION,EXPRESS OR IMPLIED,AS TO ANY
MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, AS TO THE MERCHANTABILITY OR FITNESS FOR ANY
PARTICULAR PURPOSE OF ANY OF THE EQUIPMENT OR AS TO THE VALUE, DESIGN, CONDITION, USE, CAPACITY OR
DURABILITY OF ANY OF THE EQUIPMENT. For and during the Lease Term, Lessor hereby assigns to Lessee any manufacturer's or
Suppliers product warranties, express or implied, applicable to any Equipment and Lessor authorizes Lessee to obtain the customary
services furnished in connection with such warranties at Lessee's sole expense. Lessee agrees that (a) all Equipment will have been
purchased by Lessor in accordance with Lessee's specifications from Suppliers selected by Lessee, (b) Lessor is not a manufacturer or
dealer of any Equipment and has no liability for the delivery or installation of any Equipment,(c)Lessor assumes no obligation with respect
to any manufacturer's or Suppliers product warranties or guaranties, (d) no manufacturer or Supplier or any representative of said parties
is an agent of Lessor, and (e) any warranty, representation, guaranty or agreement made by any manufacturer or Supplier or any
representative of said parties shall not be binding upon Lessor.
8. TITLE; SECURITY INTEREST.
8.1 Upon Lessee's acceptance of any Equipment under its Lease,title to the Equipment shall vest in Lessee, subject to Lessors
security interest therein and all of Lessors other rights under such Lease including,without limitation, Sections 6,20 and 21 hereof.
8.2 As collateral security for the Secured Obligations, Lessee hereby grants to Lessor a first priority security interest in any and
all of the Equipment(now existing or hereafter acquired)and any and all proceeds thereof. Lessee agrees to execute and deliver to Lessor
all necessary documents to evidence and perfect such security interest, including, without limitation, uniform commercial code (UCC)
financing statements and any amendments thereto.
8.3 "Secured Obligations"means Lessee's obligations to pay all Rent Payments and all other amounts due and payable under
sent and future Leases and to perform and observe all covenants, agreements and conditions (direct or indirect, absolute or
ent, due or to become due, or existing or hereafter arising) of Lessee under all present and future Leases.
MLD 01 (4/26/96)
Page 2 of 12
EXHIBIT "A"
ONAL PROPERTY. All Equipment is and will remain personal property and will not be deemed to be affixed or attached to real
r any building thereon.
'0. MAINTENANCE AND OPERATION. Lessee agrees it shall, at its sole expense: (a) repair and maintain all Equipment in good
condition and working order and supply and install all replacement parts or other devices when required to so maintain the Equipment or
when required by applicable law or regulation,which parts or devices shall automatically become part of the Equipment; and (b) use and
operate all Equipment in a careful manner in the normal course of its operations and only for the purposes for which it was designed in
accordance with the manufacturer's warranty requirements, and comply with all laws and regulations relating to the Equipment. If any
Equipment is customarily covered by a maintenance agreement, Lessee will furnish Lessor with a maintenance agreement by a party
reasonably satisfactory to Lessor. No maintenance or other service for any Equipment will be provided by Lessor. Lessee will not make
any alterations, additions or improvements ("Improvements") to any Equipment without Lessor's prior written consent unless the
Improvements may be readily removed without damage to the operation,value or utility of such Equipment, but any such Improvements
not removed prior to the termination of the applicable Lease shall automatically become part of the Equipment.
11. LOCATION; INSPECTION. Equipment will not be removed from, or if Equipment is rolling stock its permanent base will not be
changed from, the Location without Lessor's prior written consent which will not be unreasonably withheld. Upon reasonable notice to
Lessee, Lessor may enter the Location or elsewhere during normal business hours to inspect the Equipment.
12. LIENS, SUBLEASES AND TAXES.
12.1 Lessee shall keep all Equipment free and clear of all Liens except those Liens created under its Lease. Lessee shall not
sublet or lend any Equipment or permit it to be used by anyone other than Lessee or Lessee's employees.
12.2 Lessee shall pay when due all Taxes which may now or hereafter be imposed upon any Equipment or its ownership,leasing,
rental, sale, purchase, possession or use, upon any Lease or upon any Rent Payments or any other payments due under any Lease. If
Lessee fails to pay such Taxes when due, Lessor shall have the right, but not the obligation,to pay such Taxes. If Lessor pays any such
Taxes,then Lessee shall, upon demand, immediately reimburse Lessor therefor. "Taxes"means present and future taxes, levies, duties,
assessments or other governmental charges that are not based on the net income of Lessor,whether they are assessed to or payable by
or Lessor, including, without limitation (a)sales, use, excise, licensing, registration, titling, gross receipts, stamp and personal
taxes, and (b) interest, penalties or fines on any of the foregoing.
13. RISK OF LOSS.
13.1 Lessee bears the entire risk of loss, theft, damage or destruction of any Equipment in whole or in part from any reason
whatsoever("Casualty Loss"). No Casualty Loss to any Equipment shall relieve Lessee from the obligation to make any Rent Payments
or to perform any other obligation under any Lease.Proceeds of any insurance recovery will be applied to Lessee's obligations under this
Section 13.
13.2 If a Casualty Loss occurs to any Equipment, Lessee shall immediately notify Lessor of the same and Lessee shall, unless
otherwise directed by Lessor, immediately repair the same.
13.3 If Lessor determines that any item of Equipment has suffered a Casualty Loss beyond repair("Lost Equipment"),then Lessee
shall either: (a)immediately replace the Lost Equipment with similar equipment in good repair, condition and working order free and clear
of any Liens (except Lessor's Liens) and deliver to Lessor a bill of sale covering the replacement equipment, in which event such
replacement equipment shall automatically be Equipment under the applicable Lease; or(b)on the next scheduled Rent Payment date,
pay Lessor(1)all amounts owed by Lessee under the applicable Lease,including the Rent Payment due on such date plus(ii) an amount
equal to the applicable Termination Value set forth in the Payment Schedule to the applicable Lease. If Lessee is making such payment
with respect to less than all of the Equipment under a Lease,then Lessor will provide Lessee with the pro rata amount of the Rent Payment
and Termination Value to be paid by Lessee with respect to the Lost Equipment.
13.4 Lessee shall bear the risk of loss for, shall pay directly,and shall defend against any and all claims, liabilities, proceedings,
actions, expenses(including reasonable attomey's fees),damages or losses arising under or related to any Equipment, including, but not
limited to, the possession, ownership, lease, use or operation thereof. These obligations of Lessee shall survive any expiration or
termination of any Lease. Lessee shall not bear the risk of loss of, nor pay for, any claims, liabilities, proceedings, actions, expenses
(including attorney's fees),damages or losses which arise directly from events occurring after any Equipment has been returned by Lessee
to Lessor in accordance with the terms of the applicable Lease or which arise directly from the gross negligence or willful misconduct of
Lessor.
�URANCE.
14.1 (a)Lessee at its sole expense shall at all times keep all Equipment insured against all risks of loss or damage from every
MLD 01 (426/96)
Page 3 of 12
EXHIBIT "A"
C alsoever for an amount not less than the Termination Value of the Equipment. Proceeds of any such insurance covering damage
any Equipment shall be payable to Lessor as loss payee. (b) Lessee at its sole expense shall at all times carry public liability and
.;roperty damage insurance in amounts reasonably satisfactory to Lessor protecting Lessee and Lessor from liabilities for injuries to persons
and damage to property of others relating in any way to any Equipment. Proceeds of any such public liability or property insurance shall
be payable first to Lessor as additional insured to the extent of its liability, and then to Lessee.
14.2 All insurers shall be reasonably satisfactory to Lessor. Lessee shall promptly deliver to Lessor satisfactory evidence of
required insurance coverage and all renewals and replacements thereof. Each insurance policy will require that the insurer give Lessor
at least 30 days prior written notice of any cancellation of such policy and will require that Lessor's interests remain insured regardless of
any act, error, misrepresentation, omission or neglect of Lessee.The insurance maintained by Lessee shall be primary without any right
of contribution from insurance which may be maintained by Lessor.
15. PURCHASE OPTION. Upon thirty(30)days prior written notice by Lessee to Lessor, and so long as there is no Event of Default then
existing, Lessee shall have the option to purchase all, but not less than all, of the Equipment covered by a Lease on any Rent Payment
due date by paying to Lessor all Rent Payments then due(including accrued interest, if any) plus the Termination Value amount set forth
on the Payment Schedule to the applicable Lease for such date. Upon satisfaction by Lessee of such purchase conditions, Lessor shall
release its Lien on such Equipment and Lessee shall retain its title to such Equipment"AS-IS, WHERE-IS", without representation or
warranty by Lessor,express or implied, except for a representation that such Equipment is free and clear of any Liens created by Lessor.
16. LESSEE'S REPRESENTATIONS AND WARRANTIES. With respect to each Lease and its Equipment, Lessee hereby represents
and warrants to Lessor that:
(a) Lessee has full power, authority and legal right to execute and deliver the Lease and to perform its obligations under the
Lease, and all such actions have been duly authorized by appropriate findings and actions of Lessee's governing body;
(b) the Lease has been duly executed and delivered by Lessee and constitutes a legal,valid and binding obligation of Lessee,
enforceable in accordance with its terms;
(c)the Lease is authorized under,and the authorization, execution and delivery of the Lease complies with,all applicable federal,
slilftd local laws and regulations(including, but not limited to, all open meeting, public bidding and property acquisition laws) and all
IFe judgments and court orders;
(d) the execution,delivery and performance by Lessee of its obligations under the Lease will not result in a breach or violation
of,nor constitute a default under, any agreement, lease or other instrument to which Lessee is a party or by which Lessee's properties may
be bound or affected;
(e) there is no pending, or to the best of Lessee's knowledge threatened, litigation of any nature which may have a material
adverse effect on Lessee's ability to perform its obligations under the Lease; and
(f) Lessee is a state,or a political subdivision thereof, as referred to in Section 103 of the Code, and Lessee's obligation under
the Lease constitutes an enforceable obligation issued on behalf of a state or a political subdivision thereof.
17. TAX COVENANTS. Lessee hereby covenants and agrees that:
(a) Lessee shall comply with all of the requirements of Section 149(a) and Section 149(e) of the Code, as the same may be
amended from time to time, and such compliance shall include, but not be limited to, keeping a complete and accurate record of any
assignments of any Lease and executing and filing Internal Revenue Form 8038G or 8038GC, as the case may be, and any other
information statements reasonably requested by Lessor;
(b) Lessee shall not do (or cause to be done) any act which will cause, or by omission of any act allow, any Lease to be an
.'arbitrage bond"within the meaning of Section 148(a)of the Code or any Lease to be a"private activity bond"within the meaning of Section
141(a) of the Code; and
(c) Lessee shall not do(or cause to be done)any act which will cause,or by omission of any act allow, the interest portion of any
Rent Payments to be or become includable in gross income for Federal income taxation purposes under the Code.
18. ASSIGNMENT.
18.1 Lessee shall not assign,transfer, pledge, hypothecate, nor grant any Lien on, nor otherwise dispose of, any Lease or any
nt or any interest in any Lease or Equipment.
18.2 Lessor may assign its rights,title and interest in and to any Lease or any Equipment, and/or may grant or assign a security
MLO 01 (4/26/96)
Page 4 of 12
EXHIBIT "A"
any Lease and its Equipment,in whole or in part,to any party at any time.Any such assignee or lienholder(an"Assignee') shall
a of the rights of Lessor under the applicable Lease. LESSEE AGREES NOT TO ASSERT AGAINST ANY ASSIGNEE ANY
.LAIMS, ABATEMENTS,SETOFFS,COUNTERCLAIMS,RECOUPMENT OR ANY OTHER SIMILAR DEFENSES WHICH LESSEE MAY
HAVE AGAINST LESSOR. Unless otherwise agreed by Lessee in writing, any such assignment transaction shall not release Lessor from
any of Lessor's obligations under the applicable Lease.An assignment or reassignment of any of Lessors right, title or interest in a Lease
or its Equipment shall be enforceable against Lessee only after Lessee receives a written notice of assignment which discloses the name
and address of each such Assignee; provided,that such notice from Lessor to Lessee of any assignment shall not be so required if Lessor
assigns a Lease to BANC ONE CORPORATION or any of its direct or indirect subsidiaries. Lessee shall keep a complete and accurate
record of all such assignments in the form necessary to comply with Section 149(a)of the Code. Lessee agrees to acknowledge in writing
any such assignments if so requested.
18.3 Each Assignee of a Lease hereby agrees that (a)the term Secured Obligations as used in Section 8.3 hereof is hereby
amended to include and apply to all obligations of Lessee under the Assigned Leases and to exclude the obligations of Lessee under any
Non-Assigned Leases; (b)said Assignee shall have no Lien on,nor any claim to,nor any interest of any kind in,any Non-Assigned Leases;
and(c)Assignee shall exercise its rights,benefits and remedies as the assignee of Lessor(including,without limitation,the remedies under
Section 20 of the Master Lease)solely with respect to the Assigned Leases."Assigned Leases"means only those Leases which have been
assigned to an Assignee pursuant to a written agreement;and"Non-Assigned Leases"means all Leases excluding the Assigned Leases.
18.4 Subject to the foregoing, each Lease inures to the benefit of and is binding upon the heirs, executors, administrators,
successors and assigns of the parties hereto.
19. EVENTS OF DEFAULT. For each Lease,"Event of Default"means the occurrence of any one or more of the following events as they
may relate to such Lease: (a) Lessee fails to make any Rent Payment (or any other payment)as it becomes due in accordance with the
terms of the Lease,and any such failure continues for ten(10) days after the due date thereof; (b) Lessee fails to perform or observe any
of its obligations under Sections 12.1, 14 or 18.1 hereof; (c)Lessee fails to perform or observe any other covenant,condition or agreement
to be performed or observed by it under the Lease and such failure is not cured within thirty(30)days after receipt of written notice thereof
by Lessor; (d) any statement, representation or warranty made by Lessee in the Lease or in any writing delivered by Lessee pursuant
thereto or in connection therewith proves at any time to have been false, misleading or erroneous in any material respect as of the time
J&ade; (e) Lessee applies for or consents to the appointment of a receiver, trustee, conservator or liquidator of Lessee or of all or
tial part of its assets,or a petition for relief is filed by Lessee under any federal or state bankruptcy, insolvency or similar law, or
in a proceeding under any federal or state bankruptcy,insolvency or similar law is filed against Lessee and is not dismissed within
Lessee shall be in default under a
sixty(60)days thereafter,or(f) ny other Lease or under any other financing agreement executed at any
time with Lessor.
20. REMEDIES. If any Event of Default occurs,then Lessor may, at its option, exercise any one or more of the following remedies:
(a) Lessor may require Lessee to pay(and Lessee agrees that it shall pay)all amounts then currently due under all Leases and
all remaining Rent Payments due under all Leases during the fiscal year in effect when the Event of Default occurs together with interest
on such amounts at the highest lawful rate from the date of Lessors demand for such payment;
(b) Lessor may require Lessee to promptly return all Equipment to Lessor in the manner set forth in Section 21 (and Lessee
agrees that it shall so return the Equipment),or Lessor may, at its option, enter upon the premises where any Equipment is located and
repossess such Equipment without demand or notice,without any court order or other process of law and without liability for any damage
occasioned by such repossession;
m Lessor may sell,lease or otherwise dispose of any Equipment, in whole or in part,in one or more public or private transactions,
and if Lessor so disposes of any Equipment, then Lessor shall retain the entire proceeds of sch disposition free of any claims of Lessee,
orovided, that the net proceeds of any such disposition shall be applied to amounts payable by Lessee under clause (a) above of this
Section only to the extent that such net proceeds exceed the applicable Termination Value set forth in the applicable
(d) Lessor may terminate, cancel or rescind any Lease as to any and all Equipment;
(e) Lessor may exercise any other right, remedy or privilege which may be available to Lessor under applicable law or, by
appropriate court action at law or in equity, Lessor may enforce any of Lessee's obligations under any Lease; and/or
(f)Lessor may require Lessee to pay(and Lessee agrees that it shall pay)all out-of-pocket costs and expenses incurred by Lessor
as a result (directly or indirectly) of the Event of Default and/or of Lessors actions under this section, including, without limitation, any
ey fees and expenses and any costs related to the repossession, safekeeping, storage, repair, reconditioning or disposition of any
ent.
We the above remedies is exclusive, but each is cumulative and in addition to any other remedy available to Lessor.Lessors exercise
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EXHIBIT "A"
o more remedies shall not preclude its exercise of any other remedy. No delay or failure on the part of Lessor to exercise any
render any Lease shall operate as a waiver thereof, nor as an acquiescence in any default, nor shall any single or partial exercise
of any remedy preclude any other exercise thereof or the exercise of any other remedy.
21. RETURN OF EQUIPMENT. If Lessor is entitled under the provisions of any Lease, including any termination thereof pursuant to
Sections 6 or 20 of this Master Lease,to obtain possession of any Equipment or if Lessee is obligated at any time to return any Equipment,
then (a)title to the Equipment shall vest in Lessor immediately upon Lessor's notice thereof to Lessee, and (b) Lessee shall, at its sole
expense and risk, immediately de-install, disassemble, pack, crate, insure and return the Equipment to Lessor (all in accordance with
applicable industry standards)at any location in the continental United States selected by Lessor. Such Equipment shall be in the same
;condition as when received by Lessee(reasonable wear, tear and depreciation resulting from normal and proper use excepted), shall be
in good operating order and maintenance as required by the applicable Lease, shall be free and clear of any Liens(except Lessor's Lien)
and shall comply with all applicable laws and regulations. Until Equipment is returned as required above,all terms of the applicable Lease
shall remain in full force and effect including,without limitation, obligations to pay Rent Payments and to insure the Equipment. Lessee
agrees to execute and deliver to Lessor all documents reasonably requested by Lessor to evidence the transfer of legal and beneficial title
to such Equipment to Lessor and to evidence the termination of Lessee's interest in such Equipment.
22. LAW GOVERNING. Each Lease shall be governed by the laws of the state of Lessee (the"State").
_3. NOTICES. All notices to be given under any Lease shall be made in writing and either personally delivered or mailed by certified mail
m the other party at its address set forth herein or at such address as the party may provide in writing from time to time. Any such notices
shall be deemed to have been received five(5) days subsequent to mailing.
24. FINANCIAL INFORMATION. Within thirty(30)days of their completion in each fiscal year of Lessee during any Lease Term, Lessee
will deliver to Lessor upon Lessor's request the publicly available annual financial information of Lessee.
25. SECTION HEADINGS. All section headings contained herein or in any Schedule are for convenience of reference only and do not
define or limit the scope of any provision of any Lease.
CUTION IN COUNTERPARTS.Each Schedule to this Master Lease may be executed in several counterparts, each of which shall
ed an original, but all of which shall be deemed one instrument. Only one counterpart of each Schedule shall be marked "Lessors
r and all other counterparts shall be deemed duplicates.An assignment of or security interest in any Schedule may be created
through transfer and possession only of the counterpart marked "Lessor's Original".
27. ENTIRE AGREEMENT;WRITTEN AMENDMENTS. Each Lease,together with the exhibits attached thereto and made a part hereof
_nd other attachments thereto, and other documents or instruments executed by Lessee and Lessor in connection therewith, constitute
ie entire agreement between the parties with respect to the lease of the Equipment covered thereby, and such Lease shall not be
modified, amended, altered, or changed except with the written consent of Lessee and Lessor.Any provision of any Lease found to be
prohibited by law shall be ineffective to the extent of such prohibition without invalidating the remainder of the Lease.
LESSEE: LESSOR:
Banc One Leasing Corporation
By� By:
Title: Title:
1111 Polaris Parkway, Suite A-3
Columbus, Ohio 43240
•
MLD 01 (4126/96)
Page 6of12
EXHIBIT "A"
LEASE SCHEDULE NO.
• Dated As Of
This Lease Schedule, together with its Payment Schedule, is attached and made a part of the Master Lease-Purchase
Agreement described below ("Master Lease") between the Lessee and Lessor named below. All terms and conditions of the
Master Lease are incorporated herein by reference..Unless otherwise defined herein, capitalized terms defined in the Master
Lease will have the same meaning when used herein.
Master Lease-Purchase Agreement dated
A. EQUIPMENT DESCRIBED:The Equipment includes all of the property described on Schedule A-1 attached hereto and
made a part hereof.
B. EQUIPMENT LOCATION:
C.ACCEPTANCE OF EQUIPMENT: AS BETWEEN LESSEE AND LESSOR, LESSEE AGREES THAT: (a) LESSEE HAS
RECEIVED AND INSPECTED ALL EQUIPMENT; (b)ALL EQUIPMENT IS IN GOOD WORKING ORDER AND COMPLIES
WITH ALL PURCHASE ORDERS, CONTRACTS AND SPECIFICATIONS; (c) LESSEE ACCEPTS ALL EQUIPMENT FOR
PURPOSES OF THE LEASE"AS-IS,WHERE-IS';AND (d) LESSEE WAIVES ANY RIGHT TO REVOKE SUCH ACCEP-
TANCE.
D. ESSENTIAL USE; CURRENT INTENT OF LESSEE: Lessee represents and agrees that the use of the Equipment is
essential to Lessee's proper, efficient and economic functioning or to the services that Lessee provides to its citizens and the
Equipment will be used by Lessee only for the purpose of performing its governmental or proprietary functions consistent with
the permissible scope of its authority. Lessee currently intends for the full Lease Term:to use the Equipment;to continue this
Lease; and to make Rental Payments if funds are appropriated in each fiscal year by its governing body.
E. RENTAL PAYMENTS; LEASE TERM:The Rental Payments to be paid by Lessee to Lessor, the commencement date
•thereof and the Lease Term of this Lease Schedule are set forth on the Payment Schedule attached to this Lease Schedule.
F. RE-AFFIRMATION OF THE MASTER LEASE: Lessee hereby re-affirms all of its representations, warranties and obligations
under the Master Lease (including, without limitation, its obligation to pay all Rental Payments, its disclaimers in Section 7
thereof and its representations in Sections 6.1 and 16 thereof).
G. BANK QUALIFIED: LESSEE CERTIFIES THAT IT HAS DESIGNATED THIS LEASE AS A QUALIFIED TAX-EXEMPT
OBLIGATION IN ACCORDANCE WITH SECTION 265(b)(3) OF THE CODE,THAT IT HAS NOT DESIGNATED MORE THAN
$10,000,000 OF ITS OBLIGATIONS AS QUALIFIED TAX-EXEMPT OBLIGATIONS IN ACCORDANCE WITH SUCH SECTION
FOR THE CURRENT CALENDAR YEAR AND THAT IT REASONABLY ANTICIPATES THAT THE TOTAL AMOUNT OF TAX-
EXEMPT OBLIGATIONS TO BE ISSUED BY LESSEE DURING THE CURRENT CALENDAR YEAR WILL NOT EXCEED
$10,000,000.
Equipment/Escrow Acceptance Date: See Final Receipt Certificate
LESSEE: LESSOR:
Banc One Leasing Corooration
Sy By:
Title:
1111 Polaris Parkway, Suite A-3
Columbus, Ohio 43240
•
Page 7 of 12
MLDS 01 (4/26/96)
EXHIBIT "A"
PAYMENT SCHEDULE
*This Payment Schedule is attached and made a part of the Lease Schedule identified below which is part of the
Master Lease-Purchase Agreement identified therein. all of which are between the Lessee and Lessor named
below.
Lease Schedule No. _ Dated
Accrual Date:
Amount Financed: $
Rent Rent Rent Interest Principal Termination
Number Date Payment Portion Portion Value
•
LESSEE: LESSOR:
Banc One 4441/n C rooration
By:
rt Title:
•
ESCPYMT(01)4/26196 Page 8 of 12
EXHIBIT "A"
SCHEDULE A-1
• Equipment Description
Lease Schedule No. dated
The Equipment described below includes all attachments, additions, accessions, parts, repairs, improvements, replacements
and substitutions thereto.
Equipment Location:
County
Equipment Description:
VIN#
•
Expected Equipment Purchase Price $
Minus Lessee Down Payment/Trade-in $
Net Amount Financed $
This Schedule A-1 is attached to the Lease Schedule or a Receipt Certificate/Payment Request relating to the Lease Schedule.
Banc One Leasing Corooration
(Lessee) (Lessor)
By:
Title, Title:
•
MLDSAI (01)4/26/96 Page 9 of 12
EXHIBIT "A"
CERTIFICATE OF INCUMBENCY
•
Lessee:
Lease Schedule No. Dated
I,the undersigned Secretary/Clerk identified below, do hereby certify that I am the duly elected or appointed and
acting Secretary/Clerk of the above Lessee(the"Lessee"), a political subdivision duly organized and existing under the laws of
the State where Lessee is located,that I have the title stated below, and that, as of the date hereof, the individuals named
below are the duly elected or appointed officers of the Lessee holding the offices set forth opposite their respective names.
[NOTE: Use same titles as Authorized Representatives stated in Resolutions.]
Name Title Signature
Name Title Signature
e Title Signature
IN WITNESS WHEREOF, I have duly executed this certificate and affixed the seal of such Lessee as of the date set
forth below.
Attest:
[SEAL)
Signature
Print S
Title:
Date:
•
Page 10 of 12
MLDCERT 01 (04/26/96)
EXHIBIT "A"
• RESOLUTION
Municipality/Lessee:
Principal Amount Expected To Be Financed: $
WHEREAS, the Municipality is a political subdivision of the State in which Municipality is located (the"State") and is duly
organized and existing pursuant to the Constitution and laws of the State.
WHEREAS, pursuant to applicable law,the governing body of the Municipality ("Governing Body") is authorized to acquire,
dispose of and encumber real and personal property, including,without limitation, rights and interest in property, leases and
easements necessary to the functions or operations of the Municipality.
WHEREAS,the Governing Body hereby finds and determines that the execution of one or more lease-purchase agreements
("Equipment Leases")in the principal amount not exceeding the amount stated above for the purpose of acquiring the property
("Equipment")to be described in the Equipment Leases is appropriate and necessary to the functions and operations of the
Municipality.
WHEREAS, Banc One Leasing Corporation ("Lessor") shall act as Lessor under said Equipment Leases.
NOW,THEREFORE, Be It Ordained by the Governing Body of the Municipality:
Section 1. Either one of the
OR (each an
"Authorized Representative") acting on behalf of the Municipality, is hereby authorized to negotiate, enter into, execute, and
eliver one or more Equipment Leases in substantially the form set forth in the document presently before the Governing Body,
ich document is available for public inspection at the office of the Municipality. Each Authorized Representative acting on
half of the Municipality is hereby authorized to negotiate, enter into, execute, and deliver such other documents relating to
the Equipment Lease as the Authorized Representative deems necessary and appropriate. All other related contracts and
agreements necessary and incidental to the Equipment Leases are hereby authorized.
Section 2. By a written instrument signed by any Authorized Representative, said Authorized Representative may designate
specifically identified officers or employees of the Municipality to execute and deliver agreements and documents relating to the
Equipment Leases on behalf of the Municipality.
Section 3. The aggregate original principal amount of the Equipment Leases shall not exceed the amount stated above and
shall bear interest as set forth in the Equipment Leases and the Equipment Leases shall contain such options to purchase by
the Municipality as set forth therein.
Section 4. The Municipality's obligations under the Equipment Leases shall be subject to annual appropriation or renewal by
the Governing Body as set forth in each Equipment Lease and the Municipality's obligations under the Equipment Leases shall
not constitute a general obligations of the Municipality or indebtedness under the Constitution or laws of the State.
Section 5. As to each Equipment Lease,the Municipality reasonably anticipates to issue not more than $10,000,000 of
tax-exempt obligations (other than"private activity bonds"which are not"qualified 501(c)(3) bonds") during the fiscal year in
which each such Equipment Lease is issued and hereby designates each Equipment Lease as a qualified tax-exempt
obligation for purposes of Section 265(b)of the Internal Revenue Code of 1986, as amended.
SAMPLE,
•
MLDRES (01)4/26/96 Page 11 of 12
EXHIBIT "A"
Section 6. This resolution shall take effect immediately upon its adoption and approval.
�DOPTED AND APPROVED on this 19_
The undersigned Secretary/Clerk of the above-named Municipality hereby certifies and attests that the undersigned has access
to the official records of the Governing Body of the Municipality, that the foregoing resolutions were duly adopted by said
Governing Body of the Municipality at a meeting of said Governing body and that such resolutions have not been amended or
altered and are in full force and effect on the date stated below.
LESSEE:
Signature of Secretary/Clerk of Municapality
[SEAL]
Print Na
Official
Date:
•
•
Page 12 of 12
MLDRES (01)4/26/96
08/19/98 FRI 18:27 FAX 814 213 7088 LEGAL ft1002
• SCHEDULEADDENDUM
Dated As Of
Lease Schedule No.
Lessee: City of San Bemadino
Reference is made to the above Lease Schedule as amended (Schedule") to the Master
Lease-Purchase Agreement identified in the Schedule as amended ('Master Lease') by and
between Banc One Leasing Corporation ('Lessor') and the above lessee ('Lessee'). As used
herein, 'Lease° shall mean the Schedule and the Master Lease, but only to the extent that the
Master Lease relates to the Schedule;and"Equipment shall mean the Equipment as described in
the Schedule.This Addendum amends and modifies the terms and conditions of the Lease and is
hereby made a part of the Lease. Unless otherwise defined herein, capitalized terms defined in the
Master Lease shall have the same meaning when used herein,
NOW,THEREFORE, as part of the valuable consideration to induce the execution of the
Lease, Lessor and Lessee hereby agree to amend the Lease as follows:
1. SELF INSURANCE. For purposes of the Lease and its Equipment. Lessee may
elect to meet the requirements of clauses (a) and (b)of Section 14.1 of the Master Lease through
self-insurance provided by a Qualified Self-Insurance Program having coverage limits no less than
those specified in clauses (a)and (b)of Section 14.1 of the Master Lease. Upon such election by
Lessee, Lessee shall give Lessor written notice of such election and shall provide Lessor with
• suitable evidence or documentation demonstrating the existence of such Qualified Self-Insurance
Program.As used herein, a'Qualified Self-Insurance Program'means a program of self-insurance
which has been established by Lessee, or by Lessee and other political subdivisions of the State,
pursuant to State law specifically authorizing the program,and which is funded in a manner similar
to commercial insurance or in a manner specified in such State law,
2. SELF-HELP REPOSSESSION. For purposes of the Lease and its Equipment,
Lessor agrees that it Lessor intends to repossess any of the Equipment pursuant to Lessor's rights
under Section 20(b)of the Master Lease,then Lessor agrees: (a)that Lessor shall not use self-help
remedies to effect such repossession;and(b)that Lessor shall give Lessee at least twenty-four(24)
hours prior written notice of Lessor's demand for possession of any such Equipment.
3. EFFECT OF ADDENDUM. Except as expressly amended by this Addendum and
other modifications signed by Lessor, the Lease remains unchanged and in full force and effect.
IN WITNESS WHEREOF,the parties hereto have executed this Addendum as of the date
first referenced above.
City of San Bemadino Banc One Leasing Corporation
(Lessee) (Lessor)
By: By:
Title: Title:
• (sanbemasch)
EXHIBIT A