HomeMy WebLinkAboutReso. 1988-084 - Approving installment payment agreement dated february 5, 1988, between the city of redding and borgwarner financial services ..v 4
RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
REDDING APPROVING INSTALLMENT PAYMENT AGREEMENT
DATED FEBRUARY 5 , 1988 , BETWEEN THE CITY OF REDDING
AND BORGWARNER FINANCIAL SERVICES FOR THE PURCHASE
OF ONE (1) 1550B JCB BACKHOE, AND AUTHORIZING THE
MAYOR TO SIGN ALL NECESSARY DOCUMENTATION.
BE IT RESOLVED by the City Council of the City of
Redding as follows:
1 . That the City Council of the City of Redding Hereby
approves Installment payment agreement dated February 5 ,
1988 , between the City of Redding and BorgWarner Financial
Services for the purchase of One (1) 1550B JCB Backhoe, a
true copy of which is attached hereto and incorporated
herein; and
2) That the Mayor of the City of Redding is hereby
authorized and directed to sign all necessary documents on
behalf of the City of Redding in connection therewith, and
the City Clerk is hereby authorized and directed to attest
the signature of the Mayor and to impress the official seal
of the City of Redding on the aforesaid documents, when
appropriate.
I HEREBY CERTIFY that the foregoing Resolution was
introduced and read at a regular meeting of the City Council
of the City of Redding on the 1st day of March
°Q
1
4
1988 , and was duly adopted at said meeting by the following
vote:
AYES: COUNCIL MEMBERS: Carter , Fultkn , Gard , Johannessen , & Dahl
NOES: COUNCIL MEMBERS: None
ABSENT: COUNCIL MEMBERS: None
ABSTAIN: COUNCIL MEMBERS: None
011, Oilitc„
M DAHL, Mayor
City of Redding
ir
ATTEST:
ETHEL A. NICHOLS, City Clerk
F• ' `eePROVED:.dif
RA NALL A. HAYS,, it Attorney
•
-2-
•
„ BORG-WARNER Borg-Warner Acceptance Corporation MASTER
1933 M. Meacham Rad •
Schaumburg. Illinois Suite
l in�ois 60173 LEASE
LESSEE: AGREEMENT
Name City of Ridding_
Address 760 Parkvlesw Avenue
Cit 9
y RPddi n State California lip 96001
• Contact Linda Dowing Phone 916-225-4078 Date February 5, 1988
TERMS AND COiDITIONS
Lessee agrees and acknowledges that this Master Lease Purchase Agreement (*Agreement”) is being executed in
conjunction with one or more written schedules ("Supplementary Schedules") which by specific reference to this
Agreement and upon execution by Lessee and Lessor became subject to all the terms and conditions contained herein.
The property which is the subject of this Agreement is described on the Supplementary Schedules. The terms and
conditions contained herein shall apply to each Supplementary Schedule properly executed and made subject to such
terms and conditions as if a separate Agreement were executed for each Supplementary Schedule. The invalidation,
fulfilment, waiver, termination or other disposition of any rights or obligations of either the lessee or Lessor or
both of them arising from the execution of this Agreement in conjunction with any one Supplementary Schedule shall
not affect the status of the rights or obligations of either or both of those parties arising fram the execution of
this Agreement in conjunction with any other Supplementary Schedule except in the event of default by Lessee as
provided in section 10 herein. Lessee has selected the Property described on The Supplementary Schedules, to lease
for its governmental purposes. Borg-Warner Acceptance Corporation has agreed to purchase the Property and transfer
it to Lessee pursuant to the terms of this agreement. For purposes of this financing arangement Borg-Warner
Acceptance Corporation is referred to as the "Lessor'. The parties agree as follows:
1. Lease Term. The lease term commences from the date the Property is accepted by Lessee as set forth in
any Supplementary Schedules executed in conjunction herewith, to the end of the Lessee's current fiscal year.
• Unless Lessee notifies Lessor in writing at the above address at least 30 days prior to the end of any term this
Agreement will automatically be renewed for the next renewal teem until all renewal terms provided for in any
Supplementary Schedules executed in conjunction herewith, have been completed.
2. Rent. (a) Lessee agrees to
.pay pay rent for the initial term and any renewal terms in the amounts stated in
any Supplementary Schedules executed in conjunction herewith. The rental amounts include interest on the cost of
the Property. All rentals shall be paid to Lessor at the above address or to such other place as Lessor may by
written notice designate to lessee. Lessee's obligation to pay rent shall not be abated, reduced or subject to
offset or diminished as a result of any event, including without limitation damage, destruction, defect,
malfunction, loss of use or obsolescence of the Property, or any other event, except such as is specifically
provided for in Section 5 of this Agreement.
(b) The parties understand that as long as Lessee has sufficient appropriated funds to make the
payments provided for hereunder, it will keep this Agreement in effect and make all pants
ired
it will exercise its option to purchase the Property. If Lessee, after exhausting all availabblerureviewsrandder or
. appeals, fails to appropriate funds so that this Agreement is not renewed for an available renewal term, the Lessee
shall not, until the date on which the last renewal term would have ended, expend any funds for the purchase or
lease of property similar to the Property subject to this Agreement.
3. Liens; Taxes. Lessee shall keep the Property free and clear of all levies, liens and security interests,
and shall give Lessor immediate notice of any attachment or other judicial process affecting any item of Property.
Lessee shall pay all charges and local, state and Federal taxes (and reimburse Lessor for anysuch
Lessor) which may now or hereafter be imposed upon the ownership, leasing, payments made by
of the Property (and lessee shall file all tax returns in connection therewith),rental,xcluding purchase,
allstaxes oonuor
measured by Lessor's net income.
4. Use. The Lessee agrees that the Property will be used solely by the Lessee for its governmental purposes
and will at all tines remain in the possession of the Lessee. Lessee shall obtain, provide and maintain all permits
and licenses necessary for the installation, operation and use of the Property. At its own cost and expense, Lessee
shall service, repair and maintain the Property in as good condition as when delivered to Lessee, ordinary wear and
tear excepted.
,� 5. Risk of Loss and Damage. Lessee :hail bear the entire risk of loss, theft damage or destruction of the
Property from any cause whatsoever. In the event that any item of the Property is lost , stolen or destroyed beyond
repair, Lessee shall pay to Lessor the greater of (a) the value of such Property immediately prior to the loss,
theft or destruction, as determined in a manner satisfactory to the Lessor, or (b) the then current option purchase
price.
6. Indemnification. Lessee hereby assumes liabilityfor and agrees to indemnify, protect, save and keep
harmless Lessor from and against any and all liability, oligations, losses, damages, penalties, claims, actions,
costs and expenses (including attorney's fees) of whatsoever kind and nature imposed on, incurred by or asserted
against Lessor which in any way relate to or arise out of ownership, delivery, lease, possession, use, operation,
condition, sale or other disposition of the Property.
7. Insurance. Lessee agrees to keep the Property insured. at its expense, against all risks of loss or
damage. Such insurance must be in an amc'unt at least equal to the aggregate remaining rental payments outstanding,
and must show Lessor as named insured. Lessee agrees to maintain public liability and bodily injury-property
insurance in an amount satisfactory to Lessor. Lessee shall be liable for any loss not covered by insurance.
B. Representations end Warranties. (a) LESSEE ACKNOWLEDGES THAT LESSOR IS NOT THE MANUFACTURER OR THE
• DISTRIBUTOR OF THE PROPERTY. LESSEE AGREES THAT LESSOR HAS MADE AND MAKES NO REPRESENTATIONS OR WARRANTIES OF
WHATSOEVER NATURE DIRECTLY OR INDIRECTLY, EXPRESS OR IMPLIED AS TO THE SUITABILITY DURABILITY FITNESS FOR U •
SE,
MERCHANTABILITY CONDITION OR QUALITY OF THE PROPERTY AND OF ANY UNIT THEREOF. LESSEE SPECIFICALLY WAIVES ALL '
RIGHTS TO MAKE CLAIM AGAINST LESSOR AND ANY ASSIGNEES OF LESSOR FOR BREACH OF ANY WARRANTY OF ANY KIND WHATSOEVER,
AND WITH RESPECT TO LESSOR OR LESSOR'S ASSIGNEE LESSEE LEASES PROPERTY "AS IS". LESSOR AND LESSOR'S ASSIGNEE SHALL
NOT BE LIABLE TO LESSEE FOR ANY LOSS, DAMAGE, OR EXPENSE OF ANY KIND OR NATURE CAUSED DIRECTLY OR INDIRECTLY BY ANY
PROPERTY LEASED HEREUNDER, OR BY THE USE OR MAINTENANCE THEREOF OR BY THE REPAIRS SERVICE OR ADJUSTMENT THERETO
OR ANY DELAY OR FAILURE TO PROVIDE ANY THEREOF OR BY ANY INTERRUPTION OF SERVICE OR LOSS OF USE THEREOF OR FOR ANY
LOSS OF BUSINESS OR DAMAGE WHATSOEVER AND HOWSOEVER CAUSED. WITHOUT IN ANY WAY IMPLYING THAT ANY SUCH WARRANTY
EXISTS AND WITHOUT MAKING ANY REPRESENTATION AS TO THE EXTENT OF ANY SUCH WARRANTY, LESSOR AGREES, TO THE EXTENT OF
ITS LEGAL POWER TO MAKI SUCH ASSIGNMENT AND WITHOUT INCREASING ITS LIABILITY HEREUNDER TO ASSIGN TO LESSEE UPON
LESSEE'S REQUEST THEREFOR ANY WARRANTY Of A MANUFACTURER OR SELLER RELATING TO THE PROPERTY THAT MAY HAVE BEEN GIVEN
TO LESSOR.
(b) Lessee represents and warrants that it has power to enter into this Agreement, that all
required procedures for execution of this Agreement, includingc bidding pp
with, and that all rentals will be paid out of funds which arlegallytavailable forfsuchl rpoe, have been complied
purpose.
,i
Property at the end of the initial term or any renewal term for a purchase price equal to the app cable Concluding
Payment provided for in any Supplementary Schedules executed in conjunction herewith. The purchase option is
exercisable by written notice to t r not less than 30 days prior to the !liof the then current term. Payment of
• • the C:rncluding Payment and anyoth ums due to the Lessor pursuant to thi reement shall take place within 10
days of the end of the currenterm at the offices of Lessor. Upon such payment, Lessor will deliver to Lessee a
bill of sale transferring the Property on an as-is-Mere-is basis to Lessee free from any lien or encumbrance
created by or arising through Lessor, but without other warranties, and will deliver all warranties and guarantees
of the dealers and manufacturers of the Property that the Lessor has in its possession.
10. Default. In the event Lessee fails to pay rent or any other amount herein provided when due and
payable, or in the event the Lessee fails to perform promptlyanyof the other obligations or convenants hereunder
or if Lessee breaches the representations or warranties set orth herein, or any proceedings shall be commenced or
petition for reorganization by or against the Lessee for relief which seeks, or may result in, any modification of
the obligations of the Lessee hereunder, under anybankruptcy or insolvency or reorganization law or laws, then in
any such event Lessor maypursue one or more of tfollowing remedies (which shall be cumulative and exercisable
concurrently or separately) as Lessor in its sole discretion may elect:
(a) Terminate this Agreement and repossess the Property leased hereunder in which event the rent
for the remainder of the term or any other charge provided for herein which is upaid shall become immediately due
and payable.
(b) Repossess and lease the Property or any portion thereof for such term and to such other persons
as Lessor may elect, and apply the proceeds of any such leasing, after deducting the costs and expense of
repossessing, repairing, storing and leasing, in payment of the rent and the other obligations of Lessee hereunder.
(c) Repossess and sell the Property or any portion thereof at public or private sale without demand
or notice of intention to sell and apply the proceeds of any such sale, after deducting the costs and expenses of
repossessing, repairing, storing and selling the Property (including reasonable attorney's fees), in payment of the
rent and other obligations of Lessee hereunder. Lessor may purchase the Property at such sale.
(d) Proceed by appropriate court action to enforce performance by the Lessee of the applicable
covenants of this Agreement or to recover damages for the breach thereof, including attorneys fees.
(e) Any remedy available at law or in equity.
With respect to all such remedies, lessee hereby expressly waives any damages occassioned by the repossession, and
if any Property has been lost, stolen, destroyed or damaged beyond repair, lessee shall pay to Lessor an amount
equal to the then current option purchase price for such Property.
11 . Termination. Upon the early termination of this Agreement due to nonappropriation of funds or any other
reason, Lessee at its cost and expense shall immediately return the Property to Lessor in good repair and working
order, only ordinary.wear and tear excepted, by delivering said Property, properly packed and adequately insured at
no less than its maximm insurable value, to the address specified by Lessor.
•
12. Assignment and sublease. (a) Lessee shall not assign this Agreement or any interest therein nor sublet
the Property or any part thereof without the prior written consent of Lessor. No assignment or sublease shall
relieve the Lessee of any of its obligations, liabilities or duties hereunder, which shall remain those of a
principal and not a guarantor.
(b) Lessor may assign this Agreement and assignee may assign the same. All rights of Lessor
hereunder may be assigned without notice to or consent of the Lessee. If Lessor assigns this Agreement or the
rentals due or to become due hereunder, or any other interest herein, whether as security for any of its
indebtedness or otherwise, no breach or default by Lessor hereunder or pursuant to any other agreement between
lessor or lessee, should there be one, shall excuse performance by Lessee of any provision hereof. Lessee further
acknowledges and agrees that the rights of any such assignee in and to the sums payable by the lessee under any
provisions of this Agreement shall not be subject to any abatement whatsoever and shall not be subject to any
defense, set-off, counterclaim or recoupment whatsoever by reason of any damage to or loss or destruction of the
Property, or any part thereof, or by reason of any other indebtedness or liability, howsoever and whensoever
arising, of the Lessee or Lessor.
13. Personal Property. The Property is and shall at all times be and remain personal property and not be
deemed a fixture even if it becomes attached to real property. The Lessor shall not be liable for any damage caused
to any real property or building by the removal of the Property therefrom.
14. Title. Title to the Property shall be conditionally in the Lessee, subject to a security interest and a
reversionary interest hereby granted to the lessor. Lessor represents and warrants that it has not created any lien
or encumbrance on the Property except the lien for payment of the amount due under this Agreement. Title shall
immediately vest in Lessor if Lessee shall default or terminate hereunder.
15. Late Charges. If Lessee fails to pay any rental or other amount due hereunder within 10 days after the
due date thereof, Lessee shall pay to Lessor interest on such delinquent payment from the due date until paid at the
lessor of a rate of l81 per annum or the maximum rate allowed by law.
16. Miscellaneous. This Agreement, Addendum I, if any, and The Supplements Schedules executed in
conjunction herewith constitute the entire Agreement between the parties and thisAgreement shall not be modified,
amended, altered or changed except by a written document signed byboth parties. isAgreement shall be governed
by and construed in accordance with the laws of the State of Illinois. Ay provisions of this Agreement fund to be
prohibited by law shall be ineffective to the extent of such prohibition without invalidating the remainder of this
Agreement. Subject to the provisions of paragraph 12, this agreement shall be binding upon and inure to the benefit
of the parties and their respective successors and assigns. The parties agree to execute such additional documents
as may be appropriate to carry out the intent and provisions of this agreement, and to execute such financing
statements as may be necessary to perfect lessor's security interest in the Property. This lease shall become
binding only upon acceptance by the Lessor and its corporate office in Schaumburg, llinois.
(Imprint Seal Here) City of Redding
ATTEST OR WITNESS:
(Name of Lessee)
By:
(Signature) (title) (Signature) (FitTe)
Accepted:
Borg-Warner Acceptance Corporation
By:
(signature) (Title)
• • • Borg-Warner Acceptance Corpor on
1933 North Meacham Road
Suite 400
Schaumburg, Illinois 60173
Page 1 of 2
Supplementary Schedule No. 001
And Acceptance Notice
LESSEE: SUPPLIER OF EQUIPMENT:
Name: City of Redding Name Georges Equipment
Address 760 Parkview Avenue Address 2431 Radio Lane
City Redding State CA Zip 96001 City Redding State CA Zip 96001
Contact Linda DowingPhone 916-225-4078
Contact RPr (' rte Phone 916-243-41 12
QUANTITY ITEM MODEL NO.
SIAL NO.
1 JCB Backhoe 1550B
Location of Property
The Lease Term for this Supplementary Schedule commences on the date the equipment is
accepted by the Lessee. (Lease Commencement Date).
AMOUNT OF ADVANCE FIRST PAYMENT NOTE: Advance payments are due
PAYMENT(S) : LAST PAYMENT(S) upon the Supplementary Schedule
Commencement Date
Payments will be as set forth in the Schedule of Payments on the following pages.
Property Cost $
Payment Amount $ 5,861 .33
Number of Payments
First Payment is due
Subsequent Payments due
Notice of Acceptance
LESSOR HEREBY LEASES TO LESSEE AND LESSEE HEREBY
ELEASES
UFFSRUOMM�TLESSOR THE PROPERTY DESCRIBED
ABOANDVE ON CONDIT THE
TERMS
THAT LEASEAND TIONS SET FORTH PURCHASE DATED Feb AND , 1'00 TO AND SUBJECTSTO ALL TERMS
BBTWEEH LESSOR AND LESSEE.
LESSEE HEREBY ACKNOWLEDGES RECEIPT IN GOOD CONDITION OF ALL THE PROPERTY DESCRIBED HEREIN AND
HEREBY TAKES POSSESSION OF AND ACCEPTS THE PROPERTY AS OF (DATE) • NOTE:
MUST BE COMPLETED BY LESSEE • AND HERBY CERTIFIES THAT THE LESSOR HAS FULLY AND
SATISFACTORILY PERFORMED ALL COVENANTS AND CONDITIONS TO BE PERFORMED BY IT UNDER THE LEASE
PURCHASE AGREEMENT.
LESSEE ACKNOWLEDGES AND AGREES (I) THAT THE PROPERTY IS OF SIZE, DESIGN, CAPACITY AND
MANUFACTURE SELECTED BY THE LESSEE, (II) THAT LESSEE IS SATISFIED THAT THE SAME IS SUITABLE
FOR ITS PURPOSES, (III) THAT LESSOR IS NOT A MANUFACTURER THEREOF NOR A DEALER IN PROPERTY OF
SUCH KIND, AND (IV) THAT LESSOR HAS NOT MADE ANY REPRESENTATION OR WARRANTY OR COVENANT WITH
RESPECT TO THE MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, CONDITION, QUALITY,
DURABILITY OR SUITABILITY OF THE PROPERTY IN ANY RESPECT OR IN CONNECTION WITH OR FOR THE
PURPOSES AND USES OF LESSEE, OR ANY OTHER REPRESENTATION OR WARRANTY OR COVENANT OF ANY KIND
OR CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT THERETO.
ATTEST OR WITNESS:
City of Redding
Z3ignature) (Title) (Name of Lessee)
(Signature-) (Title)
(Date)
BORG-WARNER ACCEPTANCE CORPORATION
(Lessor)
(Signature) (Title)