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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)