HomeMy WebLinkAboutC-2783 - Lease for Marine Safety Telecommunicationso e
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CITY OF NEWPORT BEACH
OFFICE OF THE CITY CLERK
P.O. BOX 1768, NEWPORT BEACH, CA 92658 -8915
(334) 6443005
TO: FINANCE DIRECTOR
FROM: CITY CLERK
DATE: March 14, 1990
SUBJECT: Contract No. C -2783
Description of Contract Lease Agreement for Marine Safetx
Telecommunications
Effective date of Contract November 28, 1989
Authorized by Minute Action, approved on November 27, 1989
Contract with Citicorp North America
Address
Amount of Contract (See Agreement)
"We26t' 6e, 4e
Wanda E. Raggio
City Clerk
WER:pm
Attachment
3300 Newport Boulevard, Newport Beach
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CITICORPONORTH AMERICA
STATE AND MUNICIPAL
LEASE/PURCHASE AGREEMENT
This State nd Municipal Lease /Purchase Agreement (the "Lease ") is made and entered into on this, the OZEA ay of
198 � b and between itic rp North America Inc. , with offices at 601 Midland Avenue, Rye, New York 10580,
(he in called�1he "Lessor' j, and � 9 UJ:, � M� with its principal address at
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(herein called the "Lessee "), wherein it is agreed as follows:
1. LEASE OF EQUIPMENT. Lessee hereby requests Lessorto acquire the equipment described in ExhibitA attached hereto and made a part
hereof. Subject to the terms and conditions hereof, Lessor agrees to lease to Lessee and Lessee agrees to lease from Lessor the equipment
described in Exhibit A, with all replacement parts, repairs, additions and accessories incorporated therein or affixed thereto (herein collectively
called the "Equipment ").
2. DELIVERY AND ACCEPTANCE At the request of Lessee, Lessor agrees to orderthe Equipment from the supplier of such Equipment, but
shall not be liable for specific performance of this Lease or for damages if for any reason the supplier delays or fails to fill the order. Lessee shall
cause the Equipment to be delivered at the location specified in Exhibit A (the "Equipment Location "). Lessee shall pay all transportation and
other costs, if any, incurred in connection with the delivery and installation of the Equipment Any delay in such delivery shall not affect the'
validity of this Lease. Lessee shall accept the Equipment as soon as it has been delivered and is operational, or as soon as any manufacturer
or vendor preacceptance test period has expired. Lessee shall have no more than thirty (30) days from the date of delivery of the Equipment to
accept such Equipment In the event the Equipment is not accepted by Lessee within thirty (30) days from the date of its delivery, Lessor, at
Lessor's sole option, shall have the right to terminate this Lease. Lessee shall evidence its acceptance of the Equipment by executing and
delivering to Lessor a delivery and acceptance certificate in the form of Exhibit 8 attached hereto and made a part hereof (the "Acceptance
Certificate "). Lessee hereby authorizes the Lessor to add to this Lease and to any other description of the Equipment the serial number of each
item of Equipment when available.
3. TERM. This Lease shall become effective upon the execution hereof by Lessee and Lessor. The initial term of this Lease shall commence
on the date Lessee executes the Acceptance Certificate (the "Start Date ") through the end of Lessee's fiscal year containing the Start Date
and, unless eariierterminated as expressly provided for in this lease, shall be automatically renewed on ayear-to -year basis for the number of
annual fiscal periods necessary to comprise the lease term as set forth in Exhibit C attached hereto and made a part hereof (the "Lease
Term").
4. RENT. Lessee agrees to pay to Lessoror any Assignee (as defined in Section 22 below) the rental payments forthe Equipmentas set forth in
Exhibit C (the "Rental Payments "). A portion of each Rental Payment is paid as and represents the payment of interest as setforth in Exhibit C.
The Rental Payments shall be payable, without notice or demand, at the office of Lessor (or such other place as Lessor or any Assignee may
designate in writing, from time to time) and shall commence on the Start Date or as otherwise set forth in Exhibit C, and the remaining Rental
Payments shall be payable on the same day of each consecutive month orquarter or semiannual or annual period thereafter (as designated in
Exhibit C) for the duration of the Lease Term. Any notice, invoicing, purchase orders, quotations or other forms or procedures required by
Lessee as a condition precedent to payment shall be fully explained and provided to Lessor or any Assignee sufficiently in advance of the
payment due date for the completion thereof by Lessoror any Assignee priorto such payment date. To the extent permitted by applicable law,
whenever any portion of a Rental Payment is received by Lessor or its Assignee more than ten (10) days from the due date, Lessee shall payto
Lessor or its Assignee, on demand, the greater of twenty-five dollars ($25.00) or ten per cent (10 %) of such overdue amount EXCEPT AS
SPECIFICALLY PROVIDED IN SECTION 6 HEREOF, THE RENTAL PAYMENTS SHALL BE ABSOLUTE AND UNCONDITIONAL IN ALL
EVENTS AND WILL NOT BE SUBJECT TO ANY SETOFF, DEFENSE, COUNTERCLAIM, ABATEMENT OR RECOUPMENT FOR ANY
REASON WHATSOEVER.
5. AUTHORITY AND AUTHORIZATION. Lessee represents, warrants and covenants that (a) it shall do or cause to be done all things
necessary to preserve and keep in full force and effect (i) its existence, and (ii) the Lease; (b) it has complied with all bidding and budgeting
requirements where necessary and by due notification has presented this Lease for approval and adoption as a valid obligation on its part and
that all requirements have been met and procedures have been followed to ensure the enforceability of the Lease; (c) it has sufficient
appropriations or other funds available to pay all amounts due hereunder for the current fiscal period; (d) no event has occurred and no
condition exists which, upon the execution of this Lease or with notice or the passage of time or both, would constitute a default under any debt,
revenue or purchase obligation which it has issued or to which it is a party (the "Obligation ") nor has it been in default under any Obligation at
any time during the past five (5) years; and (e) no lease, rental agreement or contract for purchase, to which Lessee has been a party, at any
time during the past five (5) years, has been terminated by Lessee as a result of insufficient funds being appropriated in any fiscal period.
6. LESSEE CERTIFICATION. Lessee warrants and covenants that (i) it is a state, or a political subdivision thereof, within the meaning of
Section 103 of the Internal Revenue Code of 1986, as amended (the "Code "), and the related regulations and rulings thereunder, (ii) Lessee's
obligation underthis Lease constitutes an enforceable obligation issued by oron behalf of a state, or political subdivision thereof, such thatany
interest income derived under this Lease and due Lessoror its Assignee, including, but not limited to, those amounts designated as interest in
Exhibit C, shall not be includable in the gross income of Lessor, its Assignee or any participants with such for the purposes of federal income
taxation; (iii) this Lease represents a valid deferred payment obligation of Lessee for the amount herein set forth; (iv) Lessee has the legal
capacity to enter into this Lease and is not in contravention of any state, county, district, city or town statute, rule, regulation or other
governmental provision; (v) during the Lease Term, the Equipment shall not be used in a trade or business of any other person or entity; and (vi)
Lessee shall complete and file on a timely basis, Internal Revenue Service form 80388 or 8038gc, as appropriate, in the manner set forth in
Section 149(e) of the Code.
7. APPROPRIATIONS AND ESSENTIAL USE. Lessee reasonably believes that sufficient funds can be obtained to make all Rental Payments
.during the Lease Term. Lessee hereby covenants that it shall do all things lawfully within its power to obtain funds from which the Rental Payments
may be made, including making provisions for such payments, to the extent necessary, in each budget submitted for the purpose of obtaining
funding, using its bona fide best efforts to have such portion of the budget approved and exhausting all available administrative reviews and appeals
in the event such portion of the budget is not approved. It is Lessee's intent to make the Rental Payments for the full Lease Term if funds are legally
available therefor and in that regard Lessee represents that: (a) the use of the Equipment is essential to its proper, efficient and economic functioning
or to the services that it provides to its citizens: (b) Lessee has an immediate need for and expects to make immediate use of substantially all the
Equipment, which need is not temporary or expected to diminish in the foreseeable future; and (c) the Equipment shall be used by the lessee only for
the purpose of performing one or more of its governmental or proprietary functions consistent with the permissible scope of its authority.
8. NONAPPROPRIATION OF FUNDS. In the event no funds or insufficient funds are appropriated and budgeted for the acquisition, retention or
operation of the Equipment and funds are otherwise unavailable, by any means whatsoever, in any fiscal period in which the Rental Payments for the
Equipment are due under this Lease, then Lessee shall, not less than sixty (60) days prior to the end of such applicable fiscal period, in writing, notify
Lessor and any Assignee of such occurrence. This Lease shall thereafter terminate and be rendered null and void on the last day of the fiscal period
for which appropriations were made without penalty, liability or expense to the Lessee of any kind, except as to (i) the portions of the Rental Payments
herein agreed upon for which funds shall have been appropriated and budgeted or are otherwise available and (ii) Lessee's other obligations and
liabilities under this Lease relating to, accruing or arising prior to such termination. In the event of such termination, Lessee agrees to peaceably
surrender possession of the Equipment to Lessor or its Assignee on the date of such termination, packed for shipment in accordance with
manufacturer's spec'rfications and eligible for manufacturer's maintenance, and freight prepaid and insured to any location in the continental United
States designated by Lessor, all at Lessee's expense. Lessor or its Assignee may exercise all available legal and equitable rights and remedies in
retaking possession of the Equipment
Notwithstanding the foregoing, Lessee agrees (a) that if this Lease is terminated in accordance with the preceding paragraph, Lessee shall not
purchase, lease or rent equipment which performs the same functions as, or functions taking the place of, those performed by the Equipment,and
shall not permit such functions to be performed by its own employees or by any agency or entity affiliated with or hired by Lessee for the balance of the
fiscal period in which such termination occurs or the next succeeding fiscal period thereafter, and (b) that it shall not during the Lease Term, give
priority in the application of funds to any other functionally similar equipment
9. LIMITATION ON WARRANTIES. LESSEE HAS SELECTED BOTH THE EQUIPMENT AND THE VENDOR(S) FROM WHOM LESSOR IS TO
PURCHASE THE EQUIPMENT IN RELIANCE HEREON. LESSEE ACKNOWLEDGES AND AGREES THAT THE EQUIPMENT IS OF A SIZE,
DESIGN AND CAPACITY SELECTED BY LESSEE, THAT LESSOR IS NOT A MANUFACTURER, VENDOR OR DISTRIBUTOR OF SUCH
EQUIPMENT, AND THAT L!FCCOR HAS NOT MADE, AND DOES NOT HEREBY MAKE, ANY REPRESENTATION, WARRANTY OR COVENANT,
EXPRESS OR IMPLIED, WITH RESPECT T171 THE MERCHANTABILITY, CONDITION, QUALITY, DURABILITY, DESIGN, OPERATION, FITNESS
FOR USE, OR SUITABILITY OF THE EQUIPMENT IN ANY RESPECT WHATSOEVER OR IN CONNECTION WITH OR FOR THE PURPOSES ANQ
USES OF LESSEE, OR ANY OTHER REPRESENTATION, WARRANTY OR COVENANT OF ANY KIND OR CHARACTER, EXPRESS OR
IMPLIED, WITH RESPECT THERETO AND LESSOR SHALL NOT BE OBLIGATED OR LIABLE FOR ACTUAL, INCIDENTAL, CONSEQUENTIAL
OR OTHER DAMAGES OF OR TO LESSEE OR ANY OTHER PERSON OR ENTITY ARISING OUT OF OR IN CONNECTION WITH THE
EQUIPMENT, INCLUDING BUT NOT LIMITED TO THE USE, PERFORMANCE OR MAINTENANCE OF THE EQUIPMENT.
Lessor hereby assigns to Lessee during the Lease Term, to the extent permitted by law, all manufacturers warranties, if any, that If may have,
express or implied, with respect to the Equipment, and lessor authorizes Lessee to obtain the customary services furnished in connection with such
warranties at Lessee's expense. Lessor authorizes Lessee, to the extent permitted by law, to enforce in its own name any warranty, representation or
other claim enforceable against the manufacturer. Lessor assumes no responsibility for shipment, delivery, installation or maintenance, and all
claims of Lessee with respect thereto, whether for delay, damage or otherwise, shall be made against the manufacturer. Lessor, at its option, may
provide in its purchase order that the manufacturer agrees that any of such claims may be made by Lessee directly against the manufacturer. The
obligation of Lessee to pay the Rental Payments as defined in Section 4 shall not be abated, impaired or reduced by reason of any claims of Lessee
with respect to the Equipment, including but not limited to its condition, quality, workmanship, delivery, shipment, installation, defects or otherwise.
10. TITLE; SECURITY AGREEMENT. Title to the Equipment is deemed to be in Lessee so long as no Event of Default pursuant to Section 19 below
has occurred and /orthis Lease has not been terminated pursuant to the provisions of Section 8 above. Upon the earlier of (i) termination of this Lease
in accordance with Section 8 above or (ii) the occurrence of an Event of Default by Lessee pursuant to Section 19 below, twe shall revest
immediately in and shall revert to Lessor free of any right, title or interest of Lessee unless Lessor elects otherwise. In order to secure all of its
obligations hereunder, Lessee hereby (a) grants to Lessor a first and prior security interest in any and all rights, title and interest of Lessee in the
Lease, the Equipment and in all additions, attachments, accessions, accessories, replacements, improvements and substitutions thereto, now or
hereafter acquired, together with all rents, issues, income, profits and proceeds thereof, including insurance proceeds; (b) agrees thatthis Lease may
be filed as a financing statement evidencing such security interest; and (c) agrees to execute and deliver all financing statements, certificates of title
and other instruments necessary or appropriate to evidence and perfect such security interest. Lessee further agrees that the Uniform Commercial
Code shall apply as between the parties hereto and assignees of Lessor.
11.PERSONAL PROPERTY. The Equipment is and shall remain, personal property and shall not be deemed to be affixed or attached to real
property or any building thereon. If requested by Lessor, Lessee shall, at its expense, furnish to Lessor a landlord or mortgagee waiver with respect to
the Equipment
12. USE; REPAIRS. Lessee shall use the Equipment in a careful manner for the use contemplated by the manufacturer of the Equipment and shall
comply with all laws, ordinances, insurance policies and regulations relating to, and shall pay all costs, claims, damages, fees and charges arising
out of, its possession, use or maintenance. Lessee, at its sole cost and expense, shall maintain the Equipment according to the manufacturer's
recommended guidelines or the equivalent and meet any and alf recertification requirements and shall furnish proof of such maintenance, if
requested by Lessor and shall furnish all needed servicing and parts, which parts shall become part of the Equipment If the Equipment is such as is
customarily covered by a maintenance agreement, Lessee shall furnish Lessor with a maintenance agreement with a party satisfactory to Lessor.
13. ALTERATIONS. Lessee shall not make any alterations, additions or improvements to the Equipment without Lessor's priorwritten consent, and
any permitted alteration or attachment which cannot be readily removed without damaging the Equipment's originally intended function or value
shall become part of the Equipment.
14. LOCATION; INSPECTION. The Equipment shall not be removed from, or if the Equipment consists of rolling stock, its permanent base shall not
be changed from the Equipment Location without Lessor's prior written consent, which consent shall not be unreasonably withheld. Lessor shall be
entitled to enter upon the Equipment Location or elsewhere during reasonable business hours to inspect the Equipment or observe its use and
operation.
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15. LIENS AND TAXES. Lessee shall keep the Equipment free and clear of all levies, liens and encumbrances except those created under this
Lease. Lessee shall pay, when due, all charges and taxes (federal, state and local) which may now or hereafter be imposed upon the ownership,
leasing, rental, sale, purchase, possession or use of the Equipment, excluding however. all taxes on or measured by Lessor's income. It Lessee fails
to pay said charges and taxes when due, Lessor shall have the right, but shall not be obligated, to pay said charges and taxes. It Lessor pays any
charges or taxes for which Lessee is responsible or liable under this Lease, Lessee shall, upon demand, reimburse Lessor therefor.
16. RISK OF LOSS; DAMAGE; DESTRUCTION. Lessee assumes all risk of loss of or damage to the Equipment from any cause whatsoever, and
no such loss of or damage to the Equipment shall relieve Lessee of the obligation to make the Rental Payments or to perform any other obligation
under this Lease. In the event of damage to any item of Equipment, Lessee shall immediately place the same in good repair (the proceeds of any
insurance recovery shall be applied to the cost of such repair). If Lessor determines that any item of Equipment is lost, stolen, destroyed or damaged
beyond repair, Lessee, at the option of Lessor, shall: (a) replace the same with like equipment in good repair; or (b) on the next Rental Payment date
pay to Lessor (i) all amounts owed by Lessee underthis Lease, including the Rental Payment due on such date, and (ii) an amount not less than the
balance of the Rental Payments then remaining unpaid hereunder. In the eventthat Lessee is obligated to make such payment with respect to less
than all of the Equipment, Lessor shall provide Lessee with the pro rata amount of the Rental Payment and the balance of the Rental Payments then
remaining unpaid hereunder, as applicable, to be made by Lessee with respect to the Equipment which has suffered the event of loss.
17. INSURANCE. Lessee shall, at its expense, maintain at all times during the Lease Term, fire and extended coverage, public liability and property
damage insurance with respect to the Equipment in such amounts, covering such risks, and with such insurers as shall be satisfactory to Lessor. In
no event shall the insurance limits be less than an amount equal to the balance of the Rental Payments then remaining for the Lease Term. Each
insurance policy shall name Lessee as an insured and Lessor or its assigns as an additional insured and loss payee, as appropriate, and shall
contain a clause requiring the insurer to give Lessor or its assignee at least thirty (30) days prior written notice of any alteration in the terms otsuch
policy or the cancellation thereof. The proceeds of any such policies shall be payable to Lessee and Lessor or its assigns, as their interests may
appear. Upon acceptance of the Equipment and upon each insurance renewal date, Lessee shall deliver to Lessor a certificate evidencing such
insurance. In the event of any loss, damage, injury or accident involving the Equipment, Lessee shall promptly provide Lessor with written notice
thereof and make available to Lessor all information and documentation relating thereto. Notwithstanding the foregoing, with Lessor's prior written
consent Lessee may self- insure against any and all risks for which insurance is required.
18. INDEMNIFICATION. In the event that Lessee is not a state or political subdivision thereof, within the meaning of Section 103 of the Code, or if
Lessee, whether by its use of the Equipment or by its actions or omissions or by any means whatsoever, causes any interest payment as set forth in
Exhibit C to be included in Lessor's gross income, Lessee agrees to pay to Lessor, its Assignees and any participants with such, an additional
amount which, together with the amount of interest to be paid by Lessee under this Lease, puts Lessor, its Assignees and any participants with such,
in the same after -tax position they would have been in had such payments been excluded from the gross income of Lessor, its Assignees and any
participants with such under Section 103 of the Code. In addition, Lessee agrees to indemnify Lessor against and hold Lessor, its Assignee, or any
participants with such, harmless from, any and all claims, actions, proceedings, expenses, damages, liabilities or losses (including, but not limited to,
aaomeys' fees and court costs) arising in connection with the Equipment including, but not limited to, its selection, purchase, delivery, possession,
use, operation or return and the recovery of claims under insurance policies thereon.
19. EVENTS OF DEFAULT. The term "Event of Default", as used in this Lease, means the occurrence of any one or more of the following events: (a)
Lessee fails to make any Rental Payment (or any other payment) as it becomes due in accordance with the terms of this Lease, and any such failure
continues for five (5) days after the due date thereof; (b) Lessee fails to perform or observe any other covenant condition or agreement to be
performed or observed by it hereunder and such failure is not cured within ten (10) days after written notice thereof by Lessor, (c) the discovery by
Lessor that any statement, representation or warranty made by Lessee in this Lease or in any document ever delivered by Lessee pursuant hereto
or in connection herewith is false, misleading or erroneous in any material respect (d) Lessee becomes insolvent is unable to pay its debts as they
become due, makes an assignment for the benefit of creditors, applies or consents to the appointment of a receiver, trustee, conservator or
liquidator of Lessee or of all or a substantial part of fts assets, a petition for relief is filed by Lessee under federal bankruptcy, insolvency or similar
laws, or a pelf on in a proceeding under any bankruptcy, insolvency or similar laws isfiled against Lessee and is not dismissed within thirty (30) days
thereafter, (e) Lessee suffers an adverse material change in its financial condition or operations from the date hereof and, as a result Lessor deems
itself insecure; or (f) Lessee shall be in default under any other agreement executed at any time with Lessor, its affiliates or Lessor's Assignee or
under any other agreement or instrument by which it is bound.
20. REMEDIES. Upon the occurrence of an Event of Default, Lessor may, at its option, exercise any one or more of the following remedies: (a) by
written notice to Lessee, declare an amount equal to all amounts then due under this Lease and all remaining Rental Payments which shall become
due during the Lease Term to be immediately due and payable, whereupon the same shall become immediately due and payable; tb) by written
notice to Lessee, request Lessee to (and Lessee agrees that it shall), at lessee's expense, promptly return the Equipment to Lessor in the manner
set forth in Section 8 hereof, or Lessor, at its option, may enter upon the premises where the Equipment is located and take immediate possession of
and remove the same without liability to Lessor or its agents for such entry or for damage to property or otherwise; (c) sell or lease the Equipment or
sublease it for the account of Lessee, holding Lessee liable for (i) all Rental Payments and other payments due to the effective date of such selling,
leasing or subleasing, and (ii) for the difference between the purchase price, rental and other amounts paid by the purchaser, lessee or sublessee
pursuant to such sale, lease or sublease and the remaining amounts payable by the lessee hereunder; and (d) exercise any other right, remedy or
privilege which may be available to it under applicable law, including the right to (i) proceed by appropriate court action to enforce the terms of this
Lease, (ii) recover damages for the breach of this Lease, and (iii) rescind this Lease as to any or all of the Equipment.
In addition, Lessee shall remain liable for all covenants and indemnities under this Lease and for all legal fees and other costs and expenses.
including court costs, incurred by Lessor with respect to the enforcement of any of the remedies listed above or any other remedy available to
Lessor.
21. EARLY PURCHASE OPTION. Lessee may, upon sixty (60) days prior written notice to Lessor, and provided Lessee shall have fully paid anc
performed all other obligations hereunder and provided no Event of Default has occurred and is continuing, pay to Lessor the applicable amount set
forth on Exhibit C attached hereto, whereupon title to the Equipment shall become unconditionally vested in Lessee and Lessor shall transfer any j
and all of its right, title and interest in the Equipment to Lessee as is, where is, without warranty, express or implied, except that Lessor shall warrant tc
Lessee that the Equipment is free and clear of any liens created by Lessor.
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22. ASSIGNMENT. Without Lessor's prior written consent, Lessee shall not: (a) assign, transfer, pledge, hypothecate or grant any security interest in,
or otherwise dispose of, this Lease or the Equipment or any interest in this Lease or the Equipment or (b) sublet or lend the Equipment or permit the
Equipment to be used by anyone other than Lessee or Lessee's employees.
Lessor, without the consent of Lessee, may assign all or any portion or portions of its right, title and interest in and to this Lease, the Equipment and
any other documents executed with respect to this Lease, and /or grant or assign all or any portion or portions of its security interest in this Lease and
the Equipment, in whole or in part to various assignees, their agents or trustees (each and any one hereinafter referred to as an "Assignee "). Any
such assignment to an Assignee may provide that Lessor or the Assignee shall act as a collection and paying agent for holders of certificates of
participation in this Lease, or may provide that a third -party trustee or agent shall act as collection and paying agent for any Assignee, provided
Lessee receives written notification of the name and address of the trustee or the agent and a copy of the pooling and fractionalization agency or
trustee agreement, if any. Any such Assignee shall have all of the assigned rights of Lessor under this Lease. Subject to the foregoing, this Lease
shall inure to the benefit of and is binding upon the heirs, executors, administrators, successors and assigns of the parties hereto. Any assignment or
reassignment of any of Lessor's right, title or interest in this Lease or the Equipment shall be effective upon receipt by Lessee of a duplicate original of
the counterpart document by which the assignmentor reassignment is made, disclosing the name and address of each such assignee and, where
applicable, to whom further payments hereunder should be made. During the Lease Term, Lessee covenants that it shall keep a complete and
accurate record of all assignments in form necessary to comply with Section 149(a) of the Code and the regulations, proposed or existing, from time
to time promulgated thereunder. Lessee agrees to acknowledge, in writing, any assignments if so requested.
LESSEE AGREES THAT, UPON NOTICE OF ASSIGNMENT, IF SO INSTRUCTED IT SHALL PAY DIRECTLY TO THE ASSIGNEE, OR ITS
TRUSTEE OR AGENT WITHOUT ABATEMENT, DEDUCTION OR SETOFF ALL AMOUNTS WHICH BECOME DUE HEREUNDER. LESSEE
FURTHER AGREES THAT IT SHALL NOT ASSERT AGAINSTANY ASSIGNEE, TRUSTEE OR AGENT ANY DEFENSE, CLAIM, COUNTERCLAIM
OR SETOFF ON ACCOUNT OF ANY REASON WHATSOEVER WITH RESPECT TO ANY RENTAL PAYMENTS OR OTHER AMOUNTS DUE
HEREUNDER OR WITH RESPECT TO ANY ACTION BROUGHT TO OBTAIN POSSESSION OF THE EQUIPMENT PURSUANT TO THIS LEASE
23. NATURE OF AGREEMENT. Lessor and Lessee agree that it is their intention that for federal income tax purposes, the interest of Lessor in the
Equipment is as a secured party and the interest of Lessee is as a debtor, and that Lessor neither has nor shall have any equity in the Equipment It is the
agreement of Lessor and Lessee that the aggregate rental payments provided for hereunder constitute the purchase price of the Equipment together with
interest on the unamor ized amount thereof over the term of this Lease, that each monthly installment of rent constitutes principal and interest, in
accordance with the schedule of rental payments set forth in Exhibit C of this Lease, which fully amortizes the purchase price of the Equipment, together
with interest, overthe term of this Lease, and that upon the due and punctual payment and performance of the installments of Rental Payments and other
amounts and obligations under this Lease, title tothe Equipment shall vest permanently in Lessee as provided in this lease, free and clear of any lien or
security of Lessor therein.
24. AMENDMENTS. This Lease may be amended or any of b terms mbdtied for the purpose of adding Equipment, with the written consent of the
parties hereto. In such event, additions to or additional exhibits attached hereto shall be executed by Lessee. All other amendments or modifications of
the terms of this Lease (except for the addition of serial numbers for the Equipment as set forth in the Acceptance Certificate) must be accomplished by
written consent of Lessee and Lessor, or its Assignee, if any, provided, however, that no amendment of this Lease shall operate to reduce or delay any
Rental Payments to be made hereunder without the consent of Lessor, or its Assignee, at the time of such amendment
25. NOTICES. All notices to be given under this Lease shall be made in writing and mailed by certified mail to 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 notice shall be deemed to have been received five (5) days subsequent
to mailing
26. SECTION HEADINGS. All section headings contained herein are for the convenience of reference only and are not intended to define or limit the
scope of any provision of this Lease.
27. GOVERNING LAW. This Lease shall be governed by the provisions hereof and by the laws of the state or otherjurisdiction where the Equipment is
located.
28. FURTHER ASSURANCES. Lessee shall deliver to Lessor. (i) an opinion of counsel in substantially the form of Exhibit D attached hereto or as Lessor
may otherwise request and (ii) it applicable, a certificate of a duly authorized official as to designation as a qualified tax- exempt obligation. Moreover,
Lessee shall execute or provide, as requested by Lessor, any documents and information which are reasonably necessary with respect to the
transaction contemplated by this Lease. Lessee hereby authorizes Lessor to execute and file on behalf of Lessee and as Lessee's attomey -in -fact such
UCC financing and conti nuation statements as Lessor deems necessary to secure its and /or its Assign's interest in the Equipment or this agreement
29. ENTIRE AGREEMENT. This Lease, together with the exhibits attached hereto and made a part hereof and other attachments hereto, and other
documents or instruments executed by Lessee and Lessor in connection herewith, constitute the entire agreement between the parties with respect to
the lease of the Equipment and this Lease shall not be modified, amended, altered or changed except with the written consent of Lessee and Lessor.
30. SEVERABILITY. Any provision of this Lease found to be prohibited by law shall be ineffective to the extent of such prohibition without invalidating
the remainder of this Lease.
31. WAIVER. The waiver by Lessor of any breach by Lessee of any term, covenant or condition hereof shall not operate as a waiver of any
subsequent breach hereof.
LESSOR: CIY %CO /p NOICh America, Inc. LESSEE: C,l 'tom
MUNI IP ENT1
DATE: BY: X
AUTHORIZED SIGNATURE
BY:
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PRiNTEO NAME4N0 TITLE q
DATE:
A ED A AND TITLE CNAVPG 1127 pnf >l
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PAX NO:
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FAX COVER SHEET
CIT`�OF NEWPORT �ACH
q F'F E OF THE CITY CLERK
P.O. BOX 1768. . NEWPORT BEACH, CA 92658-8911;
(714) 644 -3003
THE POLLOWING DOCUMENT IS PROM:
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CITY F NEWPORT B
3300 NEWPORT BOULEVARD
NEWPORT BEACH. CA 92663
PHONE NO: 714) 644 -3005
FAX NOx C7X43 544 -3339
NO. OF PAGBSx SPECIAL
INSTRUCTIONS;
3300 Newport Boulevard., Newport Beach
TRANSMISSION REPORT
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TOTAL 0:02'38" 3
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FP,OM
TO 7146443339
4E'R SERVICE
CITICORPOCiTIBAN C .
12/20/1989 11:31 P.01
FROM
AM(1RTT7ATT(1N SCNFT111!,F PnR M1INTCTPAI I FA5FR
Mnnt.hly in Arivmnf!s,
GAPTTAI CfiST 7q S97.77
RATE 9.4R3R%
TFNt1R ( YFAR9 1 5
PAYMENT 514.10
FAYMFNT
PAYMENT PPTNCTPAI
TNTPRFRT
PRFPAYMFNT
t
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AM1711NT PAT1? PATH AMt111NT
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449.50
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534.30
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A47,AW
TO 7146443339
12/20/1989
11:31
P.92
Initi4l_Pf
Date 12-LC -,91
FROM TO 7146443339 12/20/1965 11:32 TOTAL P,03
41
534. ?0
459,97
77.99
9
5R1.7f�
47
534,30
4901,77
74.0R
9
1 }1.913
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791.49
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SA 7q
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7
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534,391
497.43
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770. GA
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44.73
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770,71
51
534.30
AgI,93
40.37
4
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709.17
53
534.30
.5,0 1,75
37.54
3
R97. 71;
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534,301
SON. 71
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3
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534.30
513,77
70. RA
7
137,97
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536.30
517.77
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17. 4d
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90
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530.17
4.19
qq
Initi4l_Pf
Date 12-LC -,91
FROM TO 7146443339 12/20/1965 11:32 TOTAL P,03
0
NOV 2 T 1989
11
City Council Meeting
December 11, 1989
Agenda Item No. F -2 h)
TO: MAYOR STRAUSS AND MEMBERS OF THE CITY COUNCIL
From: Robert J. Dixon, Utilities Director
SUBJECT: MARINE SAFETY TELECOMMUNICATIONS C. 2 7,y j
Recommendation:
1. If approved, authorize the Mayor to sign a lease agreement with
Citicorp North America for a replacement telephone switch.
2. If approved, adopt a resolution as request by the Lessor regarding
financial planning requirements permitting the approval of the lease.
Background:
When the City converted its telephone equipment from AT &T to its own
NEC switch and equipment through a lease purchase arrangement with NEC
the Marine Department was not included in the transition.
The Marine Department has special communications requirements due to its
need to respond to localized emergencies, its situation near the water, and the
increase in personnel that accompanies holidays and the summer. The
switch in place at the time of the City's change over was deemed to be
adequate and no changes were made.
The Marine Department was informed near the end of the summer that
AT &T would no longer be able to service the system due to its age, the lack of
spare parts, as well as experienced technicians to repair the system. The cut
off day for AT &T service is December 31, 1989.
The Marine Department working with the Utilities Department's
Telecommunications Division has worked to incorporate its
communications requirements with the City's existing system. As was the
case in the past with AT &T a monthly payment is required. The monthly
payment will be $534.30. At the end of five years the City will own the switch.
This is the same procedure the City followed in implementing the
changeover of the City Hall and Police telephone switches. Sufficient funds
are available in this year's budget for Marine Department Utilities.
0 •
The new switch will allow the Marine Department to continue operations
without interruption through loss of telephones, it will provide for operation
and repair by the City's Telecommunications Division rather than by outside
vendors, City -wide operational efficiency will be increased through the inter -
change of repair parts, and the Marine Department will have a flexible
telecommunications system available to meet the demands of the future.
Utilities Director
z
i
EXHIBIT E to
STATE AND MUNICIPAL LEASE/PURCHASE AGREEMENT
CERTIFICATE OF RESOLUTIONS
0
I, do hereby certify that I am the duly elected, or appointed
and acting Secretary/Clerk of the City of Newport Beach
an agency duly organized and existing under the laws of the State of (the "Lessee"),
and that the following resolutions have been presented to and duly adopted by the
at a meeting duly and regularly held and convened in accordance with applicable law on the
day of 19 .
WHEREAS, the Lessee is entering a State and Municipal Lease /Purchase Agreement ( "Lease ") dated 19
with Citicorp North America, Inc.;
WHEREAS, Lessee has carefully reviewed its financing requirements for the current calendar year and reasonably expects that it will
not issue more than ten million dollars ($10,000,000) of tax- exempt obligations during the calendar year;
NOW, THEREFORE, be it RESOLVED, that the Lessee be, and hereby is, authorized to enter into the Lease with Citicorp North
America, Inc. for a period of months, and be it further
RESOLVED, that an official of the Lessee be, and hereby is, authorized, empowered and directed to sign on its behalf the Lease
and any addenda, schedules, notes, UCC financing statements or other instruments issued under the provision of the Lease
and any other instrument or document which may be necessary or expedient in connection with agreement upon or fulfillment
of the provisions of the Lease.
RESOLVED, that pursuant to Section 265(b) (3) of the Internal Revenue Code of 1986, as amended, this Lease be and hereby is
designated a "qualified tax - exempt obligation" includable within the ten million dollars ($10,000,000) of the aggregate issues
designated as "qualified tax- exempt obligations" for the calendar year within which this Lease is entered into.
RESOLVED, that Lessee shall not designate more than ten million dollars ($10,000,000) of tax- exempt obligations during the
current calendar year as qualified tax - exempt obligations and Lessee, together with its subordinate entities, does not
reasonably expect to issue more than ten million dollars ($10,000,000) of tax- exempt obligations during the current calendar
year.
IN WITNESS WHO F, I have duly executes -tbis certificate and affixed the seal hereto this day of
191L2_.
Lessee: City of Newport Beach
CNA/VPG 1123 -e 7 -87
(Municipal Entity)
By:
(Signature of Secretary/Cler
(Printed Name)
RESOLUTION NO. 89 -135
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH STATE AND MUNICIPAL LEASE /PURCHASE
AGREEMENT CERTIFICATE OF RESOLUTIONS
WHEREAS, the Lessee is entering a State and Municipal
Lease /Purchase Agreement ( "Lease ") dated Nov. 28 19 89 , with
Citicorp North America, Inc.;
WHEREAS, Lessee has carefully reviewed its financing
requirements for the current calendar year and reasonably expects that it will
not issue more than ten million dollars ($10,000,000) of tax - exempt
obligations during the calendar year;
NOW, THEREFORE, BE IT RESOLVED that the Lessee be, and
hereby is, authorized to enter into the Lease with Citicorp North America,
Inc. for a period of 60 months, and be it further
RESOLVED that an official of the Lessee be, and hereby is,
authorized, empowered and directed to sign on its behalf the Lease and any
addenda, schedules, notes, UCC financing statements or other instruments
issued under the provision of the Lease and any other instrument or
document which may be necessary or expedient in connection with
agreement upon or fulfillment of the provisions of the Lease.
RESOLVED, that pursuant to Section 265(b) (3) of the Internal
Revenue Code of 1986, as amended, this Lease be and hereby is designated a
"qualified tax- exempt obligation" includable within the ten million dollars
($10,000,000) of the aggregate issues designated as "qualified tax- exempt
obligations" for the calendar year within which this Lease is entered into. .
RESOLVED, that Lessee shall not designate more than ten
million dollars ($10,000,000) of tax - exempt obligations during the current
calendar year as qualified tax - exempt obligations and Lessee, together with its
subordinate entities, does not reasonably expect to issue more than ten
million dollars ($10,000,000) of tax exempt obligations during the current
calendar year.
IN WITNESS WHEREOF, I have duly executed this certificate
and affixed the seal hereto this 27th day of November 1989 .
Lessee:_ CITY OF NEWPORT BEACH
ATTEST:
By:
(City Clerk)
NOTE: For Marine Safety Telecommunications