HomeMy WebLinkAboutResolution - 082 - Contract - OMB & FMLC - 60 Month Lease Of Optical Recognition Equipment - 02_22_1979q LGB:hw
RESO - 82
2/22/
UFQ0T TTTTnM
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock BE and is hereby authorized and
directed to execute for and on behalf of the City of Lubbock a contract with
First Municipal Leasing Corporation for a 60 month lease of Optical Recog-
nition Equipment (Bid #5103), attached herewith which shall be spread upon the
minutes of the Council and as spread upon the minutes of this Council shall
constitute and be a part of this Resolution as if fully copied herein in
detail.
Passed by the City Council this 22nd day of February 11979.
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0-1
"K WEST, MAYOR
ATTEST:
E elyn Gaf a, City Sec e r Treasurer
APPROVED AS TO CONTENT:
"
Bob Gree Director of M.I.S.
APPROVED AS TO FORM:
A0 1
Leon G. Bean, Asst. City Attorney
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AGREEMENT
THIS AGREEMENT, made this 22nd day of February , 1979, by and
between the City of Lubbock, 916 Texas Avenue, Lubbock, Lubbock County, Texas
79457 referred to as "City," Optical Business Machines, Inc., a Delaware cor-
poration situated at 804 West New Haven Avenue, Melbourne, Florida 32901,
authorized to do business in Texas and referred to as "OBM", and First Muni-
cipal Leasing Corporation, 8301 East Prentice Avenue, Englewood, Colorado
80111, referred to as "FMLC."
WHEREAS, City has determined that a present need of City exists for the
personal property described in Exhibit A attached hereto, hereinafter referred
to as the "Equipment" and that it desires to acquire the use of the Equipment
as soon as possible, and
WHEREAS, City is•authorized by the laws of the State of Texas to enter
into this Agreement, and
WHEREAS, City desires to maintain privity of contract with OBM, notwith-
standing that City agrees to accept FMLC, as assignee of OBM for the purposes
of leasing the Equipment.
NOW, THEREFORE, it is hereby agreed that for and in consideration of the
premises hereinafter contained, the parties agree as follows:
COVENANTS OF OBM. OBM represents, covenants and warrants to City that Equip-
ment meets or exceeds the performance requirements set forth in City's RFP No.
5103.
COVENANTS OF CITY. City represents, covenants and warrants that it is a public
body corporate and politic and is authorized by the Constitution and laws of
the State of Texas to enter into the transactions contemplated by this Agree-
ment and to carry out its obligations hereunder. City has been duly authorized
to execute and deliver this Agreement and agrees that it will do or cause to be
done all things necessary to preserve and keep in full force and effect its -
existence. City further represents, covenants and warrants that all procedures
have been met so that this Agreement is enforceable.
ASSIGNMENT OF LEASE PAYMENTS. OBM hereby gives notice to City that contempor-
aneous with the execution of this Agreement, OBM assigns all rights to payments
under this Agreement to FMLC and hereby requests, gives notice and instructs
the City,, that the payments that hereafter come due pursuant to the Agreement
be paid • to, FMLC or its assignee.,
AGREEMENT TERM. The Agreement Term shall commence as of the date of the
acceptance of the Equipment, which shall be evidenced by the execution of the
Receipt Certificate, but in no event shall be -Agreement Term commence later
than April 20 , 19 79
City shall pay to FMLC a sum of $1,946.00 each month for sixty (60) con-
secutive months, as lease payments, as shown in Exhibit.B attached hereto and .
made a part hereof. Each payment herein shall be paid in lawful money of the
United States of America to a depository transfer agent designated by FMLC,
prior to closing. Notwithstanding any dispute between City and FMLC, City
shall make all payments when due and shall not withhold any payments pending
final resolution of such dispute. City hereby covenants to take such action as
is necessary under the laws applicable to City to budget,for and -include and
maintain funds sufficient and available to discharge its obligations to meet
all payments due during the Agreement Term pursuant to provisions of the
Agreement.
NONAPPROPRIATION. Lessee's obligations to pay any amounts due for those fiscal
years succeeding the current fiscal year are contingent upon legislative appro-
priation or approval of funds for that purpose. Therefore, the Lessee may
terminate this.Lease effective as of the end of any of its succeeding fiscal
years by giving Lessor thirty (30) days prior written notice of the termination
and advising Lessor of the location(s) where the Leased Equipment may be found
on the termination date.
In such event all obligations of Lessee to make payments due after the
termination date will cease and all interests of Lessee in the Leased Equipment
will terminate. Notwithstanding the foregoing, Lessee agrees (i) not to
terminate equipment under this provision if any funds are appropriated to it
for the acquisition .(by either purchase of lease) of the Leased Equipment for
the fiscal year in question and (ii) that the City staff will use its best
efforts to obtain appropriation of the necessary funds to avoid termination by
taking all appropriate action including the inclusion in the Data Processing
budget request for each fiscal year during the term hereof a request for ade-
quate funds to meet its obligations and to continue the Lease in force.
Lessee represents and warrants -it has adequate funds to meet its obligations
during its current fiscal appropriation period.
OPTIONS TO PURCHASE. City may at its option acquire title to the Equipment
through any of the following acts: (1) by making sixty monthly lease payments
totalling $116,760.00, (2) by making a lump sum payment equal to the unpaid
monthly lease payments resulting in a combination of lease payments and a lump
sum payment totalling $116,760.00, or (3) if the Agreement Term is terminated
prior to sixty months because of the total damage or destruction of the Equip-
ment and City is not in default of this Agreement on the termination date.
Upon the occurence of any of the enumerated.acts constituting an option to
purchase, FMLC shall at that time deliver to City a bill of sale transferring
title to the Equipment to City free from any lien or encumberance created by or
Arising through FMLC, but.without other warranties, and shall deliver all.
warranties or, guaranties of the manufacturer or manufacturers of the Equipment
to City.
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TERMINATION. The Agreement Term -shall be for five years, unless otherwise
terminated as provided in this Agreement. This Agreement shall terminate upon
the occurence of any of the following acts: (1) if the City exercises its
right of nonappropriation, (2) when the City exercises an option to purchase,
or (3) whenever the City cancels this Agreement due to lack of performance,
subject to City giving OBM sixty (60) days written notification of its intention.
In the event City terminates said lease pursuant to its right of cancel-
lation for lack of performance, OBM agrees that it will continue to make pay-
ments as set forth in said Lease to City and City agrees to endorse said pay-
ment or payments to FMLC.
TITLE. Title in the Equipment shall be in FMLC during the Agreement Term of
this lease. In the event City terminates said lease pursuant to its right of
cancellation for lack of performance, and OBM continues to make the payments as
set forth in said Lease to City, QBM shall succeed to City's Options to Pur-
chase Nos. (1) and (2) as set out above.
CARE AND USE -OF EQUIPMENT. City at its own cost and expense, shall maintain
the Equipment in good operating condition, repair and appearance, and protect
same from deterioration other than normal wear and tear; shall use the Equip-
ment in the regular course of its business only, within its normal capacity,
without abuse, and in a manner contemplated by the manufacturer thereof; shall
not make modifications, alterations or additions to the Equipment (other than
normal operating accessories -or controls), without the written consent of FMLC,
which shall not be unreasonably withheld; shall not so affix the Equipment to
realty so as to change its nature to real property, and agrees that the Equip-
ment shall remain personal property at all times regardless of how attached or
installed; shall keep the Equipment on the premises where delivered and shall
not remove the Equipment without the written consent of FMLC, which shall not
be unreasonably withheld. All modifications, repairs, alterations, additions,
replacements, substitutions, operating accessories and controls shall accrue to
the Equipment. FMLC shall have the right, during normal hours, to enter upon
the premises where the Equipment is located in order to inspect, observe or
otherwise protect FMLC's interest, and City shall cooperate in affording FMLC
the opportunity to do same. For the purpose of assuring FMLC that FMLC's
Equipment will be properly serviced, City agrees to cause the Equipment to be
maintained pursuant to the manufacturer's standard preventive maintenance
contract and/or recommendations. City agrees that FMLC shall not be respon-
sible for any loss or damage whatsoever to the Equipment, nor shall FMLC be
responsible for latent defects, wear and tear or gradual deterioration or loss
of service.or use of. the Equipment or any part thereof. FMLC shall not be
liable to City or anyone else for any liability, claim, loss, damage or expense
of any kind or nature caused directly or indirectly by the inadequacy of the
Equipment, or any item supplied by OBM or any other party, any interruption of
use or loss of service or use or performance of any Equipment; any loss of
business or other consequence or damage, whether or not resulting'from any of
the foregoing.
-3-
NET AGREEMENT. City intends the payments in this Agreement to be net to FMLC.
City shall comply with all laws and shall pay all taxes, if any, including but
not limited to sales and use taxes, excise taxes, personal property taxes and
assessments,' licenses, registrations fees, freight and transportation charges
and any similar charges imposed on the ownership, possession, or use of the
Equipment during the term of this Agreement. City shall pay to FMLC all costs
and oxpenses including attorney's fees as hereinafter defined, storage, care- "
taking and repossession expenses in connection with the enforcement of FMLC's
rights under this Agreement. In case any charges, costs, taxes or expenses
required to be paid by the City under this Agreement shall remain unpaid after
the due date thereof, FMLC shall have the right but shall not be obligated to
pay the same and to charge such payments with interest at the highest legal
rate from the date of said payment, as additional payments, to be paid with the
next payment.
DISCLAIMER OF WARRANTIES. FMLC is not a manufacturer of the Equipment or a
dealer in similar -equipment, does not inspect the Equipment prior to'delivery
to City and has not made and does not make any representation, warranty, or
covenant with respect to condition, quality, durability, suitability, or merchan-
tability of the Equipment in any respect, or any other representation, warranty
or covenant, express or implied. FMLC shall not be liable to City for any
liability, loss, or damage caused or alleged to be caused directly or indirectly
by the Equipment, by the inadequacy thereof or deficiency or defect therein or
by any incident whatsoever in connection therewith.
ENJOYMENT OF EQUIPMENT. OBM and FMLC hereby covenant to provide City during
the Agreement Term with quiet use and enjoyment of the Equipment, and City
shall during the Agreement Term peaceably and quietly have and hold and enjoy
the Equipment, without suit, trouble or hindrance from FMLC or OBM except as
expressly set forth in this Agreement. Any assignee of FMLC or OBM shall not
interfere with such quiet use and enjoyment during the Agreement Term so long
as City is"not in default pursuant to this Agreement.
EVENTS OF DEFAULT. City shall be deemed to be in default hereunder upon the
happening of any .of the following events of default: (a) City shall fail to
make any payment, or to pay any other payments required to be paid hereunder,
or (b) City shall fail to keep any such other term, covenant or condition
contained herein.
REMEDIES OF DEFAULT. Upon the occurrence of an event of default as specified
above, and City shall fail to remedy such event of default with all reasonable
dispatch within a period of thirty (30) days, then FMLC or its assigns shall
have the right, at its option without any further demand or notice, to pursue
any one or more of the following remedies: (a) By written notice to City
declare an amount equal to all payments due during the Agreement Term to be
immediately due and payable as liquidated damages and not as a penalty, where-
upon the same shall become immediately due and payable; (b) Re-enter and take
possession of the Equipment enforcing the Agreement or terminating the Agree--
ment, and repossess the Equipment. and sell or lease the Equipment or sublease
-4-
it for the account of City, holding City liable for all payments due up to the
effective date of such selling, leasing or subleasing and for the difference in
the purchase price, rental and other amounts paid by the purchaser, lessee or
sublessee pursuant to such sale, lease'or sublease and the amounts payable by
City hereunder; and (c) take whatever action at law or in equity may appear
necessary or desirable to collect the payments then due and thereafter to
become due, or to enforce performance and observance.of any obligation, agree-
ment or covenant of City under this Agreement.
INSURANCE, At its own expense City shall cause casualty insurance to be
carried and maintained with respect to the Equipment and shall carry public
liability and property damage insurance sufficient to protect the full value of
the Equipment and to protect FMLC from liability in all events. All insurance
proceeds'from casualty losses shall be payable solely to City subject to the
terms of this Agreement. On acceptance of the Equipment,. City shall have
purchased a casualty insurance policy on the Equipment, a copy of which shall
be furnished FMLC. The amount of the policy shall be equal to all payments of
City under this Agreement.
City shall carry Workmen's Compensation insurance covering all employees
working on, in, near or about the Equipment and shall require any other person
or equity working on, in,' near or about the. Equipment to carry such coverage,
and will furnish to FMLC certificates evidencing such coverage throughout the
Agreement Term.
=5-
IN WITNESS WHEREOF, City, OBM and FMLC have caused this Agreement to be
executed by their respective officers hereunto duly authorized, all as of the
day and year first above written.
(SEAL)
Attest:
elyn Gaffga, City S c e ry-Treasurer
(SEAL)
�Atte
(SEAL) -- - .
Attest 4"
Kathryn 1�. fMy'rj4,k, Secreta
CITY OF LUBBOCK, ("City")
By
isle: Mayor
OPTICAL BUSINESS MACHINES, INC.,
("OBM" )
FIRST MUNICIPAL LEASING CORPORATION,
("FMI.C" )
By: /ld 644'-f
Robert Bauers, Vice President
APPROVED AS TO CONTENT:
Bob green, Dire or, Data Processing
APPROVED AS TO FORM:
Leon Bean, Asst. City Attorney
EXHIBIT A
SCHEDULE OF EQUIPMENT
The Leased Equipment is as follows:
One (1) Laser OCR I Scanner System 9 Track 800 BPI with numeric
hand print and E-13B Recognition System.
One (1) FDC Binary Printer.
The Lessee hereby certifies that the description of the personal
property set forth above constitutes an accurate account of the "Leased
Equipment" as defined in the Lease.
CITY OF LUBBOCK
Lessl��,
By
Ti M01"' Mayor
Page 7 of 10
EXHIBIT B
FIRST MUNICIPAL LEASING CORPORATION
MONTHLY LEASE PAYMENT SCHEDULE
THE LESSEE IS CITY OF LUBBOCK
THE ORIGINAL LEASE VALUE 100r657.00
PAYjiENT
.BASE
AMT
CREDITED
AMT CREDITED TO
NUMBER
PAYMENT
TO
INTEREST
ORIGINAL LEASE VALUE
ORIGINAL TERM
1
$1r946.00
$
503.26
$1r442.74
2
$1r946.00
$
496.05
$1r449.95
3
$1r946.00
$
488.80
$1r457.20
4
$1r946.00
$
481.51
$1r464.49
5
$ir946.00
$
474.19
$1r471.81
6
$1r946.00
$
466.83
$1r479.17
7
$1r946.00
$
459.44
$1r486.56
8
$ir946.00
$
452.00
$1r494.00
9
$1r946.00
$
444.53
$1r501.47
10
f4 r946.00
$
437.03
$1r508.97
11
.$1r946.00
$-429.48--
-61r516.52
12
$1r946.00
$
421.90
$1r524.10
*CONCLUDING
PAYMENT
$82r859.53
FIRST RENEWAL TERM
13
$1r946.00
$
414.28
$1r531.72
14
$1r946.00
$
406.62
$1r539.38
15
$1r946.00
$
398.93
$1r547.07
.16
$1r946.00
$
391.19
$1r554.81
17
$1r946.00
$
383.42
$ir562.58
18
$1r946.00
$
375.61
$1r570.39
19
$1r946.00
$
367.75
$1r578.25
20
$1r946.00
$
359.86
$1r586.14
21
.$1r946.00
$
351.93
$1r594.07.
22
$1r946.00
$
343.96
$1r602.04
23
$1r946.00
$
335.95
$1r610.05
24
$1r946.00
$
327.90
$1r618.10
*CONCLUDING
PAYMENT
$63r965.14
0
SECOND RENEWAL TERM
---------------
25
$1r946.00
$
319.81
$1r626.19
26
$1r946.00
$
311.68
$1r634.32
27
$1r946.00 ..
$
303.51
$1r642.49
28
$1r946.00
$
295.30
$1r650.70
29
$1r946.00
$
287.05
$1r658.95
30
$ir946.00
$
278.75
$1r667.25
31
$1r946.00
$
270.42
$1r675.58
32
$ir946.00
$
262.04
$ir683.96
33
$ir946.00
$
253.62
$ir692.38
34
$ir946.00
$
245.16
$1r700.84
35
$ir946.00
$
236.65
$1r709.35
36
$1r946.00
$
228.11
$ir717.89'
*CONCLUDING
PAYMENT
$43r905.37
THIRD RENEWAL
----------------
TERM
37
$Ir946.00
$
219.52
$1r726.48
38
$1r946.00
$
210.89
$1r735.11
39
$1r946.00
$
202.21
$1r743.79
40
$1r946.00
$
193.49
$1r752.51
41
$1s946.00
$
184.73
$1r761.27
42
$1r946.00
$
175.92
$1r770.08
43
$1r946.00
$
167.07
$1r778.93
44
$1r946.00
$
158.18
$1r787.82
45
$Ir946.00
$
149.24
$1r796.76
46
$Ir946.00
$
140.26
$1r805.74
47
$1r946.00
$
131.23
$1r814.77
48
$1r946.00
$
122.16
$1r823.84
*CONCLUDING
PAYMENT
$22r608.35
FOURTH RENEWAL
TERM
---------------
49
$1r946.00
$
113.04
$1r832.96
50
$1r946.00
$
103.87
$IY842.13
51
$Ir946.00
$94.66
$ir851.34
52
$1r946.00
$85.41
$1r860.59
53
$1r946.00
$76.10
$1r869.90
54
$1r946.00
$66.75
$1r879.25
55
$1r946.00
$57.36
$ir8B8.64
56
$1r946.00
$47.92
$1r898.08
57
$1r946.00
$38.43
$1r907.57
58
$1r946.00
$28.89
$1r917.11
59
$Ir946.00
$19.30
$1r926.70
60
$1r943.82
$9.67
$ir934.15
*CONCLUDING
PAYMENT
$1.00
WAIVED IF LEASE TERM IS CONTINUED
------------
$ 100r657.00
'.try
EXHIBIT C
OPINION OF COUNSEL
FIRST MUNICIPAL LEASING CORPORATION
8301 East Prentice Avenue
#30 Denver Technological Center
Englewood, Colorado 80110
Gentlemen:
As counsel for Lessee I have examined duly executed originals - of
Equipment Lease/Purchase Agreement (the "Lease") dated as.of 'Feb. 22' ,
19 79 , between the City of Lubbock , Lessee
and First Municipal Leasing Corporation, Lessor, and the proceedings taken
by the Lessee to authorize and execute said Lease.- Based upon such.
examination and upon such other examination as I have deemed necessary
or appropriate, I am of the opinion that:
1. The Lease has been duly authorized, executed and delivered
by Lessee.
2. The Lessee is a duly created and presently existing political
subdivision of the State of Texas
3. The Lease is a legal, valid and binding obligation of Lessee,
enforceable in accordance with its terms. In the event that Lessor
obtains a judgement against Lessee in money damages, as a result of an
event of default under the Lease, Lessee shall be obligated to pay such
judgement.
180n F3Qa,r�
Counsel for Lessee (Please Print Name)
By o/Go-r►-i�-�*--
NOTE: Counsel for Lessee may either use Exhibit C format or -render same
opinion on its stationery and insert in place of Exhibit C.
Page 9 of 10
a J '
EXHIBIT D
RECEIPT CERTIFICATE
The undersigned Lessee under that certain Equipment Lease/Purchase
Agreement dated February 22 , 19 79 , negotiated for the purpose
of leasing Leased Equipment having an original value in the amount of
$ 100,657.00 ,.with First Municipal Leasing Corporation as Lessor,
hereby acknowledges receipt in good condition of all of the Leased
Equipment described in said Equipment Lease/Purchase Agreement this
day of , 19 , and hereby certifies that
First Municipal Leasing Corporation has fully and satisfactorily performed
all covenants and conditions to be performed by it under said Equipment
Lease/Purchase Agreement.
Further Lessee hereby confirms that it will commence payments .as
specified in Exhibit B with the first payment 'being due
19
CITY OF LUBBOCK
Lessee
By
Title Mayor
NOTE: This Receipt Certificate must be executed by the same party who
executed the referred to Equipment Lease/Purchase Agreement.
Page 10 of 10