Ordinance No. 3,0711 0 1 2 2- 4
ORD = N ANC E N O _ 3 0 7 1
AN ORI7I N ANCE ACCEPT I NG THE B I D OF H I -SVAY EQ7T I PIVI IF- N--T-
C__ CD _ I TTC _ FOR THE LEASE PURCHASE OF O1143 -:11 LTL = C
EXCAVATQR; AUTHORIZING THE MAL -NYOR AND THE CITY CLERK
TO
IF; XECTSTIF: AND AT'T`EST -P C> A LEASE PURCHASE CONTRACT
W T T H I-T I- WAY E QU I P M ENT (--C> I N C_; AND A U TH O R I Z I N G
THE r-3-
S W TE
TW E N T Y Y E T - S U M O
OU S AND N I NY F I V E F
AND
2C3 /ZOO $22,S95_20� DOLLARS AS THE FIRST INSTALLMEN'1'
PAYMFN'P _
WHEREAS the City Council c> :v tYse City of Ba.ytc�wri did
autlaori�e tlae Purcraasin�_-_ 3_7epartrrient for ttae City o::c Baytc->wn
t o a d v e r t i s e o r b i ci s f o r t h e p u r c h a s e <1:)-u o n e
excavator to lie received _Tanuary 20 1981 ; and
W H F R E A S t h e C i t y o f B a y t o wn- i s a u t h o r i z e d t o p u r c h a s e
equipment by rrieans o�:v a lease purchase agreerrient as provided
by Texas Revised (✓zV1_L Statues , art _ 23BSa _ 2 and
�1THEREAS notice to bidders as to the t irrse and pZ La- c:e ,
when and where the contract would be let was puI->lished pur-
suant to provisions C> :E Section 74 0_E the Claas-t.er C_> _E -L City
o::U Baytown arad
WHE R E A S, a l l b i d s w e r e o p e n e d a n d p u b l i c Z y r e a d a t
H a l l a t 9_ 3 0 a_ m_; 'T' -t-1 e s ci a y , J a n u a r y 2 O 1 9 S 1, a s p e r p u b -
fished notice to bidders NOSY 'THEREFORE ,
BE S T OR.DA S NED BY TI-IE C I TY COUNC I L. OF THE C I TY OF'
B AY T OW N
Section 1 T1aat the City CC�L1rx<-. of t12e City o_r
Baytowrz hereby accepts the bic3 of Hi -Way Fciuiprrient Co _ Irsc
or the lease purchase o_r ora8 hydraulic excavator for tla e
purchase price c_T One Hundred Fourteen TYio -LA saraci Four Huriclrect
S e v e n t y - S i x a.ri d N o / Z O O C$ Z 1 4, 4 -7 B_ 0 0 D o l l a r s, a n d a u t h o r i z e r
tyre payrrterrt of Twenty -Two Thousarid Eight Hixrxdreci 1,Tirzet7 -Five
acid 2C> /ILOO [ $22 , 89 O> Do -IL lars as the first arirrual payment
there capon _
Sectiora 2 = The 14Sayor arrd City CC! ILcrl-- are hereby
a u t h o r i z e d t o ex a c u t e a n ti a t t e s t t o a l e a s e p u r c h z_u e a g r e e-
rraent witla Iii -Way Equipment Co _ Inc _ for the purchase C-> 7F one
hydraulic excavator, a copy of which is atta.ci-red as Exhibit
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Section 3: This ordinance shall take effect immediately
from and after its passage.
INTRODUCE, READ, and PASSED by the affirmative vote of
City Council on this 22nd day of January > 19$1•
ATTEST:
E LEEN P. HALL, City Clerk
APPROVED:
RANDALL B.—STRONG, City ttorney
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EXHIBIT "A"
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THE STATE OF TEXAS
COUNTY OF HARRIS
THIS AGREEMENT made and entered into between the CITY
OF BAYTOWN, a municipal corporation, of Harris County,
Texas, hereinafter sometimes called "CITY" and sometimes
called "BUYER ", and
hereinafter called "SELLER ",
W I T N E S S E T H
I.
SELLER has sold and delivered or will deliver to BUYER
and BAYER has purchased from SELLER the following described
equipment or vehicles:
II.
The consideration of the foregoing sale to be paid by
BUYER to SELLER or to SELLER'S assignee is as follows, to-
wit.
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When the equipment is delivered to and accepted by the
City, 1 /5th of the entire price here above stated
(provided City shall have a reasonable time for voucher -
ing the payment and issuing warrant);
On or before , 1 /5th of
such entire price together with interest on the entire
unpaid balance of such price at the rate of
per cent ( %) per annum from the date all of the
equipment is accepted (as provided in numbered Section
III hereof) to the date of such payment;
On or before , 1 /5th of
such entire price together with interest at said rate
on said amount from the date the payment is made of
the second 1 /5th of the price as here above last
provided to the date of such payment;
On or before , 1 /5th
of such entire price together with - interest at said
rate on said amount from the date the payment is made
of the third 1 /5th of the price as here above last
provided to the date of such payment;
On or before the re-
maining 1 /5th of such entire price together with in-
terest at said rate on said amount from the date the
payment is made of the fourth 1 /5th of the price as
here above last provided to the date of such final
payment.
Provided nevertheless BUYER may at its option on or before
the stated date for each payment-above stipulated, and not
being in default in the making of any payment theretofore
becoming due, discharge its entire obligation under this
Agreement by surrendering and delivering to SELLER or to
SELLER'S assignee, as the case may be, all equipment
referred to in Section I in good operating order and condition,
reasonable wear and tear being excepted, by which delivery
all title thereto will pass out of CITY.
By the execution of this Agreement, BUYER represents to
SELLER that it has lawfully provided out of its current
funds and revenues for the year now current the amount
required to cover the initial payment stipulated above, but
makes known to SELLER that under provisions of the Charter
of the City of Baytown, the CITY does not have any provision
at this time for any of the further payments stipulated, but
can and by this instrument does obligate itself that it will
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either make such payments on or before the respective dates
sti- pulated or will so surrender up the equipment as above
provided.
In the event the CITY'S obligation under this Agreement
is discharged by its surrendering the equipment or if SELLER
becomes entitled to possession of such equipment or by
order of a court of competent jurisdiction, none of the
monies theretofore paid by CITY shall be refunded or recover-
able by it; but the parties agree for themselves and for
their respective assigns that the amount paid by the CITY
shall be the value to the CITY of the use and enjoyment by
it of the equipment during its possession.
If title certificates have been furnished the CITY in
connection with any of said equipment as contemplated by
numbered Section VI and CITY elects to surrender the equip-
ment instead of completing payment therefor, CITY further
obligates itself that at the time of such surrender, it will
also surrender the title certificates appropriately endorsed
to permit the handling thereof by SELLER or SELLER'S.assignee
and will render full cooperation and execute all appropriate
papers to assist SELLER or SELLER'S assignee in procuring
the issuance of title certificate and license receipt in
their name or as they may elect.
III.
It is made a part of this Agreement as if it were fully
set forth at length or attached hereto SELLER'S bid or bids
received by the City Council for the.furnishing to the City
of the equipment together with every specification and other
exhibit thereto attached or therein referred to. SELLER
represents that the items of equipment covered by this
Agreement will be delivered to the CITY within the respective
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shall have the right to take and resume possession thereof
in the event of failure of any of the following, which are
express conditions to the CITY'S right to continue in posses-
sion therof, to -wit:
(1) That the CITY will take the same care of said
equipment as a reasonably prudent person would take of his
own property;
(2) That the CITY will keep said equipment in
good repair and condition, subject only to such normal wear
and tear as may not be remedied by good repair and main-
tenance;
(3) That if any of said equipment is lost, taken
or destroyed, or rendered unfit for further use by extraordinary
wear and tear or by fire, theft, windstorm, public disaster,
act of God, or any other casualty or cause whatsoever, the
CITY will continue to pay for the equipment as provided for in
Section II of this Agreement; and
(4) That the equipment shall be used exclusively
in the service of the CITY, and CITY will not sell or dispose
of it.
PROVIDED CITY shall be entitled to thirty (30) days
within which to comply with any such condition after receipt
by it of written notice to it of non - compliance therewith,
and in any such event the CITY shall have the option within
such 30 -day period of paying off and discharging the entire
balance of the purchase price to the date of such payment,
whereupon title to the equipment will be deemed to have
vested.fully in the CITY.
V.
In the event of failure on the part of CITY on or
before any of the payment dates stipulated in Section 11 to
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either pay the amount therein stipulated or to surrender
possession and title to the equipment to SELLER or to SELLER'S
assignee, SELLER or its assignee shall have the right to
take and resume possession of said equipment, SELLER or
SELLER'S assignee shall have the further right of declaring
all of the unpaid balance of said purchase price due and
payable and shall have the further right of selling the said
equipment at public or private sale at any time thereafter,
with or without notice to BUYER, and SELLER or SELLER'S
assignee may become the purchaser thereof; provided that in
the event of any such default SELLER or SELLER'S assignee
shall look solely to the said equipment or to the proceeds
of the sale thereof for the enforcement of payment of any
balance hereunder, and said equipment and the proceeds of
any such sale thereof shall be full satisfaction of the
CITY'S obligations under this instrument.
VI.
To the end that the CITY may procure registration and
licenses in its name (for which it is necessary that the
CITY exhibit to the licensing authority a manufacturer's
certificate or a title certificate in its name pursuant to
the provisions of the Texas Motor Vehicle Title Law), SELLER
will cause to be delivered to the CITY a separate manufacturer's
certificate duly assigned to the CITY covering each item of
the foregoing equipment for which a title certificate is
required under such law, showing the City of Baytown as the
owner or last transferee or assignee of the vehicle, and
which may show a lien in favor of SELLER or SELLER'S assignee
to whom the deferred payments herein provided may have been
assigned by SELLER, which lien shall be shown in the amount
of the proportionate part of the stated purchase price which
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remains unpaid after the initial payment based upon the
schedule of payments provided in Section II of this Agreement.
Notwithstanding the delivery of such certificate, it is
expressly agreed that the CITY shall not be entitled to
require a release of the lien so indicated, except upon
paying the balance of the entire pruchase price of the
equipment. In every respect in which the respective rights
and obligations of the CITY, or SELLER or of SELLER'S assignee
as indicated or suggested by such certificate might appear
to be different than their respective rights or obligations
as stated in this instrument, the provisions of this instrument
shall control. The CITY further agrees in this connection
that in the event of any further assignment of the payments
to be made by it hereunder it will., upon appropriate request
but without cost to it, procure the reissuance of a title
certificate to evidence the transfer of lien to such further
assignee; provided that the original title certificate shall
come and remain into the possession of the CITY OF BAYTOWN
since it is unable to procure the issuance to it of tax
exempt license plates without having the original title
certificate in its possession.
VII.
The initial payment.and all subsequent payments herein
stipulated shall be made by the CITY to SELLER; provided if
SELLER has by executing the.form-of assignment attached
hereto, assigned all or any of such payments to another, the
CITY will make the payments so assigned to such named assignee.
All of the unpaid payments under this contract may at any
time from time to time be assigned or reassigned in whole
but not in part, by an assignment substantially to the
effect of the form of assigment appended hereto. No assignment
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of any of the unpaid payments under this contract will he
recognized by or be binding upon the CITY unless it be by a
written assignment, signed on behalf of the assignor and the
assignee, and an executed original thereof be delivered to
the City Manager of the City of Baytown.
VIII.
This Agreement may not be changed, varied or altered
except by instrument in writing duly executed on behalf of
CITY and by SELLER and also by SELLER'S assignee.
Failure on the part of SELLER or of SELLER'S assignee
to exercise any remedy given in the event of breach of
covenant or condition on the part of the CITY shall not
constitute a waiver of such breach nor impair the right of
SELLER or SELLER'S assignee to exercise such right or remedy
at any time thereafter while such breach or default continues;
provided the acceptance by SELLER or SELLER'S assignee of a
payment hereunder after the date it is due shall constitute
a waiver of delay in making of such payment.
IX.
Every obligation of or arising from this Agreement
shall be performable in Harris County, Texas.
X.
SELLER covenants and agrees that the CITY, making the
payments herein contemplated to be made by it and performing
all covenants and conditions on its part herein contained in
the manner and within the times herein provided, shall and
may peaceably and quietly have, hold and enjoy the possession
and use of the equipment herein referred to, and that SELLER
will defend CITY in the title and peaceable possession of
said equipment. The CITY covenants and agrees that it will
not until all payments herein contemplated to be made by it
have been made suffer, commit or permit any waste of or
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damage to the said equipment or to and thereof.
IN TESTIMONY OF WHICH, this instrument in duplicate
originals of equal force has been executed on behalf of
SELLER on the day of >
19
ATTEST:
EILEEti P. HALL, City Clerk
ATTEST:
CITY OF BAYTOWN
IN � M VM
• •
SELLER
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ASSIGNMENT AND BILL OF SALE
THE STATE OF TEXAS 0
0 KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF HARRIS 0
THAT
(the "Assignor "), for and in consideration of the sum of TEN
DOLLARS ($10.00) cash and other good and valuable consideration
to it in hand paid by
(the "Assignee "), receipt of which is hereby
acknowledged, has BARGAINED, SOLD, TRANSFERRED, ASSIGNED and
DELIVERED, and by these presents does BARGAIN, SELL, TRANSFER,
ASSIGN AND DELIVER unto Assignee all its right, title and
interest in and to a certain conditional contract of sale, a
copy of which is attached hereto identified as Exhibit "A ".,,
and all sums of money now due or to become due to the under-
signed by reason of said conditional contract of sale, the
same bearing date of execution by Assignor as Seller therein-
on the day of
19—, and date of
execution-by the City of Baytown, a municipal corporation-of
Harris County, Texas, as Buyer therein on the day of
, 19 , covering certain equipment or
vehicles which is described in said contract, reference to
which contract is here made for the description of said
equipment and vehicles as though the same were fully set
forth in this instrument.
And for the same consideration, the Assignor does also
BARGAIN, SELL, TRANSFER, ASSIGN and CONVEY unto Assignee,
its successors and assigns, all its right, title and interest
10122 -4m
in said equipment or vehicles herein described, it being
understood, however, that all responsibliities and liabilities
contemplated by the Assignor's warranties or guaranties as
to such equipment or vehicles were sold to the City of
Baytown shall be or remain against the Assignor, and such
warranties or guaranties are in nowise here assumed by
Assignee.
TO HAVE AND TO HOLD the above -- described conditional
contract of sale, all sums of money now due or to become due
thereon, and equipment or vehicles unto Assignee, its succes-
sors and assigns forever.
Assignor WARRANTS that at the tame of the execution
hereof it is the owner of the aforesaid conditional contract
of sale and all sums of money due or to become due thereon
and that the same is not subject to any claim, lien or
encumbrance, and further WARRANTS that said conditional
contract of sale is entitled only to the credit, payment and
offset of the payment due when twenty per cent (20 %) in
value of said equipment or vehicles is delivered to and
accepted by the City of Baytown, being the first payment set
forth in said conditional contract of sale and being in the
amount of
DOLLARS ($ ), and that the unpaid balance due
or to become due on said conditional contract of sale is
DOLLARS
), plus interest therein provided; and
Assignor further binds itself to forever WARRANT and DEFEND
the title to the said equipment and vehicles unto the said
City of Baytown and its assigns, and covenants that at the
date of said conditional contract of sale to the City of
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Baytown the same was free and clear of all liens and encumbrances
and that Assignor has good right and lawful authority to
sell and convey the same.
EXECUTED THIS THE DAY OF 19
ssignor
ATTEST:
ACCEPTED:
Assignee
By
ATTEST:
THE STATE OF TEXAS
COUNTY OF HARRIS
BEFORE 11E, the undersigned authority, on this day
personally appeared
President of a
corporation, known to me to be the person whose name is
subscribed to the foregoing instrument, and acknowledged to
me that he executed the same for the purposes and consideration
therein expressed, in the capacity therein set forth and as
the act and deed of said Corporation.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the
day of , 19
NOTARY PUBLIC IN AND FOR
HARRIS COUNTY, T E X A S
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THE STATE OF TEXAS 0
0
COUNTY OF HARRIS �
BEFORE ME, the undersigned authority, on this day
personally appeared '
Vice President of '
a banking Corporation, known to me to be the person whose
name is subscribed to the foregoing instrument, and acknowledged
to me that he executed the same for the purposes and consideration
therein expressed, and in the capacity therein set forth and
as the act and deed of said corporation.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the
day of , 19
NOTARY PUBLIC IN AND FOR
HARRIS COUNTY, T E X A S