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Ordinance No. 3,25411112 --6 ORDINANCE NO. 3254 AN ORDINANCE ACCEPTING THE BID OF HI -WAY EQUIPMENT CO. INC. FOR THE LEASE PURCHASE OF ONE HYDRAULIC EXCAVATOR: AUTHORIZING THE MAYOR AND THE CITY CLERK TO EXECUTE AND ATTEST TO A LEASE PURCHASE CONTRACT WITH HI -WAY EQUIPMENT CO., INC.; AND AUTHORIZING THE PAYMENT BY THE CITY OF BAYTOWN OF THE SUM OF SEVENTEEN THOUSAND ONE HUNDRED SIXTY EIGHT & NO /100 ($17,168.00) DOLLARS AS THE FIRST INSTALLMENT PAY - MENT. WHEREAS, the City Council of the City of Baytown did authorize the Purchasing Department for the City of Baytown to advertise for bids for the purchase of one hydraulic excavator to be received F.iday, October 30, 1981; and PIHEREAS, the City of Baytown is authorized to purchase equipment by means of a lease purchase agreement as provided by Texas Revised Ci,ril Statutes, art. 2368a.2; and WHEREAS, notice to bidders as to the time and place, when and where the contract would be let was published pursuant to the provisions of Section 74 of the Charter of the City of Baytown; and WHEREAS, all bids were opened and publicly read at City Hall at 9:00 a.m., Friday, October 30, 1981 as per published notice to bidders; NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN: Section 1: That the City Council of the City of Baytown hereby accepts the bid of Hi -Way Equipment Co. Inc., for the lease purchase of one hydraulic excavator for the lease purchase price of ONE HUNDRED FIVE THOUSAND FIVE HUNDRED EIGHTY THREE & 20/100 ($105,583.20) Dollars, and authorizes payment of Seventeen Thousand One Hundred Sixty Eight & No /100 ($17,168.00) Dollars as the first annual payment there upon. Section 2: The Mayor and City Clerk are hereby authori- zed to execute and attest to a lease purchase agreement with Hi -Way Equipment Co., Inc., for the purchase of one hydraulic excavator, a copy of which is attached as Exhibit "A ". 11112 --6a Section 3: This ordinance shall take effect immediately from and after its passage. INTRODUCED, READ and PASSED by the affirmative vote of the City Council on this 12th day of November , 1981. eill�ETT O. HUTT Mayor ATTEST: )0e --C' ILEEN P., JJALL, City Clerk APPROVED: ANDALL B. ST NG, City Attor y 11112 -6b THE STATE OF TEXAS 4 0 COUNTY OF HARRIS 0 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 HI -WAY EQUIPMENT CO., INC., hereinafter called "SELLER ", W I T N E S S E T H Z. SELLER has sold and delivered or will deliver to BUYER and BUYER has purchased from SELLER the following; described equipment or vehicles: 1 Gradall G -440 TM Hydraulic Excavator II. The consideration of the foregoing sale to be paid by BUYER to SELLER or to SELLER'S assignee is as follows, to- wit: 11112 -6c 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 December 1, 1982 1 /5th of such entire price together with interest on the entire unpaid balance of such price at the rate of 112 per cent (11.50 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 December 1, 1983 , 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 December 1, 1984 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 December 1, 1985 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 -2- 11112 -6d either make such payments on or before the I :Pt?cti�7_ d xtc>s stipulated or will so surrender up the equil)[nent 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. 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 --3- ry 11112 -6e times set forth in such bid. It is agreed that upon delivery of such equipment to CITY it will have a reasonable time to inspect the same and make such tests, if any, as are contemplated by the specifications, and based upon the results of such tests, to either accept or reject the same, depending upon whether the equipment meets the specificatons; provided, however, that for the assurance of an assignee to whom SELLER may assign the payments to be received by it CITY will, upon completion of its tests and inspection and the acceptance by it of any particular item or items of the equipment, execute an appropriate memorandum to the effect that it has received such item of equipment and has accept- ed the same as being in apparent compliance with the terms of this Agreement and with the specifications on which the same was brought but no such acceptance shall relieve SELLER of any of its obligations with respect to such equipment arising from the warranties or guaranties, express or implied, on which the same was sold. After acceptance by the CITY of such equipment, SELLER shall not be obligated (except to the extent contemplated by its warranties or guaranties or otherwise contemplated by the specifications on which the equipment was sold) to incur or pay any tax or charge or any any expense of any kind or character during the entire term hereof by reason of or in connection with said equipment. IV. Title to said equipment is retained by SELLER: but upon payment by the CITY of all of the amounts stipulated herein full and complete title thereto will vest in the CITY without the necessity of any further writing or act on the part of SELLER. It is a condition of this Agreement that SELLER 151M 11112 -6f shall gave the right to lake and resume tilc:reof in the event of failure of any of the folloWi.ng, 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 Il to -5- 111.12 -6g 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 equipmen., SELLEi, or SELLER'S assignee shall have thr, 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 -6- 11112 -6h remains unpaid after the initial payment ba od 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 _.ich 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 -7- 11112 -6i of any of the unpaid payments under this cc>>ztract kill b(- recognized by or be binding upon the C[TY 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 Barris 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 11112 -6j damage to the said equipment or to any 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: EILEEN P. HALL, City Clerk ATTEST: CITY OF BAYTOWN BY EMMETT O. HUTTO, Mayor SELLER By M 11112 -6k ASSIGNMEINT AND FILL OF SALE THE STATE OF TEXAS 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 11112 -F1 in said equipment or vehicles herein descriL - :1 -i, it understood, however, that till responsibliities and liabilities contemplated by the Assignor's warranties or g u:z.z a�ltie 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 assunied 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 time 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 -2- 11112 -6m Baytown the same was tree and dear of all liens and enr.umbrances and that Assignor has good right and lawful authority to sell and convey the same. EXECUTED THIS THE DAY OF 19 Assignor LIM ATTEST: ACCEPTED: Assignee ATTEST: THE STATE OF TEXAS 0 0 COUNTY OF HARRIS 0 BEFORE ME, the undersigned authority, on this day personally appeared a President of - -' 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 p p 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 F 19 NOTARY PUBLIC IN AND FOR HARRIS COUNTY, T E X A S -3- 11112 -6n THE STATE OF TEXAS 0 4 COUNTY OF HARRIS 0 BEFORE ICE, the unaersigned authority, on Chis day personally appeared ___ -- Vice President of --c - a banking Corporation, k10Wn to me to be the person wh se 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 F OFFICE, this the day of ' 1 NOTARY PUBLIC iN AND FOR HARRIS COUNTY, T E X A S -4-