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Ordinance No. 3,40520610 -6 ORDINANCE NO. 3405 AN ORDINANCE ACCEPTING THE BID OF DAVIS TRUCK & EQUIP- MENT CO., INC., FOR THE LEASE PURCHASE OF ONE MECHANICAL STREET SWEEPER; AUTHORIZING THE MAYOR AND THE CITY CLERK TO EXECUTE AND ATTEST TO A LEASE PURCHASE CONTRACT WITH DAVIS TRUCK & EQUIPMENT CO., INC.; AND AUTHORIZING THE PAYMENT BY THE CITY OF BAYTOWN OF THE SUM OF THIRTY THOUSAND & N01100 ($30,000.00) DOLLARS AS THE FIRST PAYMENT THEREOF. 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 mechanical street sweeper to be received May 27, 1982; and WHEREAS, the City of Baytown is authorized to purchase equipment by means of a lease purchase agreement as provided by Texas Revised Civil Statutes, art. 2368x.2; and WHEREAS, notice to bidders as to the time and place, when and where the contract would be let was published pur- suant 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 9:30 a.m., Thursday, May 27, 1982, 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 Davis Truck & Equipment Co., Inc., for the lease purchase of one mechanical street sweeper for the lease purchase price of SIXTY NINE THOUSAND EIGHT HUNDRED SEVEN & 63/100 ($69,807.63) DOLLARS, and authorizes payment of Thirty Thousand & No /100 ($30,000.00) Dollars as the first payment thereupon. Section 2: The Mayor and City Clerk are hereby authorized to execute and attest to a lease purchase agreement with Davis Truck & Equipment Co., Inc., for the purchase of one 20610 -6a mechanical street sweeper, a copy of which is attached as Exhibit "A ". 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 the 10th day of 1982. ATTEST: v _ � 7 c" EILEEN P. HALL, City Clerk June , or Fl/ • /� • • APPROVED: RANDALL B. 9TRONG, City At ey -2- 20610 -6b 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 DAVIS TRUCK & EQUIPMENT COMPANY, INC., 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 BUYER has purchased from SELLER the following described equipment or vehicles: One (1) Mechanical Street Sweeper II. The consideration of the foregoing sale to be paid by BUYER to SELLER or to SELLER'S assignee is as follows, to- wit: When the equipment is delivered to and accepted by the City, $30,000.00 (provided City shall have a reasonable time for vouchering the payment and issuing warrant); On or before one year from first payment, the remaining $35,750.00 of such entire price together with interest at 11.350 on said amount from the date the payment is made of the lst part of the price as here above last provided to the date of such final payment. 20610 -6c 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 payment stipulated, but can and by this instrument does obligate itself that it will either make such payment on or before the respective date stipulated 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 the CITY shall be refunded or recoverable by it; but the parties agree for themselves and for their res- pective assigns that the amount paid by the CITY shall be the value to the CITY of the use and enjoyment by it of the equip- ment during its possession. If title certificates have been furnished the CITY in connection with any of said equipment as contemplated by num- bered Section VI and CITY elects to surrender the equipment -2- 2.0610 -6d instead of completing payment therefor, CITY further obligates itself that at the time of such surrender, it will also surren- der 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 ex- hibit thereto attached or therein referred to. SELLER repre- sents that the items of equipment covered by this Agreement will be delivered to the CITY within the respective 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 specifications; 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 memoran- dum to the effect that it has received such item of equipment and has accepted 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 -3- 20610 -6e 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" the specifications on which the equipment was sold) to incur or pay any tax or charge or any expense of any kind or charac- ter 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 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 possession there- of, to -wit: (1) That the CITY will tke 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 maintenance; (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. 2.0610 --6f PROVIDED CITY shall be entitled to thirty (30) days with- in 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 II to 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 -5- 20610 -6g 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 proportionate part of the stated purchase price which 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 purchase 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 it possession. 20610 -6h 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 assignement 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 assignment appended hereto. No assign- ment of any of the unpaid payments under this contract will be 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; proivded the acceptance by SELLER or SELLER'S assignee or 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. -7- 20610 -6i 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 peacable 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 damage to the said equipment or to any part thereof. IN TESTIMONY OF WHICH, this instrument in duplicate originals of equal force has been executed on behalf of SELLER on this the day of ATTEST: 1 {�/ .nD_. / EILEEN P. HALL, -City Clerk ATTEST: , 1982. CITY OF BAYTOWN B4MMETfTO.�HZITO-," )Mayor SELLER am 2.0610 -b j ASSIGNMENT AND BILL OF SALE THE STATE OF TEXAS (i KNOW ALL MEN BY THESE.-PRESENTS: COUNTY OF HARRIS 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 saine 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 20610 -6k 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 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- 20610 -61 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 Assignor By ATTEST: ACCEPTED: ssignee ATTEST: THE STATE OF TEXAS COUNTY OF HARRIS M BEFORE ME, 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 BAND AND SEAL OF OFFICE, this the day of , 19 NOTARY PUBLIC IN, AND FOR HARRIS COUNTY, T E X A S -3- 20610 --6m ` THE STATE OF TEXAS COUNTY OF HARRIS BEFORE ASE, 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 th.e day of , 19 NOTARY PUBLIC IN AND FOR HARRIS COUNTY, T E X A S WE