Ordinance No. 4,59461125 -3
ORDINANCE NO. 4594
AN ORDINANCE ACCEPTING THE BID OF FIRST CONTINENTAL
LEASING CORPORATION FOR THE LEASE - PURCHASE OF EMERGENCY
MEDICAL SERVICE VEHICLES AND EQUIPMENT, STREET SWEEPER,
AND ELECTRONIC METER READING EQUIPMENT AT THE RATE OF
6.94% PER ANNUM FOR A PERIOD OF THREE YEARS AND
AUTHORIZING THE PAYMENT BY THE CITY OF BAYTOWN OF THE
SUM OF THREE HUNDRED THIRTY -THREE THOUSAND ONE HUNDRED
SEVENTY -SIX AND 40/100 ($333,176.40) DOLLARS.
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 lease - purchase of emergency medical
service vehicles and equipment, street sweeper, and electronic
meter reading equipment at the rate of 6.94% per annum for a
period of three years to be received November 20, 1986; 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 2:00 p.m., Thursday, November 20, 1986, as per published
notice to bidders; NOW THEREFORE,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS:
Section 1: That the City Council of the City of Baytown
hereby accepts the bid of First Continental Leasing Corporation
for the lease- purchase of emergency medical service vehicles and
equipment, street sweeper, and electronic meter reading equipment
at the rate of 6.94% per annum for a period of three years for
the sum of THREE HUNDRED THIRTY -THREE THOUSAND ONE HUNDRED
SEVENTY -SIX AND 40/100 ($333,176,40) DOLLARS, and authorizes
payment thereof.
Section 2: That the Mayor and City Clerk are hereby
authorized to execute and attest the lease- purchase agreement and
escrow agreement with First Continental Leasing Corporation, a
copy of which is attached hereto and identified as Exhibit "A"
and made a part hereof by reference for all purposes.
Section 3: This ordinance shall take effect immediately
from and after its passage by the City Council of the City of
Baytown.
61125 -3a
INTRODUCED, READ, and PASSED by the affirmative vote of the
City Council of the City of Baytown, this the 25th day of
November, 1986.
ATTEST:
EILEEN P. HALL, City Clerk
RANDALL B. STRONG, Attorney
Date of Lease. November 21, 1986 Lease No.
EQUIPMENT LEASE- PURCHASE AGREEMENT
Lessor: FIRST CONTINENTAL LEASING CORPORATION
Address: 2301 Cedar 5 rin s Suite 300 Dallas Texas 75201
Lessee: THE CITY OF BAYTOWN
Address: P.O. Box 424 Ba town Texas 77522
Lessor agrees to lease to Lessee and Lessee agrees to lease from Lessor, the items of
Equipment (the "Equipment ") described in Exhibit A attached to this Equipment Lease -
Purchase Agreement (the "Lease "), upon the following terms and conditions:
I. Certain Defined Terms. In addition to the terms defined elsewhere in this Lease,
the following terms have the meanings given below unless the context clearly requires
otherwise;
"Authorized Officer," when used with respect to Lessee, means the Mayor or any
other officer of Lessee who is designated in writing by the Lessee as an Authorized Officer for
purposes of this Agreement. The term "Authorized Officer," when used with respect to the
Lessor, means the President, any Vice President, 5ecretary, Assistant Secretary or Treasurer
of Lessor or any other officer of Lessor who is designated in writing by the Board of Directors
of Lessor as an Authorized Officer for purposes of this Agreement.
"Contractor" means one or more manufacturers or vendors from whom Lessor shall
purchase the Equipment, and their successors.
"Equipment Costs" means all costs of payment of, or reimbursement for,
acquisition and installation of the Equipment.
"Escrow Agreement" means that certain Escrow Agreement Relating to Equipment
by and among Lessor, Lessee, and First Interstate Bank of Oregon, N.A. (Escrow Agent), dated
as of November 21, 1986.
2. Lease of Equipment. Lessor hereby demises, leases and lets to Lessee, and Lessee
rents, leases and hires from Lessor, the Equipment in accordance with the provisions of this
Agreement, to have and to hold for the Lease Term, as hereinafter defined. Upon and during
installation of the Equipment, all leasehold rights granted to Lessee by Lessor under this
Agreement shall vest in Lessee, without any further action on the part of Lessor.
3. Purchase A reements Ac uisition of E ui ment. Lessor hereby irrevocably
appoints Lessee as its agent in connection with the acquisition and installation of the
Equipment in accordance with such plans and specifications and other purchase agreements as
shall be approved or entered into by Lessee (the "Purchase Agreement "). Lessee represents
that it is Lessee's good faith intention to enter into Purchase Agreements for the acquisition
or installation of the Equipment and that Lessee shall use its best efforts to do so;
notwithstanding the foregoing representation, Lessee represents, warrants and covenants that
in no event shall Lessee fail to enter into one or more Purchase Agreements totalling at least
$100,000.00 in value within six months from the date of this Lease. Further, Lessee
represents, warrants and covenants that it shall, after entering into such Purchase
Agreements, proceed with due diligence to complete the acquisition and installation of the
Equipment and that it shall have completed the acquisition and installation of all of the
Equipment to be obtained pursuant to this Lease by no later than June 30, 1988. Lessee will
pay directly to one or more Contractors prior to each request for disbursement by the Escrow
Agent, any amounts by which the remaining costs of the Purchase Agreements exceeds the
balance of funds on deposit with the Escrow Agent.
4. Acceptance. Prior to disbursements under the Escrow Agreement by Escrow
Agent, either directly to one or more Contractors or in reimbursement of advance payments
by Lessee, for all or a portion of the property accepted by Lessee pursuant to this Lease and
the Purchase Agreements, Lessee shall furnish Lessor with a requisition requesting
disbursement in the form prescribed in the Escrow Agreement accompanied by an Acceptance
Certificate (herein so called) in the form attached hereto as Exhibit C for that portion of the
Equipment for which payment is being requested. Upon the delivery to Lessor of such
instruments, Lessee shall be conclusively presumed to have accepted that portion of the
Equipment and related services and labor represented by the requisition.
5. Term. The term of this lease will commence on the date Lessor deposits the sum
Of $300,000.00 (the "Proceeds ") with the Escrow Agent as provided in the Escrow Agreement,
and, unless earlier terminated as expressly provided for in this Lease, will continue untii the
Expiration Date set forth in Exhibit B attached hereto (hereinafter the "Lease Term "). Lessor
shall cause the deposit required by the Escrow Agreement to be made, pursuant to the terms
of and on such date as provided in the Escrow Agreement.
6. Rent. Lessee agrees to pay to Lessor or its assignee the Lease Payments (herein so
called), including the interest portion, equal to the amounts specified in Exhibit B. The Lease
Payments will be payable without notice or demand at the office of the Lessor (or such other
place as Lessor or its assignee may from time to time designate in writing), and will
commence on the first Lease Payment date as set forth in Exhibit B and thereafter on the
dates set forth in Exhibit 6. Any payments received later than ten (10) days from the due date
will bear interest at the highest lawful rate from the due date. Except as specifically provided
in Section 7 hereof, the Lease Payments will be absolute and unconditional in all events and
will not be subject to any set -off, defense, counterclaim, or recoupment for any reason
whatsoever.
Lessee reasonably believes that funds can be obtained sufficient to make all Lease
Payments during the Lease Term and hereby covenants that it will do all things lawfully within
its power to obtain, maintain and properly request and pursue funds from which the Lease
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 Lease Payments for the full Lease Term if funds are legally available therefor
and in that regard Lessee represents that the use of the Equipment is essential to its proper,
efficient and economic operation.
7. Nonappropriation of Funds. In the event no funds or insufficient funds are
appropriated and budgeted or are otherwise available by any means whatsoever in any fiscal
period for Lease Payments due under this Lease, then the Lessee will immediately notify the
Lessor or its assignee of such occurrence and this Lease shall terminate on the last day of the
fiscal period for which appropriations were received without penalty or expense to Lessee of
any kind whatsoever, except as to the portions of Lease Payments herein agreed upon for
which funds shall have been appropriated and budgeted or are otherwise available. 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 specifications and freight prepaid and insured to any location in the
continental United States designated by Lessor. Lessor will have all legal and equitable rights
and remedies to take possession of the Equipment.
Notwithstanding the foregoing, Lessee agrees (1) that it will not cancel this Lease
under the provisions of this Section if any funds are appropriated to it, or by it, for the
acquisition, retention or operation of the Equipment or other equipment performing functions
similar to the Equipment for the fiscal period in which such termination occurs or the next
succeeding fiscal period thereafter, and (ii) that it will not during the Lease Term give priority
in the application of funds to any other functionally similar equipment. This paragraph will
not be construed so as to permit Lessee to terminate this Lease in order to acquire any other
equipment or to allocate funds directly or indirectly to perform essentially the same
application for which the Equipment is intended.
S. Limitation on Warranties. Lessee acknowledges and agrees that the Equipment is
of a size, design, and capacity selected by Lessee, that Lessor is neither a manufacturer nor a
vendor of such equipment, and that LESSOR HAS NOT MADE, AND DOES NOT HEREBY
MAKE, ANY REPRESENTATION, WARRANTY, OR COVENANT, EXPRESS OR IMPLIED,
WITH RESPECT TO 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 AND 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 USE OR PERFORMANCE OF THE EQUIPMENT
AND THE MAINTENANCE THEREOF.
Lessor hereby assigns to Lessee during the Lease Term, so long as no Event of
Default has occured hereunder and is continuing, all manufacturer's warranties, if any,
expressed 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.
9. Authoritv and Authorization. Lessee represents, covenants and warrants, and as
requested by Lessor, will deliver an opinion of counsel addressed to Lessor to the effect that:
G) Lessee is a fully constituted political subdivision or agency of the State of the Equipment
Location; (ii) the execution, delivery and performance by the Lessee of this Lease have been
duly authorized by all necessary action on the part of the Lessee; and (iii) this Lease
constitutes a legal, valid and binding obligation of the Lessee enforceable in accordance with
its terms. Lessee agrees that W it will do or cause to be done all things necessary to preserve
and keep the Lease in full force and effect, (ii) it has complied with all bidding requirements
where necessary and by due notification presented this Lease for approval and adoption as a
valid obligation on its part, (iii) it has sufficient appropriations or other funds available to pay
all amounts due hereunder for the current fiscal period, and (iv) it has sufficient funds
available to pay directly all costs of preparing sites for the equipment.
10. Title. Upon acceptance of the Equipment by Lessee hereunder, title to the
Equipment will vest in Lessee; provided, however, that (i) in the event of termination of this
Lease by Lessee pursuant to Section 4 hereof; (ii) t•pon the occurrence of an Event of Default
2
hereunder, and as long as such Event of Default is continuing; or (iii) in the event that the
purchase option has not been exercised prior to the Expiration Date, title will immediately
vest in Lessor or its assignee.
11. Security Interest. In order to secure all of its obligations hereunder, Lessee hereby
G) grants to Lessor a first and prior security interest in any and all right, title and interest of
Lessee in the Equipment and in all additions, attachments, accessions, and substitutions
thereto, and on any proceeds therefrom, (ii) agrees that this Lease may be filed as a financing
statement evidencing such security interest, and (iii) agrees to execute and deliver all
financing statements, certificates of title and other instruments necessary or appropriate to
evidence such security interest.
12. Personal Property. The Equipment is and will remain personal property and will
not be deemed to be affixed to or a part of the real estate on which it may be situated,
notwithstanding that the Equipment or any part thereof may be or hereafter become in any
manner physically affixed or attached to real estate or any building thereon. If requested by
Lessor, Lessee will, at Lessee's expense, furnish a landlord or mortgagee waiver with respect
to the Equipment. In addition, upon execution of this Lease, Lessee shall furnish to Lessor a
certificate executed by an engineer or architect, said engineer or architect being approved by
Lessor and being not affiliated with any Contractor, certifying that any portion of the
Equipment which constitutes a building or structure is structurally relocatable and is and will
remain personal property.
13. Use. Repairs. Lessee will use the Equipment in a careful manner for the use
contemplated by the manufacturer for the Equipment and shall comply with all laws,
ordinances, insurance policies and regulations relating to, and will pay all costs, claims,
damages, fees and charges arising out of its possession, use or maintenance. Lessee, at its
expense, will keep the Equipment in good repair and furnish all parts, mechanisms and devices
required therefor. If the Equipment is such as is customarily covered by a maintenance
agreement, Lessee will furnish Lessor with a maintenance agreement with a party satisfactory
to Lessor.
14. Alterations. Lessee will not make any alterations, additions or improvements to
the Equipment without Lessor's prior written consent unless such alterations, additions or
improvements may be readily removed without damage to the Equipment.
15. Location; Inspection. The Equipment will not be removed from, or if the
Equipment consists of rolling stock, its permanent base will not be changed from, the
Equipment Location without Lessor's prior written consent which will not be unreasonably
withheld. Lessor will be entitled to enter upon the Equipment Location or elsewhere during
reasonable business hours to inspect the Equipment or observe its use and operation.
16. Liens and Taxes. Lessee shall keep the Equipment free and clear of all levies, liens
and encumbrances except those created under this Agreement. Lessee shall pay, when due, all
charges and taxes (local, state and federal) 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. If 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. If Lessor pays any charges or taxes for which Lessee is responsible or liable under this
Agreement, Lessee shall reimburse Lessor therefor.
17. Risk of Loss- Dama e 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 nor
defect therein nor unfitness or obsolescence thereof shall relieve Lessee of the obligation to
make Lease Payments or to perform any other obligation under this Lease. In the event of
damage to any item of Equipment, Lessee will immediately place the same in good repair with
the proceeds of any insurance recovery 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 will: either (a) replace the same with like equipment in good
repair; or (b) on the next Lease Payment date, pay Lessor: (i) all amounts then owed by Lessee
to Lessor under this Lease, including the Lease Payment due on such date; and (ii) an amount
equal to the applicable Concluding Payment set forth in Exhibit B. In the event that Lessee is
obligated to make such payment with respect to less than all of the Equipment, Lessor will
provide Lessee with the pro rata amount of the Lease Payment and the Concluding Payment to
be made by Lessee with respect to the Equipment which has suffered the event of loss.
18. Insurance. Lessee will, 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, or, with Lessor's prior written consent, may self- insure against any or
all such risks. In no event will the insurance limits be less than the amount of the then
applicable Concluding Payment with respect to such Equipment. Each insurance policy will
name Lessee as an insured and Lessor or its assigns as an additional insured and loss payee, and
will contain a clause requiring the insurer to give Lessor at least thirty (30} days prior written
notice of any alteration in the terms of such policy or the cancellation thereof. The proceeds
of any such policies will 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 will
deliver to Lessor a certificate evidencing such insurance. In the event that Lessee has been
permitted to self - insure, Lessee will furnish Lessor with a letter or certificate to such effect.
In the event of any loss, damage, injury or accident involving the Equipment, Lessee will
promptly provide Lessor with written notice thereof and make available to Lessor all
information and documentation relating thereto.
19. Indemnification. Lessee shall indemnify Lessor against, and hold Lessor harmless
from, any and all claims, actions, proceedings, expenses, damages or liabilities, including
attorney's fees and court costs, arising in connection with the Equipment, including, but not
limited to, its selection, purchase, delivery, possession, use, operation, rejection or return and
the recovery of claims under insurance policies thereon.
20. Purchase Option. Upon thirty (30) days prior written notice from Lessee to Lessor,
and provided that there is no Event of Default, or an event which with notice or lapse of time,
or both, could become an Event of Default, then existing, Lessee will have the right to
purchase the Equipment on the Lease Payment dates set forth in Exhibit B by paying to Lessor,
on such date, the Lease Payment then due together with the Concluding Payment amount set
forth opposite such date. Upon satisfaction by Lessee of such purchase conditions, Lessor will
transfer any and all of its right, title and interest in the Equipment to Lessee as is, without
warranty, express or implied, except that Lessor will warrant to Lessee that the Equipment is
free and clear of any liens created by Lessor.
21. Assignment. Without Lessor's prior written consent, Lessee will not either
(i) assign, transfer, pledge, hypothecate, grant any security interest in or otherwise dispose of
this Lease or the Equipment or any interest in this Lease or the Equipment, or (ii) sublet or
lend the Equipment or permit it to be used by anyone other than Lessee or Lessee's employees.
Lessor may assign its rights, 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 a security interest
in this Lease and the Equipment, in whole or in part. Any such assignees shall have all of the
rights of Lessor under this Lease. No assignment or reassignment of any of Lessor's right, title
or interest in this Lease or the Equipment shall be effective unless and until Lessee shall have
received a duplicate original counterpart of the document by which the assignment or
reassignment is made, disclosing the name and address of each such assignee; provided,
however, that if such assignment is made to a bank or trust company as paying or escrow agent
for holders of certificates of participation in the Lease, it shall thereafter be sufficient that a
copy of the agency agreement shall have been deposited with Lessee until Lessee shall have
been advised that such agency agreement is no longer in effect. DURING THE LEASE TERM
LESSEE SHALL KEEP A COMPLETE AND ACCURATE RECORD OF ALL SUCH
ASSIGNMENTS IN FORM NECESSARY TO COMPLY WITH THE UNITED STATES INTERNAL
REVENUE CODE, SECTION 103(j), AND THE REGULATIONS, PROPOSED OR EXISTING,
FROM TIME TO TIME PROMULGATED THEREUNDER. Subject to the foregoing, this Lease
inures to the benefit of and is binding upon the heirs, executors, administrators, successors and
assigns of the parties hereto. No further action will be required by Lessor or by Lessee to
evidence the assignment, but Lessee will acknowledge such assignments in writing if so
requested.
22. Events of Default. The term "Event of Default ", as used herein, means the
occurrence of any one or more of the following events:
(a) Lessee fails to make any Lease Payment (or any other payment) as it
becomes due in accordance with the terms of this Lease, and any such failure continues for ten
(10) 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
twenty (20) days after written notice thereof by Lessor; or
(c) The discovery by Lessor that any statement, representation, or warranty
made by Lessee in this Lease or in any writing ever delivered by Lessee pursuant hereto or in
connection herewith is false, misleading, or erroneous in any material respect.
23. Remedies. Upon the occurrence of an Event of Default, and as long as such Event
of Default is continuing, 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 Lease Payments due during the Lease Term to be
immediately due and payable, whereupon the same shall become immediately due and payable;
(b) By written notice to the Lessee, request Lessee to (and Lessee agrees that it
will), at Lessee's expense, promptly return the Equipment to Lessor in the manner set forth in
Section 4 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;
(c) Sell or lease the Equipment or sublease it for the account of Lessee, holding
Lessee liable for all Lease Payments and other payments due to the effective date of such
selling, leasing or subleasing and 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 amounts payable by Lessee hereunder; and
Exercise other
under applicable laws ofthe stateof h e � r
Equipment orvany her applicable law or
proceed by appropriate court action to enforce the terms of this Lease or to recover damages
for the breach of this Lease or to rescind this Lease as to any or all of the Equipment.
In addition, Lessee will 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.
24. Notices. All notices to be given under this Lease shall be made in writing and
mailed by certified mail, return receipt requested, 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 days subsequent to mailing.
25. 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.
26. Governin Law. This Lease shall be construed in accordance with, and governed by
the laws of, the state of the Equipment Location.
27. Delivery of Related Documents. Lessee will execute or provide, as requested by
Lessor, such other documents and information as are reasonably necessary with respect to the
Transaction contemplated by this Lease. At the request of Lessor, Lessee will furnish Lessor
annual financial statements of Lessee withir forty -five days after the end of Lessee's fiscal
year.
28. Entire Agreement; Waiver. This Lease, together with the Acceptance Certificate
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. 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. 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
thereof.
29. Termination Due to Nondelivery or Nonacc.el Dtance of the E ui ment. If
Contractor fails to deliver or if Lessee fails to accept all or any portion of the Equipment by
June 30, 1988 the Lessee shall immediately pay Lessor or its assigns the Concluding Payment
Amount due as of the last Lease Payment Amount dated prior to June 30, 1988, plus accrued
but unpaid interest thereon, and this Lease shall terminate.
30. Failure of Contractor to Perform. Lessor shall have no liability or obligation to
Lessee for failure of the Contractor to perform in accord with the provisions of the Purchase
Agreement. Such failure to perform or any other breach by Contractor shall in no way modify
Lessee's obligation to pay the Lease Payments as set forth in Section b hereinabove.
31. Partial Prepayment. In the event the Escrow Agent, upon the completion of the
acquisition of the Equipment, makes a payment to the Lessor or its assigns pursuant to
Section 3.02(d) of the Escrow Agreement, Lessor agrees (i) to accept such payment as a
prepayment of a portion of the Lessee's principal obligations, 01) apply such payment on the
next Lease Payment date, or on the date of receipt if such date is a Lease Payment date, to
the remaining principal amounts due, and (iii) reduce the remaining Lease Payments, including
the applicable principal and interest portions, and Concluding Payment amounts shown on
Exhibit B. Such reduction shall be an amount equal to the product of multiplying a fraction
whose numerator is the amount paid by the Escrow Agent pursuant to Section 3.02(4) of the
Escrow Agreement and whose denominator is the Concluding Payment amount shown on
Exhibit B opposite the next Lease Payment date after Lessor receives the above amount from
the Escrow Agent, or the Concluding Payment amount shown on Exhibit B opposite the date of
receipt if such date is a Lease Payment date, times each remaining Lease Payment, the
principal portion thereof, the interest portion thereof, and each remaining Concluding
Payment amount, respectively. Lessor will provide Lessee with a revised Exhibit B reflecting
such reductions.
32. Tax- Exem t Interest. Lessee acknowledges and agrees that the Lease Payments
have been calculated by Lessor assuming that the interest portion of each Lease Payment is
exempt from Federal income Taxation. Lessee agrees that it will take no action or fail to
take any action which would cause the interest portion of any Lease Payment to become
subject to Federal Income Tax.
33. Additional Provisions. Any amendments to the standard language of this Lease will
be set forth !n Exhibit D attached hereto.
FIRST CONTINENTAL THE CITY OF BAYTOWN
LEASING CORPORATION
By:
By:
Title:
Title:
EXHIBIT A
THE CITY OF BAYTOWN
DESCRIPTION OF E [1IPMENT
Quantity Descri lion
— P Serial No.
Ambulances, Sweet Sweepers
EQUIPMENT LOCATION
220 Defee Street
Baytown, Texas
"To be completed upon Lessee's acceptance of Equipment
Lessee:
Fiscal Period:
Expiration Date:
EXHIBIT B
PAYMENT SCHEDULE
PAGE ONE OF ONE
The City of Baytown
October 1 - Se tember 30
Payment Payment
Interest
Number Date
Payment Portion
1 *
$ 9,254.90
2
9,254.90
3
9,254.90
4
9,254.90
5
9,254.90
6
9,254.90
7
9,254.90
8
9,254.90
9
9,254.90
10
9,254.90
11
9,254.90
12
9,254.90
13
9,254.90
14
9,254.90
I5
9,254.90
16
9,254.90
17
9,254.90
18
9,254.90
�9
9,254.90
20
9,254.90
21
9,254.90
22
9,254.90
23
9,254.90
24
9,254.90
25
9,254.90
26
9,254.90
27
9,254.90
28
9,254.90
29
9,254.90
30
9,254.90
31
9,254.90
32
9,254.90
33
9,254.90
34
9,254.90
35
9,254.90
36
9,254.90
Principal Concluding
Portion Payment
*To be completed upon Lessee's acceptance of the Equipment
EXHIBIT C
ACCEPTANCE CERTIFICATE
THE CITY OF BAYTOWN, as lessee under that certain LEASE- PURCHASE
AGREEMENT dated as of November 21, 1986 (the "Lease ") with FIRST CONTINENTAL
LEASING CORPORATION as lessor ( "Lessor "), hereby acknowledges receipt in good
condition of all of the property described on the attached Exhibit "A ", hereby accepts such
property and hereby certifies that the Lessor has fully and satisfactorily performed all
covenants and conditions to be performed by it under the Lease with regard to such
property, that such property is fully insured in accordance with Section 18 of the Lease and
that such property constitutes all or a portion of the Property as that term is defined in the
Lease.
DATE:
198
THE CITY OF BAYTOWN
B Y:
NAME:
ITS:
ESCROW AGREEMENT
RELATING TO EQUIPMENT
by and among
THE CITY OF BAYTOWN,
FIRST CONTINENTAL LEASING CORPORATION,
and
FIRST INTERSTATE BANK OF OREGON, N.A.
as the Escrow Agent
Dated as of November 21, 1986
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
Page
1.01 Definitions . . . . . . . . . . . . . . . . . . . . . . 2
(a) Lease Purchase Agreement . . . . . . . . . . . . . . . . 2
(b) Permitted Investments . . . . . . . . . . . . . . . . . . 2
(c) Principal Office . . . . . . . . . . . . . . . . . . . . 2
1.02 Rules of Construction . . . . . . . . . . . . . . . . . . . . 2
ARTICLE H
RECITALS AND REPRESENTATIONS
2.01
Lease Purchase Agreement . . . . . . . . . . . . . . . . . . 2
2.02
Deposit of Moneys . . . . . . . . . . . . . . . . . . . . . . 3
2.03
Lease Payments . . . . . . . . . . . . . . . . . . . . . . . 3
2.04
Conditions Precedent Satisfied . . . . . . . . . . . . . . . . . 3
ARTICLE III
ESTABLISHMENT AND ADMINISTRATION OF ESCROW FUNDS
3.01 Escrow Fund . . . . . . . . . . . . . . . . . . . . . . . . 3
3.02 Administration of the Escrow Fund . . . . . . . . . . . . . . . 3
3.03 Deposit and Investment of Moneys in Escow Funds . . . . . . . . 4
3.04 Complete Termination of Lease Purchase Agreement . . . . . . . 4
ARTICLE IV
COVENANTS; DEFAULT AND LIMITATION OF LIABILITY
4.01
District to Perform Lease Purchase Agreement . . . . . . . . . 4
4.02
FCLC to Perform Lease Purchase Agreement . . . . . . . . . . 5
4.03
No Obligation with Respect to Performance by Escrow Agent . . . 5
4.04
No Liability by Escrow Agent . . . . . . . . . . . . . . . . . 5
4.05
No Responsibility for Sufficiency . . . . . . . . . . . . . . . . 5
4.06
Indemnification to Escrow Agent . . . . . . . . . . . . . . . . 5
(i)
ARTICLE V
THE ESCROW AGENT
5.01
Appointment of Escrow Agent . . . . . . . . . . . . . . . . . 5
5.02
Acceptance of Employment . . . . . . . . . . . . . . . . . . 5
5.03
Escrow Agent; Duties; Removal and Resignation . . . . . . . . . 5
5.04
Compensation of the Escrow Agent . . . . . . . . . . . . . . . 6
5.05
Protection to the Escrow Agent . . . . . . . . . . . . . . . . 6
ARTICLE VI
AMENDMENT; DEFEASANCE; ADMINISTRATIVE PROVISIONS
6.01
Amendment . . . . . . . . . . . . . . . . . . . . . . . . . 7
6.02
Escrow Agent to Keep Records . . . . . . . . . . . . . . . . 7
6.03
Notices . . . . . . . . . . . . . . . . . . . . . . . . . . 8
6.04
Texas Law . . . . . . . . . . . . . . . . . . . . . . . . . 8
6.05
Severability . . . . . . . . . . . . . . . . . . . . . . . . . 8
6.06
Binding on Successors . . . . . . . . . . . . . . . . . . . . . 8
6.07
Headings . . . . . . . . . . . . . . . . . . . . . . . . . . 8
6.08
Execution in Counterparts . . . . . . . . . . . . . . . . . . . 8
{ii}
ESCROW AGREEMENT
RELATING TO EQUIPMENT
THIS ESCROW AGREEMENT RELATING TO EQUIPMENT made and entered into as
of November 21, 1986 (the "Agreement "), by and among THE CITY OF BAYTOWN (the
"City "), FIRST INTERSTATE BANK OF OREGON, N.A. (the "Escrow Agent "), and FIRST
CONTINENTAL LEASING CORPORATION, a corporation duly organized and existing
under the laws of the State of Texas ( "FCLC ");
WITNESSETH:
In consideration of the mutual agreements and covenants herein contained and for
other valuable consideration, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.01. Definitions. Terms defined in the Lease - Purchase Agreement and
capitalized herein shall, for purposes of this Agreement, have the meanings given them in
the Lease - Purchase Agreement unless the context requires otherwise. The terms defined
below shall have the meanings given to them.
(a) Lease - Purchase Agreement. The terra "Lease- Purchase Agreement" means
that certain Equipment Lease - Purchase Agreement between FCLC as lessor and the City
as lessee, dated as of November 21, 1986.
(b) Permitted Investments. The term "Permitted Investments" means, to the
extent permitted by applicable law:
M Bonds or interest - bearing notes or obligations of the United States,
or those for which the faith and credit of the United States are pledged for the
payment of principal and interest;
(ii) Bonds or interest - bearing notes or obligations that are guaranteed
as to principal and interest by a federal agency of the United States; and
(iii) Certificates of deposit issued by a nationally or state - chartered
bank or savings and loan association; provided, that the principal amount of
any such certificate of deposit in excess of the amount insured by the FDIC or
FSLIC shall be fully secured and collateralized by the pledge and deposit of
securities described in M and GO of this Subsection (b) with a market value or
par value, whichever is less, equal to such uninsured excess principal amount.
(c) Principal Office. The term "Principal Office", when used with respect to the
Escrow Agent, means the principal office of the Escrow Agent situated in Portland,
Oregon at which the Escrow Agent conducts its corporate trust business.
Section 1.02. Rules of Construction. Words of the masculine and feminine genders
shall be deemed and construed to include the neuter gender. Unless the context otherwise
indicates, the singular number shall include the plural number and vice versa, and words
importing persons shall include corporations and associations, including public bodies, as
well as natural persons.
The terms "hereby ", "hereof ", "hereto ", "herein ", hereunder" and any similar terms,
as used in this Agreement, refer to this Agreement.
ARTICLE II
RECITALS AND REPRESENTATION
Section 2.01. Lease - Purchase Agreement. FCLC and the City have entered into
an Equipment Lease - Purchase Agreement dated as of November 21, 1986 whereby
2
FCLC has agreed to lease and sell certain Equipment to the City and the City has agreed
to lease and purchase said Equipment from FCLC. Under the terms of the Lease -
Purchase Agreement, FCLC and the City agree that the City shall provide for the
acquisition and installation of the Equipment.
Section 2.02. Deposit of Moneys. Under the Lease- Purchase Agreement, in order
to induce the Contractor to construct and install the Equipment and to assure the City
that the Equipment Costs will be paid without delay and that the Equipment will be
available for purchase and lease without delay, FCLC is required to deposit, or cause to
be deposited on its behalf, with the Escrow Agent, the sum of $300,000.00.
Section 2.03. Lease Payments. Under the Lease - Purchase Agreement, the City is
obligated to pay to FCLC or its assigns Lease Payments for the purchase and lease of the
Equipment.
Section 2.04. Conditions Precedent Satisfied. All acts, conditions and things
required by law to exist, happen and be performed precedent to and in connection with the
execution and entering into of this Agreement have happened and have been performed in
regular and due time, form and manner as required by law, and the parties hereto are now
duly empowered to execute and enter into this Agreement.
ARTICLE III
ESTABLISHMENT AND ADMINISTRATION OF ESCROW FUND
Section 3.01. Escrow Fund. There is hereby established with the Escrow Agent a
special trust fund to be designated the "The City of Baytown Acquisition Fund" referred
to herein as the "Escrow Fund ". The Escrow Agent shall keep the Escrow Fund sepatate
and apart from all other funds and moneys held by it. On the date of execution of a
closing memorandum (the "Closing Memorandum ") concerning the Lease - Purchase
Agreement by the City and FCLC (hereinafter referred to as the "Closing Date "), the
Escrow Agent agrees to receive and deposit in the Escrow Fund the sum of $300,000.00.
Section 3.02. Administration of the Escrow Fund.
(a) The Escrow Agent shall administer the Escrow Fund as provided in this
Section 3.02.
(b) Amounts in the Escrow Fund shall be disbursed for Equipment Costs.
(c) Disbursements from the Escrow Fund shall be made by the Escrow Agent upon
receipt of a Requisition Requesting Disbursement in form attached hereto as Exhibit A,
executed by an authorized officer of the City.
So long as the Escrow Agent relies in good faith upon the requisition provided for
above, it shall have no liability on account of disbursements from the Escrow Fund,
(d) After completion of the acquisition of the Equipment, the City shall deliver to
the Escrow Agent the certificate of an Authorized Officer of the City setting forth the
Acceptance Date and the amount of money, if any, required for the payment of the
remaining Equipment Costs. Upon receipt by the Escrow Agent of the
3
certificate of an Authorized Officer of the City stating that all Equipment Costs have
been paid and that no claim or claims against the City out of which a claim based on
furnishing labor or materials exists or might ripen, the Escrow Agent shall pay any
amounts remaining in the Escrow Fund to FCLC or its assigns on behalf of the City to be
applied to prepay a portion of the City's principal obligations under the Lease - Purchase
Agreement pursuant to Section 31 of the Lease - Purchase Agreement and the Escrow Fund
shall be closed.
(e) No amounts shall be withdrawn or transferred from or paid out of the Escrow
Fund except as in this Article III provided.
Section 3.03. Deposit and Investment of Moneys in Escrow Fund.
(a) All moneys held by the Escrow Agent in the Escrow Fund established pursuant
to this Agreement, shall be deposited or invested in Permitted Investments, pursuant to
instructions of the City. The City covenants that the proceeds deposited in the Escrow
Fund will be used as soon as practicable for the purposes for which the funds were
deposited; such proceeds will not be invested in any Permitted Investments except for a
temporary period pending such use; and such proceeds will not be used directly or
indirectly so as to cause the Lease - Purchase Agreement to be or become "arbitrage
bonds" within the meaning of the Internal Revenue Code of 1954, as amended, or any
published regulations or rulings prescribed or made pursuant thereto. The City agrees to
make any rebates required by Section 148 (f) of the internal Revenue Code of 1986.
(b) All interest or income on the Escrow Fund shall belong to Lessee and shall be
paid to and deposited in the "The City of Baytown Operating Fund ", the general operating
fund of the City as earned but in no event less often than on an annual basis, and shall not
be part of the Escrow Fund.
(c) The Escrow Agent shall act only as agent in making or disposing of any
investment. The Escrow Agent shall not be liable for any loss resulting from the making
or disposition of any investment pursuant to the provisions of Section 3.03(a), and any such
losses shall be charged to the account with respect to which such investment was made.
Section 3.04. Termination Due to Nondelivery or Nonacceptance of the
Equipment. Pursuant to Section 29 of the Lease - Purchase Agreement, if Contractor fails
to deliver or if City fails to accept all or any portion of the Equipment by June 30, 1988,
all funds then remaining in the Escrow Fund shall be paid by the Escrow Agent to the
City. The City agrees to use such funds and any additional funds necessary to
immediately pay FCLC or its assigns the Concluding Payment due, pursuant to Section 29
of the Lease - Purchase Agreement as of June 30, 1988.
ARTICLE IV
COVENANTS, DEFAULT AND LIMITATION OF LIABILITY
Section 4.01. The City to Perform Lease - Purchase Agreement. The City
covenants and agrees with FCLC and any assignee of FCLC to perform all obligations and
duties imposed on it under the Lease - Purchase Agreement, and to enforce such Lease -
Purchase Agreement against FCLC in accordance with its terms.
4
Section 4.02. FCLC to Perform Lease - Purchase Agreement. FCLC covenants and
agrees with any assignee of FCLC to perform all obligations and duties imposed on it
under the Lease - Purchase Agreement.
Section 4.03. No Obligation with Respect to Performance by Escrow Agent.
Neither the City nor FCLC shall have any obligation or liability to the Contractor, to any
assignee of Lessor, or to any other party with respect to the performance by the Escrow
Agent of any duty imposed upon it under this Agreement.
Section 4.04. No Liability by Escrow Agent. The Escrow Agent makes no
representations or warranties as to the title to the Equipment or as to the performance of
any obligations of FCLC or Lessee.
Section 4.05. No Responsibility for Sufficiency. The Escrow Agent shall not be
responsible for the sufficiency of the Lease - Purchase Agreement. The Escrow Agent shall
not be responsible or liable for any loss suffered in connection with any investment of
funds made by it under the terms of and in accordance with this Agreement.
Section 4.06. Indemnification to Escrow Agent. The City hereby agrees to
indemnify and save the Escrow Agent harmless against any liabilities which it may incur
in the exercise and performance of its powers and duties hereunder, and which are not due
to the Escrow Agent's negligence or default. Indemnification for any tort shall be limited
to the extent and in the amounts provided for by Texas law. No indemnification will be
made under this Section or elsewhere in this Agreement for willful misconduct,
negligence, or default under this Agreement by the Escrow Agent, its officers, agents,
employees, successors or assigns.
ARTICLE V
THE ESCROW AGENT
Section 5.01. Appointment of Escrow Agent. In consideration of the recitals
hereinabove set forth and for other valuable consideration, FCLC and the City, hereby
agree to appoint the Escrow Agent to receive, hold, invest and disburse the moneys to be
paid to it pursuant to the Lease - Purchase Agreement for credit to the fund established by
this Agreement, and to perform certain other functions, all as herein provided and subject
to the terms and conditions of this Agreement.
Section 5.02. Acceptance of Appointment. In consideration of the compensation
herein provided for, the Escrow Agent accepts the appointment above referred to the
terms and conditions of this Agreement.
Section 5.03. Escrow Agent; Duties, Removal and Resignation. By executing and
delivering this Agreement, the Escrow Agent accepts the duties and obligations of the
Escrow Agent provided in this Agreement, but only upon the terms and conditions set
forth in this Agreement, and agrees to perform such duties and obligations as an ordinarily
prudent trustee under a corporate mortgage.
FCLC and the City may by written agreement between themselves, or any assignee
of FCLC may by written request, remove the Escrow Agent initially a party to this
Agreement, and any successor thereto, and may appoint a successor Escrow Agent, but
any such successor shall be a bank or trust company having a combined capital (exclusive
of borrowed capital) and surplus of at least Twenty -five Million Dollars
5
($25,000,000.00) and subject to supervision or examination by federal or state authority.
If such bank or trust company publishes a report of condition at least annually, pursuant to
law or to the requirements of any supervising or examining authority above referred to,
then for the purposes of this Section the combined capital and surplus of such bank or
trust company shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published.
The Escrow Agent may at any time resign by giving thirty (30) day written notice to
FCLC, the City, and any assignee of FCLC. Upon receiving such notice of resignation,
the City shall promptly appoint a successor Escrow Agent by an instrument in writing;
provided, however, that in the event that the City does not appoint a successor Escrow
Agent within thirty (30) days following receipt of such notice of resignation, FCLC may
appoint a successor Escrow Agent, and in the event that FCLC does not appoint, within
thirty (30) days after expiration of the initial thirty (30) day period, such successor
Escrow Agent, the resigning Escrow Agent may petition the appropriate court having
jurisdiction to appoint a successor Escrow Agent. Any resignation or removal of the.
Escrow Agent and appointment of a successor Escrow Agent shall become effective upon
acceptance of appointment by the successor Escrow Agent.
Section 5.04. Compensation of the Escrow Agent_. FCLC stall pay Escrow Agent
its fee for its services rendered under this Agreement. The City shall be responsible for
paying any and all brokerage fees or commissions or similar expenses incurred in the
investment and reinvestment of the Escrow Fund and all other expenses incurred in
connection with this agreement.
Section 5.05. Protection to the Escrow Agent. The Escrow Agent shall be
protected in acting upon any notice, resolution, request, consent, order, certificate,
report, opinion, bond, or other paper or document believed by it to be genuine, and to have
been signed or presented by the proper party or parties. The Escrow Agent may consult
with counsel, who may or may not be of counsel to the City or FCLC, and the opinion or
advice of such counsel shall be full and complete authorization and protection in respect
of any action taken or suffered by it under this Agreement in good faith and in accordance
therewith.
Whenever the Escrow Agent shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering any action under this Agreement, such
matter (unless other evidence in respect thereof be therein specifically prescribed) may
be deemed to be conclusively proved and established by a certificate of an Authorized
Officer, and such certificate shall be full warrant for any action taken or suffered in good
faith under the provisions of this Agreement upon the faith thereof, but in its discretion
the Escrow Agent may in lieu thereof accept other evidence of such fact or matter or
may require such further or additional evidence as to it may seem reasonable.
Except as otherwise expressly provided in this Agreement, any request order, notice
or other direction required or permitted to be furnished pursuant to any provision thereof
by the City or FCLC shall be sufficiently executed if executed in the name of the City or
FCLC by an Authorized Officer.
The Escrow Agent either as principal or agent, may also engage in or be interested
in any financial or other transaction with the City or FCLC, and may act as depository,
trustee, or agent for any assignee of FCLC or other obligations of the City as freely as if
it were not Escrow Agent hereunder.
R
The recitals, statements and representations in this Agreement shall be taken and
construed as made on the part of the City, and not by the Escrow Agent and the Escrow
Agent does not assume, and shall not have, any responsibility or obligation for the
correctness of any thereof.
The Escrow Agent may execute any of the trusts or powers hereof and perform the
duties required of it hereunder by or through attorneys, agents, or receivers, and shall be
entitled to advice of counsel concerning all matters of trust and its duties hereunder, and
the Escrow Agent shall not be answerable for the default or misconduct of any such
attorney, agent or receiver selected by it with reasonable care. The Escrow Agent shall
not be answerable for the exercise of any discretion or power under this Agreement or for
anything whatever in connection with the funds and accounts established hereunder,
except only for its own willful misconduct, negligence, or default.
The permissive right of the Escrow Agent to do things enumerated herein shall not
be construed as a duty of the Escrow Agent, and the Escrow Agent shall be answerable
only for its own willful misconduct, negligence or default.
The Escrow Agent shall not be required to take notice or be deemed to have notice
of any default hereunder unless the Escrow Agent shall be specifically notified in writing
of such default by the City FCLC or the Assignee of FCLC. All notices or other
instruments required hereunder to be delivered to the Escrow Agent must, in order to be
effective, be delivered to the office of the Escrow Agent, and in the absence of such
notice so delivered, the Escrow Agent may conclusively assume there is no such default
except as aforesaid.
At any and all reasonable times the Escrow Agent, and its duly authorized agents,
attorneys, experts, engineers, accountants and representatives, shall have the right fully
to inspect any and all of the property herein conveyed, including all books, papers and
records of the City pertaining to the Equipment and to take such memoranda from and in
regard thereto as may be desired.
The Escrow Agent shall not be required to give any bond or surety in respect of the
execution of the said trusts and powers or otherwise in respect of the premises.
Before taking such action hereunder, the Escrow Agent may require that it be
furnished an indemnity bond satisfactory to it for the reimbursement to it of all expenses
to which it may be put and to protect it against all liability, except liability which is
adjudicated to have resulted from the negligence, willful misconduct or default of the
Escrow Agent, by reason of any action so taken by the Escrow Agent.
ARTICLE VI
AMENDMENT; DEFEASANCE; ADMINISTRATIVE PROVISIONS
Section 6.01. Amendment. This Agreement may be amended in writing by
agreement among all of the parties.
Section 6.02. Escrow Agent to _Keep Records. The Escrow Agent shall keep a
copy of this Agreement and books and records of all moneys received and disbursed under
this Agreement, which shall be available for inspection by the City, FCLC and any
assignee of FCLC at any time during regular business hours.
N
Section 6.03. Notices. All written notices to be given under this Agreement shall
be given by mail, first class postage prepaid, to the party entitled thereto at its address
set forth below, or at such address as the party may provide to the other parties in writing
from time to time.
If to the City: The City of Baytown
P.O. Box 424
Baytown, Texas 77522
If to FCLC: President
First Continental Leasing Corporation
2301 Cedar Springs,
Suite 300
Dallas, Texas 75201
If to the Escrow Agent: First Interstate Bank of Oregon, N.A.
1300 Southwest 5th Avenue
P.O. Box 2971
Portland, Oregon 97208
Section 6.04. Texas Law. This Agreement shall be construed and governed in
accordance with the laws of the State of Texas.
Section 6.05. Severabilit . Any provision of this Agreement found to be prohibited
by law shall be ineffective only to the extent of such prohibition, and shall not invalidate
the remainder of this Agreement.
Section 6.06. Binding on Successors. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective successors and assigns.
Section 6.07. Headings. Headings preceding the text of the several Articles and
Sections hereof, and the table of contents, are solely for convenience of reference and
shall not constitute a part of this Agreement or affect its meaning, construction or
effect.
Section 6.08. Execution in Counterparts. This Agreement may be executed in
several counterparts, each of which shall be deemed an original, and all of which shall
constitute but one and the same instrument.
8
IN WITNESS WHEREOF, the parties have executed and attested this Agreement by
their officers thereunto duly authorized as of the date and year first written above.
THE CITY OF BAYTOWN
ON
TITLE:
FIRST INTERSTATE BANK OF OREGON, N.A.
as Escrow Agent
M
TITLE:
FIRST CONTINENTAL LEASING CORPORATION
LIMA
TITLE:
9
EXHIBIT A
REQUISITION REQUESTING DISBURSEMENT
In accordance with the terms of that certain Equipment Lease - Purchase
Agreement (the "Lease ") dated as of November 21, 1986 between THE CITY OF
BAYTOWN ( "City ") and FIRST CONTINENTAL LEASING CORPORATION
( "FCLC ") and further in accordance with the terms of that certain Escrow
Agreement Relating to Equipment dated as of November 21, 1986 by and among
the City, FCLC and FIRST INTERSTATE. BANK OF OREGON, N.A. (the "Escrow
Agent "), the City hereby requests a disbursement from the Escrow Account for
certain Equipment Costs. The City hereby represents and warrants for all purposes
that:
1. The amount to be disbursed is $
2. Payment is to be made to
following address:
ATTN:
at the
3. The amount to be disbursed constitutes Equipment Costs pursuant to the
Lease, said amount is required to be disbursed pursuant to an acquisition
contract entered into therefor by or on behalf of the City, or was necessarily
or reasonably incurred, and said amount is not being paid in advance of time,
if any, fixed for any payment.
4. The work relating to such Equipment Costs has been completed or the
materials have been furnished for which disbursement is required.
5. No amount set forth in this Requisition was included in any Requisition
Requesting Disbursement previously filed with the Escrow Agent for which
payment was actually made by the Escrow Agent.
6. If the amount to be disbursed constitutes final payment for all or a portion of
the Equipment, there is attached hereto as Attachment I an original of the
Acceptance Certificate, executed by an Authorized Officer of the City, for
that Equipment for which payment is being requested,
7. Acquisition and installation of the applicable portion of the Equipment for
which payment is being requested has been completed in accordance with
plans and specifications approved by the City and in accordance with the
terms and conditions of the acquisition contract. Said applicable portion of
the Equipment is suitable and sufficient for the expected uses thereof, but
this statement is made without prejudice to any rights against third parties
which exist at the date hereof or which may subsequently come into being.
I
8. The City has made such investigation of such sources of information as are
deemed necessary, including pertinent records of the City, and is of the
opinion that the applicable portion of the Equipment has been fully paid for
and no claim or claims exist against the City or vendor of the Equipment out
of which a lien based on furnishing labor or material exists or might ripen.
However, there is excepted from the foregoing statement any claim or claims
arising out of which a lien exists or might ripen and which claim or claims the
City intends to contest, which claim or claims are described as follows:
(Describe claim or claims or indicate affirmatively that the City does not
intend to contest any such claims.)
9. Funds are on deposit in the Escrow Account sufficient to make payment of
the full amount which might in any event be payable in order to satisfy such
claim or claims contested by the City and described in this or any previous
Requisition.
10. If the amount to be disbursed constitutes a final payment for all or a portion
of the Equipment, there is attached hereto as Attachment I1 a copy of an
executed and filed UCC -1 form, certificate of title, title application,
manufacturers statement of origin or other appropriate financing statements
evidencing the security interest of FCLC or its assignee in that Equipment
for which payment is being requested.
THE CITY OF BAYTOWN
B Y:
NAME:
TITLE:
DATE:
AK
ATTACHMENT 'T"
Executed and Filed UCC -1 or Other Financing Statement