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HomeMy WebLinkAboutSUNTRUST LEASING CORP - 2001 e e /}-c}O'OI- I r..f11 Quint & Thimmig LLP 09/19/01 09/21/01 EQUIPMENT LEASE-PURCHASE AGREEMENT LEASE NUMBER 00964 This EQUIPMENT LEASE-PURCHASE AGREEMENT (the "Agreement"), dated September 24, 2001, is made and entered into by and between SUNTRUST LEASING CORPORATION, a Virginia corporation, as lessor (the "Lessor"), and the CITY OF SANTA ANA. a municipal corporation and' charter city, organized and existing under the laws of the State of California, as lessee (ULessee"). In consideration of the mutual covenants herein contained, the parties hereto agree as. follows: ARTICLE 1. DEFINITIONS AND EXHIBITS Section 1.1. Definitions, The following terms have the meanings specified below. "Agreement" means this Equipment Lease-Purchase Agreement and the Equipment Schedule hereto as Exhibit B. U Agreement Date" means the date first written above. "Business Day" means a day other than a Saturday, a Sunday or a day on which the New York Stock Exchange is closed or banks in the city in which Lessor or Lessee is located are authorized or obligated by law or executive order to close. "Code" means the Internal Revenue Code of 1986, as amended, together with Treasury Regulations promulgated from time to time thereunder. "Date Affected Information Technology" means a system comprised of one or more components including computer hardware, computer software or equipment with computerized functions, which reads, produces or processes date data by input, output or otherwise. "Disbursement Certificate" means each Disbursement Certificate delivered by Lessee as part of the delivery, installation and acceptance of the Equipment, substantially in the form attached hereto as Exhibit C. "Equipment" means all items of property described in the Equipment Schedule and subject to this Agreement. U Equipment Schedule" means the schedule attached hereto on Exhibit A. "Events of Default" means those events described in Section 12.1. "Fiscal Year" means each 12-month fiscal period of Lessee. e e "Fully Date Capable" means the ability to correctly process date data (including, but not limited to, reading, producing, calculating, comparing, and sequencing date data) from, into, and between the twentieth and twenty-first centuries) without material degradation in performance and without unusual intervention, including correct and continuous processing during the transition between 1999 and 2000, and correct processing if leap years. "Funding Date" means September 24, 2001. "Funding Amount" means $2,000,000.00. "Interest" means the portion of a Rental Payment designated as and comprising interest as provided in the Payment Schedule. "Lease Term" means the period during which this Agreement is in effect as specified in Section 3.1. "Net Proceeds" means any insurance proceeds or condemnation awards paid with respect to any Equipment remaining after payment therefrom of all expenses incurred in the collection thereof. "Non-Appropriation" means. the failure of Lessee, Lessee's governing body, or, if applicable, the governmental entity from which Lessee obtains its operating and/or capital funds to appropriate money for any Fiscal Year sufficient for the continued performance by Lessee of all of Lessee's obligations under this Agreement, as evidenced by the passage of an ordinance or resolution specifically prohibiting Lessee from performing its obligations under this Agreement with respect to any Equipment, and from using any moneys to pay any Rental Payments due under this Agreement for a designated Fiscal Year and all subsequent Fiscal Years. "Payment Date" means each date upon which a Rental Payment is due and payable as provided in the Payment Schedule. "Payment Schedule" means the schedule of Rental Payments attached hereto as Exhibit B. "Principal" means the portion of any Rental Payment designated as and comprising principal as provided in the Payment Schedule. "Prepayment Price" means the amount so designated and set forth opposite a Payment Date in the Payment Schedule indicating the amount for which Lessee may purchase the Equipment as of such Payment Date after making the Rental Payment due on such Payment Date. "Proceeds Account" means that certain account to be established by Lessee in the Local Agency Investment Fund of the State into which the Funding Amount shall be deposited on the Funding Date. "Rental Payment" means each payment due from Lessee to Lessor on a Payment Date. "Specifications" means the bid specifications and/or purchase order pursuant to which Lessee has ordered any Equipment from a Vendor. "State" means the state of California. -2- e e "Vendor" means each of the manufacturers or vendors from which Lessee has ordered or with which Lessee has contracted for the manufacture, delivery and/or installation of the Equipment. Section 1.2. Exhibits. Exhibit A: Exhibit B: Exhibit C: Equipment Schedule. Payment Schedule. Disbursement Certificate. ARTICLE II. FUNDING; LEASE OF EQUIPMENT Section 2.1. Funding: Disbursement. (a) On the Funding Date, Lessor agrees to transfer the Funding Amount to Lessee for transfer no later than the close of business on the day following the Funding Date to the Proceeds Account and Lessee shall provide evidence of such transfer to Lessor. Moneys on deposit in the Proceeds Account shall be used solely for payment of the Equipment and for no other purpose. (b) At least five Business days before any withdrawal by Lessee from the Proceeds Account shall be made, Lessee shall file with Lessor a Disbursement Certificate stating: (A) the item number of such payment; (B) the name of the payee to whom each such payment is due, which may be Lessee in the case of reimbursement for costs theretofore paid by Lessee; (C) if such disbursement is for reimbursement to Lessee, evidence of prior payment; (D) the respective amounts to be paid; (E) the purpose for which each obligation to be paid was incurred; (F) that obligations in the stated amounts have been incurred by Lessee and are presently due and payable and that each item thereof is a proper charge against the Project Account and has not been previously paid therefrom; (G) that there has not been filed with or served upon Lessee notice of any lien, right to lien or attachment upon, or claim affecting the right to receive payment of, any of the amounts payable to any of the persons named in such requisition, which has not been released or will not be released simultaneously with the payment of such obligation, other than materialmen's or mechanics' liens accruing by mere operation of law; (H) that the Equipment component for which such payment relates has been received and is satisfactory to Lessee, and (1) that the balance remaining in the Proceeds Account after payment of such amounts, together with any investment income reasonably anticipated to be deposited in the Proceeds Account and any other funds reasonably anticipated to be available therefor, will be sufficient to pay the costs of the Equipment. Upon receipt of each such document, Lessor shall provide its approval of such payment by countersigning such document and transmitting it back to Lessee. Section 2.2. Lease: Possession and Use. Lessor hereby leases the Equipment to Lessee, and Lessee hereby leases the Equipment from Lessor, upon the terms and conditions set forth -3- e e herein. Lessee shall have quiet use and enjoyment of and peaceably have and hold the Equipment during the Lease Term, except as expressly set forth in this Agreement. ARTICLE III. TERM Section 3.1. Term. This Agreement shall be in effect from the Agreement Date until the earliest of (a) termination under Section 3.2 or (b) termination under Section 12.2. Section 3.2. Termination by Lessee. In the sole event of Non-Appropriation, this Agreement shall terminate, in whole, but not in part, as to all Equipment effective upon the last day of the Fiscal Year for which funds were appropriated, in the manner. and subject to the terms specified in this Article. Lessee may effect such termination by giving Lessor a written notice of termination and by paying to Lessor any Rental Payments and other amounts which are due and have not been paid at or before the end of its then current Fiscal Year. Lessee shall endeavor to give notice of such termination not less than ninety (90) days prior to the end of the Fiscal Year for which appropriations were made and shall notify Lessor of any anticipated termination. In the event of termination of this Agreement as provided in this Section, Lessee shall comply with the instructions received from Lessor in accordance with Section 12.3. Section 3.3. Effect of Termination. Upon termination of this Agreement as provided in Section 3.2, Lessee shall not be responsible for the payment of any additional Rental Payments coming due in succeeding Fiscal Years, but if Lessee has not complied with the instructions received from Lessor in accordance with Section 12.3, the termination shall nevertheless be effective, but Lessee shall be responsible for the payment of damages in an amount equal to the amount of the Rental Payments that would thereafter have come due if this Agreement had not been terminated and which are attributable to the number of days after which Lessee fails to comply with Lessor's instructions and for any other loss suffered by Lessor as a result of Lessee's failure to take such actions as required. Section 3.4. Non-substitution. If this Agreement is terminated by Lessee in accordance with Section 3.2, to the extent permitted by State law, Lessee agrees not to purchase, lease, rent, borrow, seek appropriations for, acquire or otherwise receive the benefits of any personal property to perform the same functions as, or functions taking the place of, those performed by any of the Equipment, and agrees not to permit such functions to be performed by its own employees or by any agency or entity affiliated with or hired by Lessee, for a period of one year following such termination; provided, however, these restrictions shall not be applicable in the event the Equipment shall be sold by Lessor and the amount received from such sale, less all costs of such sale, is sufficient to pay the then applicable Prepayment Price relating thereto as set forth in the Equipment Schedule; or to the extent the application of these restrictions is unlawful and would affect the validity of this Agreement. Section 3.5. Termination of Lease Term. The Lease Term will terminate upon the occurrence of the first of the following events: (a) the termination of this Agreement by Lessee in accordance with Section 3.2; (b) the payment of the Prepayment Price by Lessee pursuant to Article V; (c) an Event of Default by Lessee and Lessor's election to terminate such Lease pursuant to Article XII; or (d) the payment by Lessee of all Rental Payments and all other amounts authorized or required to be paid by Lessee pursuant to such Lease. -4- e tit ARTICLE IV. RENTAL PAYMENTS Section 4.1. Rental Payments. Lessee agrees to pay the Rental Payments due as specified in the Payment Schedule. A portion of each Rental Payment is paid as interest as specified in the Payment Schedule, and the first Rental Payment will include interest accruing from the Funding Date. All Rental Payments shall be paid to Lessor, or to such assignee(s) Lessor has assigned as stipulated in Article XI, at such places as Lessor or such assignee(s) may from time to time designate by written notice to Lessee. Lessee shall pay the Rental Payments with lawful money of the United States of America from moneys legally available therefor. Section 4.2. Current Expense. The obligations of Lessee, including its obligation to pay the Rental Payments due in any Fiscal Year of the Lease Term, shall constitute a current expense of Lessee for such Fiscal Year and shall not constitute an indebtedness of Lessee within the meaning of the Constitution and laws of the State. Nothing herein shall constitute a pledge by Lessee of any taxes or other moneys (other than moneys lawfully appropriated from time to time by or for the benefit of Lessee for this Agreement and the Net Proceeds of the Equipment) to the payment of any Rental Payment or other amount coming due hereunder. Section 4.3. Unconditional Rental Payments. Lessee's obligation to make Rental Payments shall be absolute and unconditional. Also, any other payments required hereunder shall be absolute and unconditional. Lessee shall make these payments when due and shall not withhold any of these payments pending final resolution of any disputes. Lessee shall not assert any right of set-off or counterclaim against its obligation to make these payments. Lessee's obligation to make Rental Payments or other payments shall not be abated through accident, unforeseen circumstances, failure of the Equipment to perform as desired, damage or destruction to the Equipment, loss of possession of the Equipment or obsolescence of the Equipment. Lessee shall be obligated to continue to make payments required of it by this Agreement if title to, or temporary use of, the Equipment or any part thereof shall be taken under exercise of the power of eminent domain. ARTICLE V. OPTION TO PREP A Y Section 5.1. Option to Prepay. Lessee shall have the option to prepay its obligations under any Lease in whole but not in part on any Payment Date for the then applicable Prepayment Price (which shall include a prepayment fee) as set forth in the Payment Schedule, provided there has been no Non-Appropriation or Event of Default. Section 5.2. Exercise of Option. Lessee shall give notice to Lessor of its intention to exercise its option not less than thirty (30) days prior to the Payment Date on which the option will be exercised and shall pay to Lessor not later than such Payment Date an amount equal to all Rental Payments and any other amounts then due or past due under this Agreement (including the Rental Payment due on the Payment Date on which the option shall be effective) and the applicable Prepayment Price set forth in the Payment Schedule. In the event that all such amounts are not received by Lessor on such Payment Date, such notice by Lessee of exercise of shall be void and this Agreement shall continue in full force and effect. Section 5.3. Release of Lessor's Interest. Upon receipt of the Prepayment Price in good funds this Agreement shall terminate and Lessee shall become entitled to the Equipment AS IS, WHERE IS, WITHOUT WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR FITNESS FOR THE USE CONTEMPLATED BY LESSEE, except that such Equipment shall not be subject to any lien or encumbrance created by or arising through Lessor. -5- e e ARTICLE VI. REPRESENTATIONS, WARRANTIES AND COVENANTS Section 6.1. Representations and Warranties of Lessee. Lessee represents and warrants as of the Agreement Date as follows: (a) Lessee is a state or political subdivision of the State within the meaning of Section 103(c) of the Code, duly organized and existing under the Constitution and laws of the State, and is authorized under the Constitution and laws of the State to enter into this Agreement and the transactions contemplated hereby, and to perform all of its obligations under this Agreement. (b) The execution and delivery of this Agreement have been duly authorized by all necessary action of Lessee's governing body and such action is in compliance with all public bidding and other State and federal laws applicable to this Agreement and the acquisition and financing of the Equipment by Lessee. (c) This Agreement has been duly executed and delivered by and constitutes the valid and binding obligation of Lessee, enforceable against Lessee in accordance with its terms. (d) The execution, delivery and performance of this Agreement by Lessee shall not (i) violate any State or federal law or local law or ordinance, or any order, writ, injunction, decree, or regulation of any court or other governmental agency or body applicable to Lessee, or (ii) conflict with or result in the breach or violation of any term or provision of, or constitute a default under, any note, bond, mortgage, indenture, agreement, deed of trust, lease or other obligation to which Lessee is bound. (e) There is no action, suit, proceeding, claim, inquiry or investigation, at law or in equity, before or by any court, regulatory agency, public board or body pending or, to the best of Lessee's knowledge, threatened against or affecting Lessee, challenging Lessee's authority to enter into this Agreement or any other action wherein an unfavorable ruling or finding would adversely affect the enforceability of this Agreement. (t) No lease, rental agreement, lease-purchase agreement, payment agreement or contract for purchase to which Lessee has been a party at any time during the past ten (10) years has been terminated by Lessee as a result of insufficient funds being appropriated in any Fiscal Year. No event has occurred which would constitute an event of default under any debt, revenue bond or obligation which Lessee has issued during the past ten (10) years. (g) Lessee or Lessee's governing body has appropriated and/or taken other lawful actions necessary to provide moneys sufficient to pay all Rental Payments during the current Fiscal Year, and such moneys will be applied in payment of all Rental Payments due and payable during such current Fiscal Year. (h) Lessee has an immediate need for, and expects to make immediate use of, the Equipment, which need is not temporary or expected to diminish during the Lease Term. Lessee presently intends to continue this Agreement for its entire Lease Term and to pay all Rental Payments relating thereto. (i) Lessee has undertaken reasonable efforts to determine whether all material Date Affected Information Technology used in its operations is Fully Date Capable, and, to the extent necessary, Lessee has initiated efforts to make Date Affected Information Technology Fully Date -6- e e Capable prior to the date that the failure to be Fully Date Capable would aversely affect the operation thereof. Section 6.2. Covenants of Lessee. Lessee agrees that so long as any Rental Payments or other amounts due under this Agreement remain unpaid: (a) Lessee shall not install~ use, operate or maintain the Equipment improperly, carelessly, in violation of any applicable law or regulation or in a manner contrary to that contemplated by this Agreement. Lessee shall obtain and maintain all permits and licenses necessary for the installation and operation of the Equipment. Lessee shall not, without the prior written consent of Lessor, affix or install any accessory equipment or device on any of the Equipment if such addition would change or impair the originally intended functions, value or use of such Equipment. (b) Lessee shall provide Lessor access at all reasonable times to examine and inspect the Equipment and provide Lessor with such access to the Equipment as may be reasonably necessary to perform maintenance on the Equipment in the event of failure by Lessee to perform its obligations hereunder. (c) Lessee shall not, directly or indirectly, create, incur, assume or suffer to exist any mortgage, pledge, lien, charge, encumbrance or other claim with respect to the Equipment, other than the respective rights of Lessor and Lessee as herein provided. Lessee shall promptly, at its own expense, take such actions as may be necessary duly to discharge or remove any such claim if the same shall arise at any time. Lessee shall reimburse Lessor for any expense incurred by Lessor in order to discharge or remove any such claim. (d) The person or entity in charge of preparing Lessee's budget will include in the budget request for each Fiscal Year the Rental Payments to become due during such Fiscal Year, and will use all reasonable and lawful means available to secure the appropriation of money for such Fiscal Year sufficient to pay all Rental Payments coming due therein. Lessor acknowledges that appropriation for Rental Payments is a governmental function which Lessee cannot contractually commit itself in advance to perform. Lessee acknowledges that this Agreement does not constitute such a commitment. However, Lessee reasonably believes that moneys in an amount sufficient to make all Rental Payments can and will lawfully be appropriated and made available to permit Lessee's continued utilization of the Equipment in the performance of its essential functions during the Lease Term. (e) Lessee shall assure that its obligation to pay Rental Payments is not directly or indirectly secured by any interest in property, other than the Equipment, and that the Rental Payments will not be directly or indirectly secured by or derived from any payments of any type or any fund other than Lessee's general purpose fund. (f) Upon Lessor's request, Lessee shall provide Lessor with current financial statements, budgets, and proof of appropriation for the ensuing Fiscal Year and such other financial information relating to the ability of Lessee to continue this Agreement as may be reasonably requested by Lessor. (g) Lessee shall promptly and duly execute and deliver to Lessor such further documents, instruments and assurances and take such further action as Lessor may from time to time reasonably request in order to carry out the intent and purpose of this Agreement and to establish and protect the rights and remedies created or intended to be created in favor of Lessor hereunder. -7- e e (h) Lessee has initiated, at its sole expense, and shall maintain a program to: (i) advise Lessor in the event that it has reason to believe that any material Date Affected Information Technology will not be Fully Date Capable prior to the date that the failure to be Fully Date Capable would adversely affect the operation thereof, and (ii) advise Lessor in the event that Lessee has reason to believe that it will be adversely affected by the failure of any affiliated or nonaffiliated entity to have its Date Affected Information Technology Fully Date Capable. (i) Lessee shall provide Lessor, upon request, access to and copies of information necessary to permit Lessor to determine whether Lessee's Date Affected Information Technology is, or will be, Fully Data Capable, including, without limitation: (i) minutes, resolutions and reports to and from Lessee's governing body or committee thereof, (H) internally generated reports, consultant reports or auditor's report regarding the status of Lessee's Date Affected Information Technology, (Hi) all documents relating to a "Year 2000" program, and (iv) certificates or other statements requested by Lessor regarding status of Date Affected Information Technology. Lessee acknowledges that Lessor's right to receive, and/or Lessor's receipt of, the foregoing information does not impose any obligation on Lessor to assess the accuracy or effect of such information, or to recommend or require remedial action of any kind. Section 6.3. Tax Related Representations. Warranties and Covenants. If Lessor either (i) receives notice, in any form, from the Internal Revenue Service or (ii) reasonably determines, based on an opinion of independent tax counsel selected by Lessor, that Lessor may not exclude any Interest paid under any Lease from its Federal gross income (each an "Event of Taxability"), Lessee shall pay to Lessor upon demand (x) an amount which, with respect to Rental Payments previously paid and taking into account all penalties, fines, interest and additions to tax (including all federal, state and local taxes imposed on the interest due through the date of such event), will restore to Lessor its after-tax yield (assuming tax at the highest marginal tax rate and taking into account the time of receipt of Rental Payments and reinvestment at the after-tax yield rate) on the transaction evidenced by such Lease through the date of such event and (y) as additional Rental Payments to Lessor on each succeeding Payment Date such amount as will maintain such aft,er-tax yield to Lessor. ARTICLE VII. INSURANCE AND RISK OF LOSS Section 7.1. Liability and Property Insurance. Lessee shall, at its own expense, procure and maintain continuously in effect during each Lease Term: (a) public liability insurance for death or injuries to persons, or damage to property arising out of or in any way connected to the Equipment sufficient to protect Lessor and/or assigns from liability in all events, with a coverage of not less than $1,000,000 per occurrence unless specified differently in the related Equipment Schedule, and (b) insurance against such hazards as Lessor may require, including, but not limited to, all-risk casualty and property insurance, in an amount equal to the greater of the full replacement cost of the Equipment or the applicable Prepayment Price. Section 7.2. Workers' Compensation Insurance. If required by State law, Lessee shall carry workers' compensation insurance covering all employees on, in, near or about the Equipment, and upon request, shall furnish to Lessor certificates evidencing such coverage throughout the Lease Term. -8- e e Section 7.3. Insurance Requirements. (a) Insurance Policies. All insurance policies required by this Article shall be taken out and maintained with insurance companies acceptable to Lessor and shall contain a provision that thirty (30) days prior to any change in the coverage the insurer must provide written notice to the insured parties. No insurance shall be subject to any co-insurance clause. Each insurance policy shall name Lessor and/or its assigns as an additional insured party and loss payee regardless of any breach of warranty or other act or omission of Lessee and shall include a lender's loss payable endorsement for the benefit of Lessor and/or is assigns. Prior to the delivery of Equipment, Lessee shall deposit with Lessor evidence satisfactory to Lessor of such insurance and, prior to the expiration thereof, shall provide Lessor evidence of all renewals or replacements thereof. (b) Self Insurance. With Lessor's prior consent, Lessee may self-insure the Equipment by means of an adequate insurance fund set aside and maintained for that purpose which must be fully described in a letter delivered to Lessor in form acceptable to Lessor. (c) Evidence of Insurance. Lessee shall deliver to Lessor upon acceptance of any Equipment evidence of insurance which complies with this Article VII with respect to such Equipment to the satisfaction of Lessor. Section 7.4. Risk of Loss. To the extent permitted by applicable laws of the State, as between Lessor and Lessee, Lessee assumes all risks and liabilities from any cause whatsoever, whether or not covered by insurance, for loss or damage to any Equipment and for injury to or death of any person or damage to any property. Whether or not covered by insurance, Lessee hereby assumes responsibility for and agrees to indemnify Lessor from all liabilities, obligations, losses, damages, penalties, claims, actions, costs and expenses, including reasonable attorneys' fees, imposed on, incurred by or asserted against Lessor that relate to or arise out of this Agreement, including but not limited to, (a) the selection, manufacture, purchase, acceptance or rejection of Equipment or the ownership of the Equipment, (b) the delivery, lease, possession, maintenance, use, condition, return or operation of the Equipment, (c) the condition of the Equipment sold or otherwise disposed of after possession by Lessee, (d) the conduct of Lessee, its officers, employees and agents, (e) a breach of Lessee of any of its covenants or obligations hereunder, (0 any claim, loss, cost or expense involving alleged damage to the environment relating to the Equipment, including, but not limited to investigation, removal, cleanup and remedial costs, and (g) any strict liability under the laws or judicial decisions of any state or the United States. This provision shall survive the termination of this Agreement. Section 7.5. Destruction of Equipment. Lessee shall provide a complete written report to Lessor immediately upon any loss, theft, damage or destruction of any Equipment and of any accident involving any Equipment. Lessor may inspect the Equipment at any time and from time to time during regular business hours. If all or any part of the Equipment is stolen, lost, destroyed or damaged beyond repair ("Damaged Equipment"), Lessee shall within thirty (30) days after such event either: (a) replace the same at Lessee's sole expense with equipment having substantially similar Specifications and of equal or greater value to the Damaged Equipment immediately prior to the time of the loss occurrence, such replacement equipment to be subject to Lessor's approval, whereupon such replacement equipment shall be substituted in the applicable Lease and the other related documents by appropriate endorsement or amendment; or (b) pay the applicable Prepayment Price of the Damaged Equipment determined as set forth in the related Equipment Schedule. Lessee shall notify Lessor of which course of action it will take within fifteen (15) days after the loss occurrence. If, within forty-five (45) days of the loss occurrence, (a) Lessee fails to notify Lessor; (b) Lessee and Lessor fail to execute an amendment to the applicable Equipment Schedule to delete the Damaged -9- e e Equipment and add the replacement equipment or (c) Lessee has failed to pay the applicable Prepayment Price, then Lessor may, at its sole discretion, declare the applicable Prepayment Price of the Damaged Equipment, to be immediately due and payable. The Net Proceeds of insurance with respect to the Damaged Equipment shall be made available by Lessor to be applied to discharge Lessee' obligation under this Section. ARTICLE VIII. OTHER OBLIGATIONS OF LESSEE Section 8.1. Maintenance of Equipment. Lessee shall notify Lessor in writing prior to moving the Equipment to another address and shall otherwise keep the Equipment at the address specified in the Equipment Schedule. Lessee shall, at its own expense, maintain the Equipment in proper working order and shall make all necessary repairs and replacements to keep the Equipment in such condition including compliance with State and federal laws. Any and all replacement parts must be free of encumbrances and liens. All such replacement parts and accessories shall be deemed to be incorporated immediately into and to constitute an . integral portion of the Equipment and as such, shall be subject to the terms of this Agreement. Section 8.2. Taxes. Lessee shall pay all taxes and other charges which are assessed or levied against the Equipment, the Rental Payments or any part thereof, or which become due during the Lease Term, whether assessed against Lessee or Lessor, except as expressly limited by this Section. Lessee shall pay all utilities and other charges incurred in the operation, maintenance, use, occupancy and upkeep of the Equipment, and all special assessments and charges lawfully made by any governmental body that may be secured by a lien on the Equipment. Lessee shall not be required to pay any federal, state or local income, succession, transfer, franchise, profit, excess profit, capital stock, gross receipts, corporate, or other similar tax payable by Lessor, its successors or assigns, unless such tax is made as a substitute for any tax, assessment or charge which is the obligation of Lessee under this Section. Section 8.3. Advances. If Lessee shall fail to perform any of its obligations under this Article, Lessor may take such action to cure such failure, including the advancement of money, and Lessee shall be obligated to repay all such advances on demand, with interest at the rate of 18% per annum or the maximum rate permitted by law, whichever is less, from the date of the advance to the date of repayment. ARTICLE IX. TITLE Section 9.1. Title. During the Lease Term, ownership and legal title of all Equipment and all replacements, substitutions, repairs and modification shall be in Lessee and Lessee shall take all action necessary to vest such ownership and title in Lessee. Lessor does not own the Equipment and by this Agreement and each Lease is merely financing the acquisition of such equipment for Lessee. Lessor has not been in the chain of title of the Equipment, does not operate, control or have possession of the Equipment and has no control over Lessee or Lessee's operation, use, storage or maintenance of the Equipment. Section 9.2. Security Interest. Lessee hereby grants to Lessor a continuing, first priority security interest in and to the Equipment, all repairs, replacements, substitutions and modifications thereto and all proceeds thereof and in the Proceeds Account (if any) in order to secure Lessee's payment of all Rental Payments and the performance of all other obligations. Lessee will join with Lessor in executing such financing statements or other documents and will perform such acts as Lessor may request to establish and maintain Lessor's valid first lien and perfected security interest. If requested by Lessor, Lessee shall obtain a landlord and/or -10- e e mortgagee's consent and waiver with respect to the Equipment. If requested by Lessor, Lessee shall conspicuously mark the Equipment, and maintain such markings during the Lease Term, to clearly disclose Lessor's security interest in the Equipment. Upon termination of a Lease through exercise of Lessee's option to prepay pursuant to Article V or through payment by Lessee of all Rental Payments and other amounts due, Lessor's security interest in such Equipment shall terminate, and Lessor shall execute and deliver to Lessee such documents as Lessee may reasonably request to evidence the termination of Lessor's security interest in such Equipment. Section 9.3. Modification of Equipment. Lessee will not, without the prior written consent of Lessor, affix or install any accessory equipment or device on any of the Equipment if such addition will change or impair the originally intended value, function or use of the Equipment. Section 9.4. Personal Property. The Equipment is and shall at all times be and remain personal property and not fixtures. ARTICLE X. WARRANTIES Section 10.1. Selection of Equipment. Each Vendor and all of the Equipment have been selected by Lessee. Lessor shall have no responsibility in connection with the selection of the Equipment, the ordering of the Equipment, its suitability for the use intended by Lessee, the acceptance by any Vendor or its sales representative of any order submitted, or any delay or failure by such Vendor or its sales representative to manufacture, deliver or install any Equipment for use by Lessee. Section 10.2. Vendor's Warranties. Lessor hereby assigns to Lessee for and during the related Lease Term, all of its interest, if any, in all Vendor's warranties, guarantees and patent indemnity protection, express or implied issued on or applicable to the Equipment, and Lessee may obtain the customary services furnished in connection with such warranties and guarantees at Lessee's expense. Lessor has no obligation to enforce any Vendor's warranties or obligations on behalf of itself or Lessee. Section 10.3. Disclaimer of Warranties. LESSEE ACKNOWLEDGES THAT THE EQUIPMENT IS OF A SIZE, DESIGN, CAPACITY, AND MANUFACTURE SELECTED BY LESSEE. LESSEE ACKNOWLEDGES THAT IT SELECTED THE EQUIPMENT WITHOUT ASSISTANCE OF LESSOR, ITS AGENTS OR EMPLOYEES. LESSOR IS NOT A MANUFACTURER OF THE EQUIPMENT OR A DEALER IN SIMILAR EQUIPMENT, AND DOES NOT INSPECT THE EQUIPMENT BEFORE DELIVERY TO LESSEE. LESSOR MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, AS TO THE VALUE, DESIGN, CONDITION, QUALITY, DURABILITY, SUITABILITY, MERCHANT- ABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR FITNESS FOR THE USE CONTEMPLATED BY LESSEE OF THE EQUIPMENT, OR ANY OTHER REPRESENTATION OR WARRANTY WITH RESPECT TO THE EQUIPMENT. IN NO EVENT SHALL LESSOR BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR THE EQUIPMENT OR LESSEE'S USE OF THE EQUIPMENT. -11- e e ARTICLE XI. ASSIGNMENT AND SUBLEASING Section 11.1. Assignment by Lessor. Lessor, without Lessee's consent, may assign and reassign all of Lessor's right, title and/or interest in and to this Agreement or any Lease, including, but not limited to, the Rental Payments and other amounts payable by Lessee and Lessor's interest in the Equipment, in whole or in part to one or more assignees or subassignee(s) by Lessor at any time. No such assignment shall be effective as against Lessee unless and until written notice of the assignment is provided to Lessee. When presented with a notice of assignment, Lessee will acknowledge in writing receipt of such notice for the benefit of Lessor and any assignee. Lessee shall keep a complete and accurate record of all such assignments. Section 11.2. Assignment and Subleasing by Lessee. Neither this Agreement nor any Equipment may be assigned, subleased, sold, transferred, pledged or mortgaged by Lessee. ARTICLE XII. EVENTS OF DEFAULT AND REMEDIES Section 12.1. Events of Default Defined. The occurrence of any of the following events shall constitute an Event of Default under this Agreement and each Lease: (a) Lessee's failure to pay, within ten (10) days following the due date thereof, any Rental Payment or other amount required to be paid to Lessor (other than by reason of Non- Appropriation) . (b) Lessee's failure to maintain insurance as required by Article VII. (c) With the exception of the above clauses (a) and (b), Lessee's failure to perform or abide by any condition, agreement or covenant for a period of thirty (30) days after written notice by Lessor to Lessee specifying such failure and requesting that it be remedied, unless Lessor shall agree in writing to an extension of time prior to its expiration. (d) Lessor's determination that any representation or warranty made by Lessee in this Agreement was untrue in any material respect upon execution. of this Agreement or the Equipment Schedule. (e) The occurrence of an Event of Taxability. (f) The filing of a petition in bankruptcy by or against Lessee, or failure by Lessee promptly to lift any execution, garnishment or attachment of such consequence as would impair the ability of Lessee to carryon its governmental functions or assignment by Lessee for the benefit of creditors, or the entry by Lessee into an agreement of composition with creditors, or the approval by a court of competent jurisdiction of any adjustment of indebtedness of Lessee, or the dissolution or liquidation of Lessee. Section 12.2. Remedies on Default. Upon the occurrence of any Event of Default, Lessor shall have the right, at its option and without any further demand or notice to one or more or all of the following remedies: (a) Lessor, with or without terminating this Agreement or any Lease, may declare all Rental Payments immediately due and payable by Lessee, whereupon such Rental Payments shall be immediately due and payable. -12- e e (b) Lessor, with or without terminating this Agreement, may repossess any or all of the Equipment by giving Lessee written notice to deliver such Equipment in the manner provided in Section 12.3; or in the event Lessee fails to do so within ten (10) days after receipt of such notice, Lessor may enter upon Lessee's premises where such Equipment is kept and take possession of such Equipment and charge Lessee for costs incurred, including reasonable attorneys' fees. Lessee hereby expressly waives any damages occasioned by such repossession. If the Equipment or any portion has been destroyed, Lessee shall pay the applicable Prepayment Price of the destroyed Equipment as set forth in the related Payment Schedule. Regardless of the fact that Lessor has taken possession of the Equipment, Lessee shall continue to be responsible for the Rental Payments due during the Fiscal Year. (c) If Lessor terminates this Agreement and, in its discretion, takes possession and disposes of any or all of the Equipment, Lessor shall apply the proceeds of any such disposition to pay the following items in the following order: (i) all costs (including, but not limited to, attorneys' fees) incurred in securing possession of the Equipment; (ii) all expenses incurred in completing the disposition; (iii) any sales or transfer taxes; (iv) the applicable Prepayment Price of the Equipment; and (v) the balance of any Rental Payments owed by Lessee during the Fiscal Year then in effect. Any disposition proceeds remaining after the requirements of Clauses (i), (ii), (iii), (iv) and (v) have been met shall be paid to Lessee. (d) Lessor may take any other remedy available, at law or in equity, with respect to such Event of Default, including those requiring Lessee to perform any of its obligations or to pay any moneys due and payable to Lessor and Lessee shall pay the reasonable attorneys' fees and expenses incurred by Lessor in enforcing any remedy hereunder. (e) Each of the foregoing remedies is cumulative and may be enforced separately or concurrently. Section 12.3. Return of Equipment: Release of Lessee's Interest. Upon termination of this Agreement prior to the payment of all related Rental Payments or the applicable Prepayment Price (whether as result of Non-Appropriation or Event of Default), Lessee shall, within ten (10) days after such termination, at its own expense: (a) perform any testing and repairs required to place the Equipment in the condition required by Article VIII; (b) if deinstallation, disassembly or crating is required, cause such Equipment to be deinstalled, disassembled and crated by an authorized manufacturer's representative or such other service person as is satisfactory to Lessor; and (c) return such Equipment to a location specified by Lessor, freight and insurance prepaid by Lessee. If Lessee refuses to return such Equipment in the manner designated, Lessor may repossess the Equipment without demand or notice and without court order or legal process and charge Lessee the costs of such repossession. Upon termination of this Agreement in accordance with Article III or Article XII hereof, at the election of Lessor and upon Lessor's written notice to Lessee, full and unencumbered legal title and ownership of the Equipment shall pass to Lessor. Lessee shall have no further interest therein. Lessee shall execute and deliver to Lessor such documents as Lessor may request to evidence the passage of legal title and ownership to Lessor and termination of Lessee's interest in the Equipment. Section 12.4. Late Charge. Lessor shall have the right to require late payment charge for each Rental or any other amount due hereunder which is not paid within 10 days of the date when due equal to the lesser of 5% of each late payment or the legal maximum. This Section is only applicable to the extent it does not affect the validity of this Agreement. -13- e e ARTICLE XIII. MISCELLANEOUS PROVISIONS Section 13.1. Notices. All written notices to be given under this Agreement shall be given by mail to the party entitled thereto at its address specified below, or at such address as the party may provide to the other parties hereto in writing from time to time. Any such notice shall be deemed to have been received 72 hours after deposit in the United States mail in registered or certified form. with postage fully prepaid, or, if given by other means. when delivered at the address specified in this Section 13.1. If to Lessor: SunTrust Leasing Corporation 29 West Susquehanna Avenue, Suite 400 Towson. MD 21204 Attention: Mr. Michael]. Powers. Secretary Telephone: (410) 307-6600 Telecopier: (410) 307-6702 If to Lessee: City of Santa Ana 20 Civic Center Plaza Santa Ana, CA 92701 Attention: Mr. Roderick R. Coloma Telephone: (714) 647-5422 Telecopier: (714) 647-5414 Section 13.2. Binding Effect. This Agreement and each Lease hereunder shall be binding upon and shall inure to the benefit of Lessor and Lessee and their respective successors and assigns. Specifically, as used herein the term "Lessor" means any person or entity to whom Lessor has assigned its right to receive Rental Payments under any Lease. Section 13.3. Severability. In the event any provision of this Agreement or any Lease shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof. Section 13.4. Entire Agreement: Amendments. This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous writings. understandings. agreements, solicitation documents and representations, express or implied. This Agreement may be amended or modified only by written documents duly authorized, executed and delivered by Lessor and Lessee. Section 13.5. Captions. The captions or headings in this Agreement are for convenience only and in no way define, limit or describe the scope or intent of any provisions, Articles. Sections or Clauses hereof. Section 13.6. Further Assurances and Corrective Instruments. Lessor and Lessee agree that they will, from time to time, execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered, such supplements hereto and such further instruments as may reasonably be required for correcting any inadequate or incorrect description of the Equipment hereby leased or intended so to be, or for otherwise carrying out the expressed intention of this Agreement. Section 13.7. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State. Section 13.8. Usury. It is the intention of the parties hereto to comply with any applicable usury laws; accordingly. it is agreed that. notwithstanding any provisions to the contrary herein -14- e e or in any Equipment Schedule, in no event shall this Agreement or any Lease hereunder require the payment or permit the collection of Interest or any amount in the nature of Interest or fees in excess of the maximum amount permitted by applicable law. Any such excess Interest or fees shall first be applied to reduce Principal, and when no Principal remains, refunded to Lessee. In determining whether the Interest paid or payable exceeds the highest lawful rate, the total amount of Interest shall be spread through the applicable Lease Term so that the Interest is uniform through such term. . Section 13.9. Lessee's Performance. A failure or delay of Lessor to enforce any of the provisions of this Agreement or any Lease shall in no way be construed to be a waiver of such provision. -15- e e IN WITNESS WHEREOF, Lessor has caused this Agreement to be executed in its corporate name by its duly authorized officer, and Lessee has caused this Agreement to be executed in its name by its duly authorized officer. SUNTRUST LEASING CORPORATION, as Lessor Michael]. Powers Secretary A TrEST: ~~~~ ..{lei\..- Patricia E. ly Clerk of the Council CITY OF SANTA ANA, a municipal corporation of the State of California ~~;.s:\ ~~C\ ~~(~~c>(~~;\o0 \m.. Miguel it. Pu'Iido \) - Mayor APPROVED AS TO FORM: Joseph W; Fletcher City Attorney t;&;,- 2,~ Lisa E. Storck Assistant City Attorney RECOMMENDED FOR APPROVAL: eri R. Coloma Finance & Mana ement Services Agency This is counterpart No. ~ of 3 serially numbered, manually executed counterparts of this document. To the extent that this Agreement constitutes chattel paper under the Uniform Commercial Code, a security interest in this Agreement may be created through the transfer and possession of Counterpart No.1 only. without the need to transfer possession of any other original or counterpart or copy of this Agreement or any original or counterpart or copy of any exhibits, addenda, schedules, certificates, riders or other documents and instruments executed and delivered in connection with this Agreement. -16- ~ \ \. e EXHIBIT A EQUIPMENT SCHEDULE Machinery & Equipment Servers and Related Equipment 25 Servers Payroll Servers and equipment Santa Ana Property Information Servers and equipment Municipal Utility Service Servers and equipment City Web Server .and equipment WINDOWS 2K Servers City E-mail Servers Internet Access Security and Firewall Servers Naming Management Servers Domain Controller Server and equipment Equipment to Upgrade City Server to WIN 2K Computers and Related Equipment Desktop and Laptop Computers (120) HP Rackmount Flat Panel Monitor CTX Monitors for remote monitoring Handheld microcomputers for network Total Financing Required Exhibit A e $ 308,600 338,050 139.400 49,350 148,050 196,250 98,700 98,700 49,350 36.500 $ 512,100 18,850 2,275 3.825 $ 1,462,950 $ 537.050 $2.000.000 Payment Date 03/24/02 09/24/02 03/24/03 09/24/03 03/24/04 09/24/04 03/24/05 09/24/05 03/24/06 09/24/06 Totals e Total Rental Payment $ 220.909.24 220.909.24 220.909.24 220.909.24 220.909.24 220.909.24 220.909.24 220.909.24 220,909.24 220.909.24 $2.209.092.36 EXHIBIT B PAYMENT SCHEDULE Principal Component $ 183.909.24 187.311.56 190.776.82 194.306.19 197.900.86 201.562.02 205,290.92 209.088.80 212.956.94 216.896.65 $2.000,000.00 *Reflects an interest rate of 3.70% per annum. ** After payment of Rental Payment due on such date. Exhibit B It Interest Component* $ 37.000.00 33.597.68 30.132.42 26.603.04 23.008.38 19.347.21 15.618.32 11.820.43 7.952.29 4.012.59 $209.092.36 Prepayment Price** $1.816.090.76 1,628.779.21 1.438.002.39 1.243.696.19 1.045,795.34 844.233.31 638.942.39 429.853.59 216.896.65 e e EXHIBIT C FORM OF DISBURSEMENT CERTIFICATE $2,000,000 EQUIPMENT LEASE-PURCHASE AGREEMENT Dated September 24,2001, by and between SUNTRUST LEASING CORPORATION, as Lessor, an<:l the CITY OF SANTA ANA, as Lessee REQUISITION NO. _ FOR DISBURSEMENT FROM THE PROCEEDS ACCOUNT The undersigned hereby states and certifies: (i) that the undersigned is the duly appointed, qualified and acting of City of Santa Ana, a municipal corporation and charter city, organized and existing under the laws of the State of California (the "City"), and as such, is familiar with the facts herein certified and is authorized to certify the same on behalf of the City; (ii) that, pursuant to Section 2.1 of that certain Equipment Lease-Purchas,e Agreement, dated September 24, 2001 ("Lease Agreement"), by and between SunTrust Leasing Corporation. as lessor (the "Lessor"), and the City, the Lessor is hereby requested to approve the disbursement this date. from the Proceeds Account established under the Lease Agreement. to the payees designated on Exhibit A attached hereto and by this reference incorporated herein, at the addresses set forth below such payee name, the sum set forth opposite such payee, for payment or reimbursement for costs of the Equipment specified (as defined in Lease Agreement); (iii) that the obligations set forth on the attached Exhibit A have been incurred by the City and are presently due and payable and that each item thereof is a proper charge against the Proceeds Account and has not been previously paid from the Proceeds Account; (iv) that there has not been filed with or served upon the City notice of any lien, right to lien or attachment upon, or claim affecting the right to receive payment of, any of the amounts payable to any of the persons named in this requisition. which has not been released or will not be released simultaneously with the payment of such obligation, other than materialmens' or mechanics' liens accruing by mere operation of law; (v) that the Equipment component for which such payment relates has been constructed or installed and is satisfactory to the City, and (vi) that the balance remaining in the Proceeds Account after payment of the amounts requested pursuant to this requisition, together with any investment income reasonably anticipated to be deposited in the Proceeds Account and any other funds reasonably anticipated to be available therefor, will be sufficient to pay the costs of completing the Equipment. Exhibit' C Page 1 e e (vii) that capitalized terms used herein and not otherwise defined shall have the meanings ascribed thereto in the Lease Agreement. Dated: CITY OF SANTA ANA By Name Title APPROVED: SUNTRUST LEASING CORPORATION By Name Title -2- e e EXHIBIT A REQUISITION NO. PROCEEDS ACCOUNT DISBURSEMENTS Payee Name and Address Purpose of Obligation Amount -3- e e Patricia E. Healy, Clerk of the Council CJ~ aflV;;J,r. ~ry ('UJ:K) (iv) that. for and on .behalf of the City the within-named Mayor, City Manager, Executive Director, Finance & Management Services Agency, have executed, and the within- named Clerk of the Council has attested to, that certain Equipment Lease-Purchase Agreement, dated September 24, 2001. by and between SunTrust Leasing Corporation and the City; and (v) that, on September 17. 2001, the City Council of the City adopted Resolution No. 2001-062 (the "Resolution"), entitled "RESOLUTION AUTI:IORIZING AND DIRECTING THE EXECUTION OF CERTAIN LEASE FINANCING DOCUMENTS AND AUTHORIZING AND DIRECTING CERTAIN ACTIONS WITH RESPECT THERETO," which Resolution has not been amended, modified, supplemented, rescinded or repealed and remains in full force and effect as of the date hereof. Dated: January 22, 1998 CITY OF SMNA By UIt'< David N. earn, City Manager / [SEAL] By arrf~~~/ --;[if Clerk of the Council -2- --- e . 09/06/01 LES RESOLUTION NO. 2001-062 A RESOLUTION AUTHORIZING AND DIRECTING THE EXECUTION OF CERTAIN LEASE FINANCING DOCUMENTS FOR COMPUTER HARDWARE/SOFTWARE AND AUTHORIZING AND DIRECTING CERTAIN ACTIONS WITH RESPECT THERETO BE IT RESOLVED by the City Council of the City of Santa Ana as follows: Section 1. The City Council of the City of Santa Ana hereby finds, determines and declares that the following findings are true and correct: A. The City proposes to finance certain computer hardware and software and related equipment (the "Project"); B. The City has solicited proposals from commercial leasing firms in connection therewith and the City has received proposals several firms; C. The proposal of Suntrust Leasing Corporation (the "Lessor"), a copy of which is attached hereto (the "Proposal"), is the best proposal, providing the lowest cost to the City for financing the Project; D. It is in the public interest and for the public benefit that the City authorize and direct execution of a lease agreement with the Lessor and certain other financing documents in connection therewith; E. The documents below specified have been filed with the City and the members of the Council, with the aid of its staff, shall review said documents; Section 2. The City Council hereby approves and accepts Lessor's Proposal. Section 3. The below-enumerated documents are hereby approved, and the Mayor, the City Manager or the Executive Director of the Finance & Management Services Agency, or the designee of any such official, is hereby authorized and directec to execute said documents, with such changes, insertions and omissions as may r approved by such official, and the Clerk of the Council is hereby authorized and direcl to attest to such official's signature: (a) a lease agreement, by and between the Lessor, as lessor, and the ( lessee (the "Lease Agreement"), so long as the basic financial terms thf consistent with the Proposal; and Rese } j::) ( e e , (b) if required, an escrow agreement, by and between the City and a trustee bank to be selected, relating to the receipt, investment and disbursement of moneys paid by the Lessor to the City under the Lease Agreement. Section 4. Quint & Thimmig LLP, San Francisco, California, is hereby designated as bond counsel to the City in connection with the execution and delivery of the Lease Agreement. The Mayor, the City Manager or the Executive Director, Finance & Management Services Agency, or the designee of any such official, is hereby authorized and directed in the name and on behalf of the City to execute an Agreement for Legal Services with such firm. Section 5. PMG Financial Consulting, Orange, California, is hereby designated as financial advisor to the City in connection with the execution and delivery of the Lease Agreement. The Mayor, the City Manager or the Executive Director, Finance & Management Services Agency, or the designee of any such official, is hereby authorized and directed in the name and on behalf of the City to execute an Financial Advisory Agreement with such firm. Section 6. The Mayor, the City Manager, the Executive Director of Finance & Management Services Agency, the City Attorney, the Clerk of the Council and all other appropriate officials of the City are hereby authorized and directed to execute such other agreements, documents and certificates as may be necessary to effect the purposes of this resolution and the financing herein authorized. Section 7. This Resolution shall take effect immediately upon its adoption by the City Council, and the City Clerk shall certify the vote adopting this Resolution. ADOPTED, this 17th day of September, 2001. ~~D~rO ~ kMiguel A. Pulido , \~ \) Mayor APPROVED AS TO FORM: Joseph W. Fletcher, City Attorney By: '(Ie-; ~ ~. ~( Lisa E. Storck Assistant City Attorney Resolution No. 2001-062 Page 2 of 3 .. . . e e AYES: Councilmembers: Alvarez. Bist. Christy. Franklin. McGuigan. Solorio (6) NOES: Council members: None ABSTAIN: Council members: None NOT PRESENT: Councilmembers: Pulido (1) CERTIFICATE OF ATTESTATION AND ORIGINALITY I, PATRICIA E. HEALY, Clerk of the Council, do hereby attest to and certify the attached Resolution No. 2001-062 to be the original resolution adopted by the City Council of the City of Santa Ana on Seotember17. 2001 . Date: {;"'::? 'i -01 ~l ..--.-- THE FOREGOING DOCUMENT IS A FULL. TRUE & CORRECTCOPY OF ~THE ORIGiNAL ON FILE IN THIS orflCE. o THE ORIGitlAL ON FILE ill ATTEST: BY, 20 gL- Resolution No. 2001-062 Page 3 of 3 . Quint & Thimmig LLP e 9/21/01 $2,000,000 EQUIPl\1ENT LEASE-PURCHASE AGREEMENT Dated September 24,2001, by and between SUNTRUST LEASING CORPORATION, as Lessor, and the CITY OF SANTA ANA, as Lessee INCUMBENCY AND SIGNATURE CERTIFICATE - CITY The undersigned hereby state and certify: (i) that they are the duly elected or appointed, qualified and acting City Manager and Clerk of the Council, respectively, of the City of Santa Ana, California, a charter city and municipal corporation duly organized and existing under and by virtue of the Constitution and laws of the State of California (the "City"), and as such, are familiar with the facts herein certified and are authorized and qualified to certify the same on behalf of the City; (ii) that the following are now, and have continuously been since the dates of beginning of their respective current terms of office shown below, the duly elected or appointed, qualified and acting members of the City of Council of the City, and the dates of the beginning and ending of their respective current terms of office are hereunder correctly designated opposite their names: Council Members Beginning Date of Current Term Miguel A. Pulido, Mayor Claudia Alvarez Lisa Bist Alberta D. Christy Brett Franklin Patricia A. McGuigan Jose Solorio November, 1998 November, 2000 November, 1998 November, 1998 November, 2000 November, 1998 November, 2000 Ending Date of Current Term November, 2002 November, 2004 November, 2002 November, 2002 November, 2004 November, 2002 November, 2004 (Hi) that the signatures set forth opposite the names of the following persons are the true and correct specimens of, or are, the genuine signatures of such persons, each of whom holds the office designated below: Name and Title Miguel A. Pulido, Mayor David N. Ream, City Manager Roderick R. Coloma, Executive Director, Finance & Management Services Agency Signature ~h~~ e e BUSINESS CALENDAR RESOLUTION NO. 2001-061 - A resolution of the City Council of the City of Santa Ana adopting Design and Development Standards for Gateways pursuant to the Urban Design Element of the General Plan of the City of Santa Ana t1 "310 1- ) f5 M MOTION: Alvarez SECOND: Franklin VOTE: AYES: NOES: Alvarez, Bist, Christy, Franklin, Solorio (5) McGuigan (1) ABSENT: Pulido (1) 55.B. LEASE PURCHASE AGREEMENT AND CONTRACT AWARDS FOR COMPUTER EQUIPMENT Motion: 1. Adopt resolution. RESOLUTION NO. 2001-062 - A resolution authorizing and directing the execution of certain lease financing documents for computer hardware/software and authorizing and directing certain actions with respect thereto 2. Direct the City Attorney to prepare and authorize the Mayor and Clerk of the Council to execute agreements. AGMT NO. 2001-195 - Award contracts for the purchase of network servers, desktop computers, printers, laptops, and other peripheral computer equipment for a one-year period in an aggregate amount not to exceed $3,081,000.00 to the vendors as follows: Direct Manufacturers: Dell Computer Corporation Gateway 2000, Inc. Integraph Corporation Micron Electronics, Inc. Value Added Resellers: En Pointe Technologies, Inc. CDW-G Computer Centers, Inc. Compaq Computer E-Systems Design Future Computing Solutions Micron Electronics, Inc. Sehi Computer Products Technology Management Corporation CITY COUNCIL MINUTES 347 SEPTEMBER 17, 2001 e e BUSINESS CALENDAR MOTION: Alvarez SECOND: Solorio NOES: Alvarez, Sist, Christy, Franklin, McGuigan, Solorio (6) None (0) Pulido (1) VOTE: AYES: ABSENT: PUBLIC HEARINGS 75.A. ZONING ORDINANCE AMENDMENT NO. 2001-07 TO INCLUDE ON- SITE LANDSCAPE IMPROVEMENTS WITHIN THE SCOPE OF CITY STREET WIDENING PROJECTS Public hearing held and closed on August 20, 2001 To amend Chapter 41 of the Santa Ana Municipal Code to include on-site landscape improvements within the scope of City Street widening projects Recommended for approval by the Planning Commission on July 23, 2001 by a 4-2 vote (Nalle and Leo opposed, Richardson absent) Legal Notice published in the Orange County Register and mailed on August 10, 2001 Mayor Pro Tern McGuigan asked if anyone wished to speak on this matter. There were no speakers. Motion: 1. Approve and adopt the Negative Declaration for Environmental Review No. 01-104. 2. Revise Sec. 41-781(b) of the ordinance to include the phrase "in consultation with the City Council"; place ordinance on first reading and authorize publication of title. ORDINANCE NO. NS-2478 - An ordinance of the City Council of the City of Santa Ana adding Section 41-781 to the Santa Ana Municipal Code relating to exercise of eminent domain for partial takes of property and establishing landscaping setbacks CITY COUNCIL MINUTES 348 SEPTEMBER 17, 2001