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HomeMy WebLinkAboutContracts & Agreements_167-2008_CCv0001.pdf Page 1 of 2 Lisa Caldera From: Lisa Caldera Sent: Tuesday, September 01,2009 9:52 AM To: Gary VanDorst Subject: RE: Caterpillar Financial Services Corporation Much appreciated. _----Original Message----- From: Gary VanDorst Sent:Tuesday, September 01, 2009 9:44 AM To: Lisa Caldera;Tom Steele Cc: Todd Housley Subject: RE: Caterpillar Financial Services Corporation if . ..z ana.. hVi=e . itW,aW have N.Pe a master fil ee that, John S ilh ra �r-id Jo hr d „a, masterTaw *e h s�. r y _ ..# � ;`� _ e _ a _ �'' _ believe. . �we have located themac—er From: Lisa Caldera Sent: Tuesday, September 01, 2009 9:41 A To: Tom Steele Cc: Gary VanDorst Subject: RE: Caterpillar Financial Services Corporation Thpank you, Tom. have the ori ��-�4 3_x �Xxv ��. w�� wd and .e_ _. vim . ,_ . . : . or at _ .._.` s --_-_Original Message----- From: Tom Steele Sent: Tuesday, September 01, 2009 7:44 AM To: Lisa Caldera Subject: RE: Caterpillar Financial Services Corporation This is what l have, if it's not ghat you're looking for, try Cary van Dorst. Tom From: Lisa Caldera Sent* Monday, August 31, 2009 9:57 AM To:Torn Steele Subject: Caterpillar Financial Services Corporation Torn, 91/1/2009 s Et Page 2 of 2 I am looking for the amendment to lease-purchase agreement dated October 21, 2008. Would you be able to provide our office with an original or copy's Thank you. IJ, a Caldera Administrative Assistant City of Redlands City Clerk's Office 35 Cajon Street, Suite 4 Redlands, CA 92373 (909) 798-7531 Q111'7)ho lz� J-1 It V j 1 AMENDMENT TO GOVERNMENTAL LEASE-PURCHASE AGREEMENT "Y" This Amendment to Governmental Lease-Purchase Agreement ("Amendment"), j-"; �2,1 to dated as of October 21, 2008, is entered into by and between Caterpillar Financial Services Corporation ("Lessor") and the City of Redlands in the State of California ("Lessee"). C)cy WHEREAS, Lessee executed that certain Governmental Lease-Purchase p Agreement with Lessor(the"Agreement"), dated as of the date of this Amendment; and /j, WHEREAS, Lessee and Lessor desire to amend the Agreement with respect to the matters hereinafter specified; NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Lessee and Lessor agree to amend the Agreement as follows: I. Capitalized terins used herein and not defined herein shall have the meanings ascribed to them in the Agreement. 2. The second to last sentence of Section 8 of the Agreement is hereby amended by adding "from legally available funds" at the end of such sentence. 3. Section 13(a) of the Agreement is hereby amended by adding "and under no circumstances may Lessor accelerate all of the unpaid Lease Payments for the entire term of the Lease." 4. In the event of any conflict or inconsistency between the terms of the Agreement and the terms of this Amendment, the terms of this Amendment shall control. Except as provided herein, the Agreement shall remain unchanged and in full force and effect in accordance with its terms. It is specifically understood and agreed that the foregoing shall not be deemed to be a waiver or amendment of any other provision of the Agreement or any of Lessor's rights or remedies under the Agreement. 1-1:",,agreenwnts',Caterpillar�CATERPILLAR Amendment to governmental lease,doc 9/23/08 8:27 a.m. „ ... .`' AMENDMENT TO GOVERNMENTAL LEASE-PURCHASE AGREEMENT This Amendment to Governmental Lease-Purchase Agreement ("Amendment"), dated as of October 21, 2008, is entered into by and between Caterpillar Financial Services Corporation ("Lessor") and the City of Redlands in the State of California ("Lessee"). WHEREAS, Lessee executed that certain Governmental Lease-Purchase Agreement with Lessor(the"Agreement"), dated as of the date of this Amendment; and WHEREAS, Lessee and Lessor desire to amend the Agreement with respect to the matters hereinafter specified; NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Lessee and Lessor agree to amend the Agreement as follows: 1. Capitalized terms used herein and not defined herein shall have the meanings ascribed to them in the Agreement. 2. The second to last sentence of Section 8 of the Agreement is hereby amended by adding "from legally available funds" at the end of such sentence. 3. Section 13(a) of the Agreement is hereby amended by adding "and under no circumstances may Lessor accelerate all of the unpaid Lease Payments for the entire term of the Lease." 4. In the event of any conflict or inconsistency between the terms of the Agreement and the terms of this Amendment, the terms of this Amendment shall control. Except as provided herein, the Agreement shall remain unchanged and in full force and effect in accordance with its terms. It is specifically understood and agreed that the foregoing shall not be deemed to be a waiver or amendment of any other provision of the Agreement or any of Lessor's rights or remedies under the Agreement. Haagreements,Caterpillarlt 1 FEZI'l[ LAR Amendment to governmental lease.doc 9123108 8:27 a.m. IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective duly authorized officers as of the date first set forth above. CITY OF REDLANDS e Jon Hf ison, Mayor ATTEST: Lode Poyzer;`C, y Ierk CATERPILLAR FINANCIAL SERVICES CORPORATION Name: Title: N:a reemcnts{'afer i]Iar'C'r�TCiFth[LLfhRAmendment to (ease,doe 923iO8 8:27 a.m. �r,�-,«-��-�=.....a% r^a"�^�- ..,r,sz.,`::3,c��e-'. ,�:✓✓r,.c`.��-�:-_- �.�s7�:,,;:�..,."�_a�,�,...�.�'�..,M,���.:a_- `��'ti..,������w�ar-_�``��a.,�..,..,;.;��.:u_»....==�;asr�',�.�,a��„`.�.��`,'m�� �..��� �.:,� ��, CATERPILLAR FINANCIAL SERVICES CORPORATION GOVERNMENTAL EQUIPMENT LEASE-PURCHASE AGREEMENT DOCUMENT PACKAGE Explanation of Contents Thank you for selecting Caterpillar products and for allowing Caterpillar Financial Services Corporation to serve your financing needs. Included in this document package are all of the forms that will be needed for standard tax exempt lease purchase transactions. The forms have been designed to be clear,concise and user friendly. We have also provided a brief explanation of the purpose of each form. If you wish to discuss any of the forms or have any questions about any aspect of this transaction,we encourage you to contact your Caterpillar Dealer or Caterpillar Financial Services Corporation at 1-866-263-3791 Option#5. A. Governmental Equipment Least-Purchast Agreement. The Governmental Lease-Purchase Agreement contains the terms that govern each transaction between us. It is the standard Caterpillar Financial Services Corporation tax exempt lease-purchase agreement,and provides that we will lease to you the equipment described therein pursuant to a full payout amortization schedule. A new Governmental Equipment Lease-Purchase Agreement will have to be signed in connection with each transaction. B. Acceptance Certificate. The Acceptance Certificate is signed by you when you receive and confirm that the equipment being lease-purchased under the Governmental Equipment Lease-Purchase Agreement is operational and in good working order. As we are not involved in the manufacture,selection or delivery of the equipment we are relying upon you to ensure that the equipment works. C. Lessee's Authorizing Resolution. The Authorizing Resolution is evidence you have taken the necessary governing body actions to approve the Governmental Equipment Lease-Purchase Agreement. Although the authorizing instrument is often a resolution,it may also take other forms such as an ordinance.We are agreeable to using your customary or standard form provided it contains specific approval for the lease-purchase agreement,designates persons who are authorized to sign on your behalf and either approves the document forms or delegates this authority to a named official D. Verification of Insurance. The Certificate of Insurance is intended to supply information regarding the insurance coverage for the equipment being lease-purchased. You will need to supply the requested information to us so we can verify coverage. E. Opinion of CoanseL An opinion of counsel is required in connection with each Governmental Equipment Lease-Purchase Agreement. The opinion is intended to confirm that you have complied with all open meeting laws,publication and notice requirements,procedural rules for governing body meetings,and any other relevant state or local government statutes,ordinances, rules or regulations. We would be unable to confirm compliance with these laws and regulations ourselves absent long delays and higher costs so we rely upon the opinion of your attorney since he/she may have been involved in the process to approve our transaction and is an expert in the laws and regulations to which you are subject. The opinion also confirms that you are an entity eligible to issue tax-exempt obligations and that the Governmental Equipment Lease-Purchase Agreement will be treated as tax- exempt as it is your obligation to ensure that you have complied with relevant tax law. F. Form of 8038G or GC. Form 8038 is required by the Internal Revenue Service in order to monitor the amount of tax-exempt obligations issued. You have to execute a Form 8038 for each Governmental Equipment Lease-Purchase Agreement.Whether a Form 8038 G or GC is required depends on the original principal amount of the Governmental Equipment Lease-Purchase Agreement.If the original principal amount is less than 8100,000 Form 8038GC is filed with the IRS.Ifthe original principal amount is$100,000 or more Form 8038G is filed with the IRS. Choose the appropriate 8038 form and complete according to IRS guidelines. Contact your TM or Sales Support Representative for assistance. IRS Form 8038G htto:/h~.irs.gov/purrs-o4f/f8038g.tadf IRS Form 8038GC httn:/twww.irs.ggv/nub/irs- /f8O38ac. This Explanation of Contents is prepared as an accommodation to the parties named herein. It is intended as an example of some of the documents that Caterpillar Financial Services Corporation,in its reasonable judgment,may require and is not intended to constitute legal advice.Please engage and use your own legal counsel. We understand that the laws ofthe various states are different so nothing herein shall be construed as a warranty or representation that the documents listed herein are the only documents that may be required in any particular transaction or that any particular transaction,if documented in accordance with this Explanation of Contents,will be a valid,binding and enforceable obligation enforceable against the parties named'herein in accordance with the terms of the documents named herein. CATERPILLAR FINANCIAL SERVICES CORP. These documents were prepared especially for CITY OF REDLANDS P.O. BOX 3005 REDLANDS,CA 92373-1505 Dealer:JOHNSON MACHINERY CO., H270 Quote Number: 1319073 Date: 09/22/2008 Credit Application Number. 752546 Time: 4:28 PM Comments: DOCUMENT CHECKLIST(GOVERNMENTAL LEASE) istomer Executed Documents Comments ease Purchase Document cceptance Certificate surance Verification ❑8038G or 8038GC /0 ,03 QAdvance Payment(cross out if N/A) .�Q�C Customer Information Verification Tax Exemption Certificate 00 y necessary Riders/Amendments KiLessee's Resolution+Minutes of Meeting OR 1qOpinion of Lessee's Counsel ❑fie .,,. r� *If any of these documents are altered or if the Lessee wishes to add or delete documents,please contact your CFSC Credit Analyst to obtain acceptance of any and all changes. If you have any questions concerning these documents please call and ask for jag Checklist completed and confirmed by: Print Name: Ga r`y VgY1 d/`S� Date: These Documents do not constitute arty offer or comminnent to offer financing by Caterpillar Financial Services Corporation without Caterpillar Financial services Corporation's cWessed wntten approval. GOVERNMENTAL EQUIPMENT LEASE-PURCHASE AGREEMENT Lessee:CITY OF REDLANDS Lessor: Caterpillar Financial Services Corporation Address:P.O. BOX 3005 Address:2120 West End Avenue City:REDLANDS City:Nashville State/Zip CA 92373-1505 State/Zip:Tennessee 37203-0001 Thia Governmental E"pnert LooswPwdhese Agreement w dated as d October 21, 2008 1. LEASE PAYMENT!:CURREMT EXPENSE.Lessee agrees to pay the lease payments(the"Lease Paymerks")with respect to this Agreament during the term hereof in the www"and on the dates spedRad Wow.A pordw of each Leese Payment is paid as and represonle the psymert d interest and the I I n d each Lease Psymert is Paid as and represents paynwit of pdfxxpeL Lessor is authorized to insert the due data of the Lew Psymerrts and any other inkrinedon that should be added hereto in order for this A9reerrwk to rdect the s0eu0c agnewrhwts d the PrUes hereto.IU Lomas Payments shah be paid to Lessor wthat ndke or demand 0 Such pace as Lessor may from time,to time designate by written notice to Leasee.Lessee shd pay the Leah Payments eacdustvely from moneys legally available therefor.in lawful money of the United States of America,The odigatione of Lessee,including its obligation to pay the Lease Payments due in any fiscal yew,shall constitute a curtest expense or Lose"for such fisc yew and Od not constitute an indebtedness d Lessee within the rtewKq of the constitution and Is"of the State in which Lessee is located(the"State). Nothing herein shad coratttute a pledge by Lessee of any taxes or other morays(Otter than moneys IawfiNy appropriated from time to time for the payment of the payrteaW (as defined in the Ise w to of this Poralpaph)owing hereunder.EXCEPT AS PROVIDED IN PARAGRAPH 4,LESSEE'S OBLIGATIONS TO MAKE THE PAYMENTS TO LESSOR IN THE AMOUNTS REQUIRED HEREBY ARE ABSOLUTE AND UNCONDITIONAL.LESSEE FURTHER EXPRESSLY AGREES THAT R WILL MAKE ALL SUCH PAYMENTS TO LESSOR REGARDLESS OF,AND WILL NOT ASSERT AGAINST LESSOR,ANY DEFENSE,CLAIM,SETOFF,OR COUNTERCLAIM OR OTHER RIGHT, EXISTING OR FUTURE,WHICH LESSEE MAY HAVE AGAINST THE LESSOR OR ANY OTHER PERSON OR ENTITY FOR ANY REASON.As used in this Agreement, "Payments"eta/mean the Leese Payments and any other amounts required to be paid by Lessee hereunder. leap—Payrments"be paid by Lessee to Lessor according to the attached payment schedule:provided Drat id accounts owing hereunder shall be due by the final payment date. if Lessor does not recehre a Leap payment on the date it is due,Lessee shall pay to Lessor,an demand a late peymerd charge equal to the lesser of five Percent(5%)of the payment not paid when due or the highest charge slowed by law,whichever is less. The portion of the Lomas Payments constituting Principal shall beer interest(computed on the bads of actual days elapsed in a 380 day year)at the rate of 4.25%per annum. 2. SECURITY INTEREST.Lessor agrees to leap to Lessee and Lessee agrees to leap from Lessor,the items of equipment(the"Equipmerin described below.In order to secure a1 of its obligations hereunder,Lessee hereby (a)grants to Lessor a first and prior security interest in any and all right,tide,and interest of Lessee in the Equipment e t and in al additions,attachments,accessions,and substituttoru Uereto,and on any proceeds therefrom and(b)agrees to do any further act and hereby authorizes the filing g d such financing statements,or to execute and deliver such certificates of title,ndices or admowiedgemsnt or other instruments in form setlatactory to Lessor rmcessary or appropriate to evidence such security interest. Lessee at its expense will proted and defend Lessor's security interest in the Equipment and WE keep the Equipment free and dew of any and all dairts,liens,encumbrances and legal processes however and wherever arising. Description of UaHiSerissh w (1)New WRIM Caterpillar Track-Type Tractor AGN01863 Lessee confirms that it has an immediate reed for,and expects to make immediate use of,substantially all the Equipment,which need is not temporary or expected to diminish ging the tern of Mie Agreement,The Equipment will be used by Lessee for the purpose of Worming one or more of Lessee's governmental functions consistent with the scope of Leesae s authority y and not in any bade or business combed on by a person other that Losses. & WARRAMTIM LESSOR HAS NOT MADE AND DOES NOT MAKE ANY WARRANTY,REPRESENTATION OR COVENANT OF ANY KIND,EXPRESS OR IMPLIED, AS TO THE EQUIPMENT. AS TO LESSOR,LESSEE'S LEASE AND PURCHASE OF THE EQUIPMENT SHALL BE ON AN"AS IS,AND"V ERE IS"BASIS AND'WITH ALL FAULTS".Lessee shell enforce ori warranties,agreements"repr�tabons,d any,with regard to the Equipment against Uro makes d such warranties Except pursuant to Sun wrrendrtwtt as Provided herein,nes Pwaon is authorised to waive or aka any term or mon of Urs Agreement. 4, NONAPPROPRIA71011 Losses eavenents and represents to Lessor that(A)Lessee will,to the extern permitted by State law include in its budget for each surceeselve fiscal yew during the tart of this Agreement a suAfdort artwunt to pemrt Lessee to discharge d of tb obligations heraundw,(b)Less"has btdgated Sud has eye"for the current fiscal year sutfident funds to comply with ds obligations under it=Agraartent and(c)them we no circumstances presently af►ectirg Lessee that paid reasonably be expected to adversely aged As ablity to budget funds for the Payment at suns due hereunder Notwithstanding any provision Of the Agrsarthwt to the contrary,Lessor and L.emew agree that in Ue avant that prior to the comnierharnent or any of Lessee's fiscal years Lessee does not have su ldent funds appropriated to make the Paymem due herounder for said fiscal yew,Lessee she/have to option of terminating this Agresrrwt as of the dame of the carrrenccemant of such resat yew by giving Lessor sixty (60)days prior Suiten notice of do intent to carved Ura Agreement.No lata than the last day of the tat fiscal yew for whidh approprieWrs were MOW for the Payments due hemunder(the-Rslwn Dela"),1.06644,"rob"to Lessor cell,but not less than all,of the EquiprrwM,at Lessees sole expense,in acurcfwoe with Pwagrapit h8 and thus Agreement shall terminate on the Retum Delo wtlhad penalty or expense to Leasee and Lessors shah not be obligated to pay the Lease Payments beyond such fisc yew, provided,that Lessee shall pay all Leese Payments and other Payments for which morays have been appropriated or are Otherwise aysuifatte,provided further,that Lessee shell pay nwrdko monih rent at the rate set by lessor for each north or part tharsd that Lessee falls to return the Equipment. To the extent lawful and penned by public pokey,Lessee agrees 4 will not temrnats this Agreemert under the provisions of this Paragraph 4 it any tads am appropriated to 4 or by 4 for the acquisition,retention or op0rabon of the Equipmhent or other equipment perfontwg functions similar to the Equipment for the fisc year in which temrrtabon ocaxrs or the nerd succeeding fisc yew. � vc.e..ac;+sa „rrn.�.o%uaw.n ne7 IL TAX WARRANTY.Lessee is validly existing as a body corporate and politic and public instrumentality of the State with the power and authority to enter into this Agreement and to cry out its obligations hereunder and the transactions contemplated hereby. Lessee shall,at all times,do and perform all acts and things necessary and within its control in order to assure that the interest component of the Lease Payments received by the Lessor shalt,for the purposes of Federal income taxation,to excluded from the gross income of the Lessor and shad not take or permit any act or thing that could cause the interest oomponent of the Lease Payments received by the Lessor to be included in the gross income of the Lessor for the purposes of Federal income taxation. The Equipment wig not be used in any trade or business carried on by a person other than Lessee. Lessee wig report this Lease Purchase to the internal Revenue Service by fling Form 8038G,80380 or 8038 wtachever is applicable. Failure to do so will cause the agreement to lose its tax exempt status. Lessee agrees that if the appropriate form is not filed,the interest rate will be adjusted to the equivalent taxable interest rale. 6. ASSIGNMENT.Lessee may not,without Lessors written consent,by operation of law or otherwise,assign,transfer,pledge,hypothecate or otherwise dispose of its right, title and interest in and to this Agreement and the Equipment and/or grant or assign a security interest herein,in whole or in part. Lessor may not transfer,seg,assign, pledge,hypothecate,or otherwise dispose of its right,fife and interest in and to this Agreement and the Equipment and/or grant or assign a security interest herein,in whole or in part 7. INDEMNITY.To the extent permitted bylaw,Lessee assumes liability for,agrees to and does hereby indemnify,protect and hold harmless Lessor and its agents, employees,officers,directors,subsidiaries and stockholders from and against any and all liabilities,obligations,losses,damages,injuries,daims,demands,penalties, actions,costs and expenses(inducing reasonable attamey s fees),of whatsoever kind and nature,arising out of the use,condition(including,but not limited to,latent and other defects and whether or not discoverable by Lessee or Lessor),operation,ownership,selection,delivery,storage,leasing or return of any item of Equipment,regardless of where,how and by whom operated,or any failure on the part of Lessee to accept the Equipment or otherwise to perform or comply with any conditions of this Agreement. The indemnities contained in the Paragraph shall continue in full force and effect notwithstanding the termination of this Agreement.Lessee is an independent contractor and nothing contained in this Agreement shall authorize Lessee or any other person to operate or use any Equipment so as to incur any obligation on behalf of Lessor or impose any liability on Lessor. Nothing in this Agreement Is intended not should any provision of this Agreement be construed to,limit,waiver,abridge or otherwise modify any rights,claims,or causes of action that the Lessee may have against any person or entity other than Lessor, 6, LOSS AND DAMAGE.Lessee shall bear the entire risk of loss,theft,destruction or damage to the Equipment or any part thereof from any cause whatsoever.No loss, theft,destruction or damage of the Equipment shall relieve Lessee of the obligation to make Lease Payments or to perform any obligation owing hereunder.In the event of loss,theft,destruction or damage of any kind to any tem of the Equipment,Lessee shall immediately notify Lessor and,at the option of Lessor,shall:(a)place the same in good repair,working order and condition(ordinary wear and tear excepted);or(b)replace the same with like equipment in good repair,working order and condition(ordinary wear and tea excepted).The'net proceeds'(as defined in the last sentence of this Paragraph)of any insurance recovery shall be applied to clause(a)or(b)as provided above unless an Event of Default shall have occurred and be continuing M which case the net proceeds shall be paid to Lessor to the extent of,and applied to the amount due and payable to Lessor under this Agreement Any net proceeds remaining after application of net proceeds in accordance with the preceding sentence shall be paid to,and belong to,Lessee. if the net proceeds of any insurance recovery are insufficient to pay in full for the repair,restoration or replacement of the Equipment,Lessee shall either complete the work to the satisfaction of Lessor,and pay any costs in excess of the net proceeds without any daim for reimbursement or credit from Lessor or pay the then applicable purchase price for the Equipment(as determined by Lessor according to its usual and customary manner)plus all Payments then due and owing hereunder."Net proceeds"shall mean the amount remaining from the gross proceeds of any insurance claim or condemnation award after deducting all expenses(including reasonable attomeys'fees)incurred in the collection of such daim or award. 4. INSURANCE,Lessee agrees to keep the Equipment insured to protect all interests of Lessor,at Lessee's expense,for such risks,in such amounts,in such forms and with such companies as Lessor may require,including but not limited to fire and extended coverage insurance,explosion and collision coverage,and personal liability and property damage liability insurance.Lessor may(but shall not be obligated to)insure the Equipment at the expense of Lessee.Any insurance policies relating to loss or damage to the Equipment will name Lessor as loss payee as its interests may appear and the proceeds may be applied toward the replacement or repair of the Equipment or the satisfaction of the Payments due hereunder.Any such policies shah contain a provision that they may not be cancelled or the coverage reduced without thirty(30)days prior written notice to Lessor.Any liability insurance policies will name Lessee and Lessor as co-insured and the proceeds shad be applied first to Lessor to the extent of its liability,if any,and the balance to Lessee.Lessee shag furnish certificates,policies or endorsements to Lessor as proof of such insurance.Lessee hereby appoints Lessor as Lessee's attomey-in-fact to make claim for,receive payment of and execute or endorse all documents,checks or drafts for loss or damage or return premiums under any insurance policy issued on the Equipment and hereby assigns to Lessor all of its right,title and interest in and to such insurance policies and the proceeds thereof.If Lessee is self-insured with respect to equipment such as the Equipment,Lessee shy maintain an actuarially sound self-insurance program in form satisfactory to Lessor and shag provide evidence thereof in form and substance satisfactory to Lessor 10. TAXES,MAINTENANCE AND INSPECTION.The parties to this Agreement contemplate that the Equipment will be used for a governmental or proprietary purpose of Lessee and,therefore,that the Equipment will be exempt from all taxes presently assessed and levied with respect to personal property.Nevertheless,if the use,possession or acquisition of the Equipment is determined to be subject to taxation,Lessee shall pay when due all taxes and goverrnmenntaf charges assessed or levied against or with respect to the Equipment.Lessee agrees to use,operate and maintain the Equipment in accordance with all laws,regulations and ordinances and in accordance with the provision of any policies of insurance covering the Equipment,and shalt not rent the same or permit the sane to be used by anyone other than Lessee or Lessee's employees.Lessee agrees to keep the Equipment in good repair,working order and condition(ordinary wear and tea excepted)and house the same in suitable shelter,and to permit Lessor or its assigns to inspect the Equipment at any time and to otherwise protect its interests therein.If any Equipment is customarily covered by a maintenance agreement,Lessee will furnish Lessor with a maintenance agreement by a party reasonably satisfactory to Lessor.No maintenance or other service for the Equipment will be provided by Lessor.Wiithout the prior written consent of Lessor,Lessee shall not make any alterations,modifications or attachments to the Equipment that cannot be removed without materially,damaging the functional capabilities or economic value of the Equipment.In the event the Equipment is returned to Lessor,the Lessee,at its sale cost and expense,and at the request of Lessor,wig remove all alterations,modifications and attachments,and repair the Equipment as necessary to return the Equipment to the condition in which it was furnished,ordinary wear and teed and pemritted modifications excepted.AN replacement parts shall be free and dear of liens of others,and she# become pat of the Equipment and subject to the terms hereof. 11. LATE PAYMENT'S AND PERFORMANCE OF LESSEE'S OBLIGATIONS BY LESSOR.If(a)any Payment other than a Lease Payment is not paid when due or(b) Lessee falls to perform any of its obligations hereunder and Lessor performs the same for the account of Lessee and incurs expenses,costs,penalties or liabilities in so doing ("Reimbursable Expenses"),Lasses shad pay interest on such Payment from the date due and,with respect to the Reimbursable Expenses,from the dale incurred,in each case unt#paid,at the rata of eighteen(18%)peroent per annum(or,if such rate is in excess of the maximum rate permitted by law,the maximum rate permitted by law). 12. DEFAULT,The following shall constitute an event of default under this Agreement,and the terms"Event of DefsW and"defautr shad include,whenever they are used in this Agreement,the following: (a)subject to Paragraph 4 hereof,failure by Lessee to pay any Lease Payment or any dither Payment required to be paid when due and such failure continues for ten(10)days after the due date thereof,(b)Lessee fags 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 Lassa;(c)the discovery by Lessor that any statement,representation or warra rely made by Lessee in this Agreement or any writing ever delivered by Lessee pursuant hereto or in connection herewith is false.rnisleading,or erroneous in any material respect;(d)any determination by the United States Internal Revenue Service that the portion of the Payments Instituting"interest'is includible in the gross income of Lessor for Federal income tans purposes,or(e)the filing of a petition in bankruptcy by or against Lessee,or failure of Lessee promptly to lift any execution,garnishment,or attachment of such consequences as wound impair the ability of Lessee to carry on its governmental functions,or assignment by Lessee for the benefit of creditors,or the entry by Lessee into 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. 13. REMEDIES,Whenever any Event of Default shall have occurred,Lessor shall have the right,at its option and without any further demand or notice,to take one or any combination of the following remedial steges;(a)Lessor,may declare all Lease Payments due or to become due during the fiscal year in which the Event of Default occurs to be immediately due and payable by Lessee:(b)Lessor may repossess any or all of the Equipment by giving Lessee written notice to deliver the Equipment to Lessor in the manner provided in Paragraph 18,or in the event Lessee fats to do so within ten(10)days alter receipt of such notice,and subject to all applicable laws,Lessor may enter .'ivGT?%vtlaH<r`*Yn:2s#,i xta:'!Jie:T upon Lessee's premises where the Equipment is kept and take possession of the Equipment and charge Lessee for costs incurred in repossessing the Equipment,including reasonable attorneys'fees.Lessee hereby expressly waives any damages occasioned by such repossession.Notwithstanding the fad that Lessor has taken possession of the Equipment,Leases shag continue to be responsible for the Lease Payments due during the fiscal year then in effect;(c)if Lessor temnirnetes this Agreement and takes posseaston and disposes of the Equipment or any portion thereof.Lessor shad apply the proceeds of any such disposition to pay the following items in the following order.(i) all casts(inducting,but not limited to,attorney*'fees)incurred in securing possession of the Equipment;(h)all expenses incurred in completing the disposition of the Equipment:(iii)any setas or transfer taxes;(tv)all casts and expenses incurred by Lessor to return the Equipment to the condition required by Paragraph 18 hereof,;and(v)all Payments whether dura or due in the future hereunder.Any disposition proceeds remaining after these disbursements have been made shag be paid to Lessee.In addition, Lessor may exercise any other right remedy or privilege that may be"able to Lessor under applicable taw or,by appropriate court scow at law or in equity,Lessor may entotce any of Lessee's obligations hereunder. Lessor's rights and ramadies are cumulative and may be exercised concurrently or separately.No such right or remedy is exclusive of any other nght or remedy permitted by this Agreement or by law or in equity. 14. NOTICES.For the purpose of this Agreement any notices required to be given,shag be given to the parties hello in writing and by certified mag at the address herein set forth,or to such other addresses as each party may substihAe by notice to the other.which notice shag be effective upon its recefpL IS. DEUVERY;TiTM Lessors has advised Lessor of ft desire to leant the Equipment,the cost ofthe Equipment,the expected delivery date and the desired lease terms for the Equipment.Lessee shad order such Equipment and shag cause such Equipment to be delivered pursuant to Lesses's directions.Lessor shag have no fiabiNty to Lessee,or to any other person for transportation,delivery,or installation of the Equipment.Lessee shah bear the tisk of loss with rasped to any Equipment. Notwithstanding the designation of Caterpiler Financial Services Corporation as Lessor,Caterpillar Financial Services Corporation shall not own the Equipment. Unless applicable law requires to the contrary,legal He to the Equipment,inducing,if applicable,any software license component thereof shall,so long as an Evert of Default or the teminaeonn of this Agreement pursuit to Paragraph 4 hereof has not occurred,and only as provided by liar,is in Lessee.Upon the occurrence of an Evert of Default or termination of this Agreement pursuant to Paragraph 4 hereof,fug and unencumbered legal title to the Equipment shalt pap to the Lessor without the necessity of further action by the parties hereto,and the Lessee shag have no further interest therein.In connection with the reversion of tide to Lessor,Lessee shad exam"and deliver to Lessor such documents as Lessor may request to evidence the passage of Lessee's title and interest therein,and upon request by the Lessor,the Lessee shelf deliver possession of the Equipment to the Lessor at Lessees sole cost and expense and in the condition required by Paragraph 18 hereof. I& IVMSCELLANEOUS.Tits Agreement may not be modified,amended,altered or changed except by a written agreement signed by bath parties.in the evert any provision hereof shall be invalid or unenforceable,the remaining provisions hereof shelf remain in full force and effect This Agreement,together with exhibits,donstitutus the entire agreement between Lessee and Lessor and supersedes all prior and contemporaneous writings,understandings,agreements,solicitations,documents and representations, expressed or implied.Any terms and conditions of any purchase order or other documents submitted by Lessee in connection with this Agreement which are in addition to or inconsistent with the terms and conditions of this Agreement will not bre binding on Lessor and will not apply to this Agreement. 17. JURY TRIAL WAIVER.THE PARTIES TO THIS AGREEMENT HEREBY UNCONDITIONALLY WAIVE,IN A KNOWING AND INTENTIONAL MANNER,THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF,DIRECTLY OR INDIRECTLY,THIS AGREEMENT OR RELATED DOCUMENTS,ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER HEREOF OR ANY RELATED TRANSACTIONS, ANDiOR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN THEM. 18. RETURN OF EQLAPMENT.if Lassos is entitled to obtain possession of any Equipment or if Lessee is obligated at any time to return any Equipment,then(a)tide to the Equipment shad vest in Lessor immediately upon Lasso's notice thereof to Lessee,and(b)Lessee shad,at its sole expense and risk,immediately de4nstai,disassemble, pack,crate,insure and return the Equipment to Lessor(all in accordance with applicable industry standards)at any location in the continental United States selected by Lessor.Such Equipment shag be in the sane condition as when received by Lessee(ordinary wear and tear excepted),shad be in good operating order and maintenance as required hereby,shelf be free ard dear of any liens(except Lasso's lien)and shad comply with all applicable laws and regulations.Unit Equipment is returned as required above,all terms of this Agreement shad remain in fug force and effect including,without imitation,Lessee's obligation to pay Lease Payments and to insure the Equipment. 19. OTHER DOCUMENTS. in connection with the execution of this Agreement,Lessee shag cause to be delivered to Lessor(i)an Acceptance Certificate substantially in the form attached hereto as Attachment A;(it)a certified espy of Lessee's Authorizing Resolution substantially in the form attached hereto as Attachment B.(ifi)a Verification of Insurance substantially in the form attached hereto,(iv)an opinion of Lessee's counsel substantially in the fort attached hereto as Attachment C,(v)a farm 8038 G or 8038 GC as required under the Code,and(vi)any other documents or items required by Lessor. 20. APPLICABLE LAW. This Agreement shag be governed by and construed in accordance with the laws,excluding the laws relating to the choice of taw,of the State. Lessee: Lessor. CITY OF REDL.ANDS Caterpillar Financial Services Corporation Signature ' Signature: By. J Harrison By: Print Name Print Nana Tree: Mayer Title: ATTEST: L,a e C - L ri P e City Clerki-t SEP.;'?-200E3 1:57PM JOHNSON LIFT HYSTER SERVICE NO.964 P.2 CU r MEIt INFORMATION VERIFICATION In our gets b oaatieuo providlng timed aaaomec aetviom,We U d yom iedshn s oCedt:fadq�the t9lov tas ice. if any moo is tetooasot ar mbmft 01000 WIN ties aecarsry chmW below asd retvon thio item with year dMW docmimms to iddfft Plow�avisVr tbs Das PAvWy NWm sdddbbw. 1%mkyao b sdvi000*ryeser 000peesdm Tis belvw lI heoias bu beat ovhwad asd is saawaii to tbobest of sW im, 1sdp wl$ of aq se said. 'y *8150 LD T=AZEA)W CD:ANGU AMY TO ALL OF YOUR CONT AC 114()R FOA'U=CO3?MACT GMT? ALL CariT AtTd TJM CCMTRAC1'ONLY QM Iio�urma#fo�on_� miam bwe Qustomer l+ttmts: C[rV OY AYDIANDA Plgidaal A&kdm P.O.2=3086 RZDE.ANn96 C,9,XrMIM Addrsm 35 CAJOK ST. RZDLANM,CA 92"34M F4 t Lawiaa 18494 NWADA ST. RMX&M%CA 9U74 MN Bd3O4Ajj)M &derma fte r p 7 MUM Fad.ID#at 311 tt: tK Atom%Py►sbb Cme*4 Nims WA ftmec Silas Tsx Rift 7.75 mom pole:50l0 TM bak indaft eg sbio,mom' C7Nr L * Amt+-idt tie Clf j Limb?Yst_l4g X Tac AMW*m ftft Plwe bmilaft itym no&a west*. Hym min 10—pMw does s asrrad tis r be r+ettrsd wld yore Daft P*imy:.godmdMAN � ��� ■i—lief e�eyd b�C l[ieilie 1iiC ar,�grli� �it'teaeeWSaeiewC ��7��eateAeeepis�iso. aa o eo P a ebr'Lteeil4f� s 6 i•i�l P�bse�quse�p�f�b Ms mdr.plow ooerat Cd XWOMMA rw.r�rrr�s CA ME-31' u a mil 141 uncialJlmr serrkw tfmre CA*Ph�rla/ Frequently Asked Questions Option 1: Check or Money Orders via U.S. Option 1:Access AccountExpress Online Mail Just follow these easy steps: Regular U.S.Mail,send to:(NO Go to www.CatFinaneiaLcom correspondence) Select your country of residence Caterpillar Financial Services Corporation Click on the AccountExpress link. P.O. Box 100647 24 hours a day/7 days a week Pasadena,CA 91189-W7 Obtain Information such as: o Check Balances Overnight Mail,send to: o Calculate Payoffs JP Morgan Lockbox Processing o See Payment History Caterpillar Lockbox#100647 o Check Interest Paid 2710 Media Center Drive o Next Due Date Building 6; Suite 120 Los Angeles,CA 90065 Option 2: Call our Toll Free Customer United States Support Line. Cat FinanciaE—Customer Service Option 2:Direct Pav Automated Payment 1-800-651-0567 Just Follow these easy steps: Monday-Friday Go to www.CatFinancial.com 7 a.m.-6 p.m. CST Select your country of residence Click on the AccountExpress link Option 3:Pay online with AccountExpress Just follow these easy steps. Go to www.CatFinancial.cam Option ]:Access AccountExnress Online ° Select your country of residence Just follow these easy step: ° Click on the Account Express link Go to www.CatFinancial.com Select your country of residence Option 4: Wire Transfers Click on the AccountExpress link J.P. Morgan/Chase Manhattan ABA Routing#021-000021 Option 2: CaU our Toll Free Customer Account#910-2-469872 Support Line Cat Financial-Customer Service 1-800-651-0567 Monday-Friday Call 1-800-248-4228 7 a.m.-6 p.m.CST Monday-Friday 7 a.m.-6 p.m. CST Payments are not considered paid until received All payments rerdved after the due date mus?Include the late rhargG Posta!Delays do pat result In a waiver of the late charges Therejare,please allow adequate time jar mail servlre i.IyO'n.,. W1224tl.J.II M:'C SEP.22.2008 1:57PM JOHNSON LIFT HYSTER SERVICE NO.964 P.1 AWACHMRNT A ACCEP'TAf4CE CERTTFICATIC This Acceptance Certificate is executed and delivered by CITY OF REDLANDS("L ")�conncx tion��the Ootiemmctttsl Equipment l.e&WPurchase nQrecnmt dated as of October 21, 2008 (the°A nt°)� in Geon Losses and he G im nt Financial Services Corporation I"Lessor"), rP Lowe horuby certifies that: I.Capitalized terms used herein and not deBaod heroin shall halm the memtinip assigned to them in the,kgreement. 2.The E:quipaw, I NEW D7RUXR Caterpillar Track Type Tractor AGN01863 has been delivered to it,and has been inn hy it,and is In Scrod wotidnR order sad conditioa and is of cite size,design,capacity and manufacture selected by it and meets the previsioonnacof the purchase orders with mspaat thereto. Los hereby confums it irrevocably accepts said im=of Equipment"as-is,where-ia" for all purposes of the Agrecmcm as of the Acceptance Date set forth below. 3.The Equipmoat will be located at :10498 MADA ST. REDLA"S. CA 92314 SM BERNARDIFO COUNTY 4.The Acceptance Dote is July 151 2008 Date& October 21, 2008 I.csueo; CITY OF agl)D l— / i f' By:^JOW Harrison Print Nanus Title: Mayor Attest: y Lor�iePo z City Clerk RESOLUTION NO. 6764 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF REDLANDS APPROVING A GOVERNMENTAL EQUIPMENT LEASE-PURCHASE AGREEMENT WITH CATERPILLAR FINANCIAL, SERVICES CORPORATION WHEREAS, the City of Redlands (the "City"), a municipal corporation of the State of California (the "State"), is authorized by the laws of the State to purchase, acquire and lease personal property for the benefit of the City and its inhabitants and to enter into contracts with respect thereto; and WHEREAS, in order to acquire such equipment, the City proposes to enter into a lease- purchase transaction pursuant to that certain Governmental Equipment Lease-Purchase Agreement (the "Agreement") with Caterpillar Financial Services Corporation, the form of which has been presented to the City Council of the City at its regularly scheduled meeting of October 21, 2008; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF REDLANDS AS FOLLOWS: Section 1. Approval of Documents. The form, terms and provisions of the Agreement and all other schedules and exhibits attached thereto are hereby approved in substantially the form presented at the City Council's meeting of October 21, 2008, with such insertions, omissions and changes as shall be approved by counsel of the City or other members of the City Council of the City executing the same, the execution of such documents being conclusive evidence of such approval; and the Mayor of the City who shall have the power to execute contracts on its behalf is hereby authorized and directed to execute, acknowledge, countersign and deliver the Agreement and all exhibits attached thereto, and the City Clerk of the City is hereby authorized to attest to the foregoing and affix the seal of the City to such documents. Section 2. Other Actions Authorized. The officers and employees of the City shall take all action necessary or reasonably required by the parties to the Agreement to carry out, give effect to and consummate the transactions contemplated thereby and to take all action necessary in conformity therewith, including, without limitation, the execution and delivery of any closing and other documents required to be delivered in connection with the Agreement. Section 3. No General Liability. Nothing contained in this Resolution, the Agreement, or any other instrument shall be construed with respect to the City as incurring a pecuniary liability or charge upon the general credit of the City or against its taxing power, nor shall the breach of any agreement contained in this Resolution, the Agreement, or any other instrument or document executed in connection therewith impose any pecuniary liability upon the City or any charge upon its general credit or against its taxing power, except to the extent that the payments payable under the Agreement are special limited obligations of the City as provided in the Agreement. I:AccICI k\Resolutions\6764.DoC t Section 4. Authorized Signatory. Following is the true name, correct title and specimen signature of the incumbent officer referred to in this Resolution. Name/ Title Signatu Jon Harrison, Mayor of the City of Redlands ADOPTED this 21st day of October, 2008. May of the City of Redlands ATTEST: City Jerk of C' y of Redlands I, Lorrie Poyzer, City Clerk of the City of Redlands, hereby certify that the foregoing resolution was duly adopted by the City Council of the City of Redlands at a regular meeting thereof held on the 21st day of October, 2008, by the following vote: AYES: Councilmembers Gilbreath, Gallagher, Aguilar, Bean; Mayor Harrison NOES: None ABSENT: None ABSTAIN: None Lorre Poyzer„ Jerk -2- VERIFICATION OF INSURANCE Lessor: Caterpillar Financial Services Corporation 2120 West End Avenue Nashville,TN 37203-0001 Lessee: CITY OF REDLANDS P.O.BOX 3005 REDLANDS,CA 92373-1505 Subject: Insurance Coverage Requirements 1.The above-named Lessor and Lessee have entered into Governmental Equipment Lease-Purchase Agreement dated as of- October 21, 2008 (the"Agreement").In accordance with the Agreement,Lessee has instructed the insurance agent named below: Company: Davis & Graeber Insurance Services Address: 470 E Highland Ave, PO Box 40 , Redlands, CA 92373 Phone No: ( 909 ) 793-2373 Agent's Name: Ross Jones or Roberta Reeves to issue: a.All Risk Physical Damage Insurance on the Equipment(as defined in the Agreement)evidenced by a Certificate of Insurance and Long Form Loss Payable Clause naming the Lessor and/or its Assignee,as loss payee. The Coverage Required:the aggregate purchase price for the Equipment. b.Public Liability Insurance evidenced by a Certificate of Insurance,naming the Lessor and/or its Assignee as Additional Insured, with a minimum of 51,000,000 per occurrence is required 2.Proof of insurance coverage will be provided to Lessor or its Assignee prior to the time the Equipment is delivered to Lessee. Lessee: CITY OF REDLANDS Signature: By: Tina T. Kundig Print Name Title: Finance Director/City Treasurer em`L IiGVL:&t61) iJ i9tltt m.12]f1i1111SC'1 BEST BEST & KMEGER ATTORNEYS AT LAW fND1AN W6..13 (760)588-2811 400 Capitol oi MaN,Suite 1660 (951)686-1450 IRVINE Sacramento,California 95814 — (949)263-2600 (916)325-4000 SAN DIEGO — (916)325-4010 Fax (619)525-1300 LOS ANGELES BBI4aw.corn WALNUT CREEK (213)617-8100 (925)977.3300 ONTARIO (909)989-8584 October 21, 2008 Caterpillar Financial Services Corporation 2120 West End Avenue Nashville, TN 37203-0001 Re: Governmental Equipment Lease-Purchase Agreement dated as of October 21, 2008 by and between the City of Redlands (the"City)and Caterpillar Financial Services Corporation(the"Lessor") Ladies and Gentlemen: We are acting as special counsel to the City of Redlands (the "City") and in such connection have reviewed proceedings taken by the City with respect to the execution and delivery by the City of the referenced agreement (the "Lease"). In such capacity we have examined the record of proceedings submitted to us relative to the execution and delivery of the Lease, a resolution adopted by the City Council of the City on October 21, 2008 (the "Resolution's and such other documents as are in our opinion necessary to enable us to express an informed opinion with respect to the following matters. Unless otherwise indicated, terms used herein with initial letters capitalized have the respective meanings given to such terms in the Agreements. We are of the opinion that: (1) City is a general law city duly organized and legally existing as a political subdivision under the Constitution and laws of the State of California (the "State") with full power and authority to enter into the Lease and to carry out its obligations thereunder and the transactions contemplated thereby; (2) The Lease has been duly authorized, executed and delivered by City and, assuming due authorization, execution and delivery thereof by Lessor, constitutes the legal, valid and binding obligation of City, enforceable against City in accordance with its terms, subject to any applicable bankruptcy, insolvency, moratorium or other laws or equitable principles affecting the enforcement of creditors' rights generally, and does not violate any judgment, order, law or regulation applicable to City of which we have knowledge; RVPUB\KSNO W1753246.I BEST BEST & KRIEGER ATPOALNM AT LAW Caterpillar Financial Services Corporation October 21, 2008 Page 2 (3) To the best of our knowledge after due inquiry, no litigation or proceeding is pending or threatened to restrain or enjoin the execution, delivery or performance by City of the Lease or in any way to contest the validity of the Lease, to contest or question the creation or existence of City or its governing body or the authority or ability of City to execute or deliver the lease or to comply with or perform its obligations thereunder. To the best of our knowledge after due inquiry, there is no litigation pending or, to the best of my knowledge, threatened that seeks to our could restrain or enjoin City from annually appropriating sufficient funds to pay the Lease Payments (as defined in the Lease) or other amounts contemplated by the Lease; and (4) The authorization, approval and execution of the Lease and all other proceedings of City relating to the transactions contemplated thereby have been performed in accordance with all applicable open meeting, public records, public bidding and all other laws, rules and regulations of the State. The appropriation of moneys to pay the Lease Payments corning due under the Lease does not and will not result in the violation of any constitutional, statutory or other limitation relating to the manner, form or amount of indebtedness which may be incurred by City. We do not express herein any opinion as to any matter governed by any laws other than the laws of the State of California or the laws of the United States of America. This opinion is solely for your benefit and may not be relied upon or used by, circulated, quoted, or referred to, nor may copies hereof be delivered to, any other person, without our prior written approval. We disclaim any obligation to supplement this opinion letter with regard to events occurring or coming to our attention after the date hereof. Very truly yours, RVPUB\KSNOW\753296.I CATERPILLAR FINANCIAL,SERVICES CORPORATION JOHNSON MACHINERY CO. 800 EAST LA CADENA DRIVE P.O.BOX 351 RIVERSIDE CA 92502-0351 Reference: CITY OF REDLANDS We are requesting a copy of the minutes of the appropriation meeting during which the funds for this deal were allocated. A copy of this information is necessary to complete the documentation package and to fund the deal. Your ability to return a complete package will ensure timely payment to you. Thank you for your assistance. CATERPILLAR FINANCIAL SERVICES CORPORATION DOCUMENTATION DEPARTMENT h v ATTACHMENT D PAYMENT SCHEDULE To Governmental Equipment Lease-Purchase Agreement dated as of October 21 2008 between and CITY OF REDLANDS � Caterpillar Financial Services Corporation Payment Dates Payment Numbers Payment Amounts Due 1 _ _ 2 _ 60 5 32,482.60 FINAL PAYMENT OFS 5,681.38 $ 98,752.00 CITY OF REDLANNDS (Lessee) Caterpillar Financial Services Corporation , (Lessor) Signature -�/'�� ,,1,'! // Signature Name(711T) Jon Harrison fJ Name(PRINT) Title Mayor Title Date October 21, 2008 Date Attest:_ Lo ie Poy e -ty Clerk