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HomeMy WebLinkAboutCC Resolution 8332 (Financing of PD Radio System)EXHIBIT F RESOLUTION NO. 8332 A RESOLUTION AUTHORIZING THE SIGNING OF A CONTRACT, LEASE OR AGREEMENT THE CITY COUNCIL OF THE CITY OF SAN RAFAEL RESOLVES as follows: The MAYOR and CITY CLERK are authorized to execute, on behalf of the City of San Rafael, a contract, lease or agreement - LEASE AGREEMENT WITH GE CAPITAL PUBLIC FINANCE, INC., FOR FINANCING OF POLICE RADIO SYSTEM, SUBJECT TO APPROVAL OF CITY ATTORNEY, a copy of which is hereby attached and by this reference made a part hereof. I, JEANNE M. LEONCINI, Clerk of the City of San Rafael, hereby certify that the foregoing resolution was duly and regularly intro- duced and adopted at a Reaular City held on Tuesdav meeting of the City Council of said the 22nd day of January 1991 , by the following vote, to wit: AYES: COUNCILlIE14BERS: Boro, Breiner, Shippey, Thayer & Mayor Mulryan NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None J N LEONCINI, City Clerk EEUF-MSTR 8/90 RAFAEL.mrg LEASE WITH OPTION TO PURCHASE AGREEMENT Between GE CAPITAL PUBLIC FINANCE, INC., Lessor and The City of San Rafael, as Lessee Dated as of January 21, 1991 THIS LEASE WITH OPTION TO PURCHASE AGREEMENT dated as of January 21, 1991 (the Lease), by and between GE Capital Public Finance, Inc., a corporation duly organized and existing under the laws of the state of Delaware as lessor (Lessor) whose address is Three Capital Drive, Eden Prairie, Minnesota 55344; and the The City of San Rafael, a political subdivision of the state of California as lessee (Lessee), whose address is 1400 Fifth Avenue, San Rafael, CA 94915: WITNESSETH: WHEREAS, Lessee is authorized by law to acquire such items of personal property as are needed to carry out its governmental functions, and to acquire such personal property by entering into lease with option to purchase agreements; and WHEREAS, Lessee has determined that it is necessary for it to acquire under this Lease certain items of personal property described herein as Equipment; and WHEREAS, Lessor is willing to acquire such items of Equipment and to lease them to Lessee pursuant to this Lease; NOW THEREFORE, in the joint and mutual exercise of their powers, and in consideration of the mutual covenants herein contained, the parties hereto recite and agree as follows: ARTICLE I DEFINITIONS AND EXHIBITS Section 1.1. Definitions. Unless the context otherwise requires, the terihs defined in this Section shall, for all purposes of this Lease, have the meanings herein specified. Closing Date: The date upon which Lessor deposits with the Escrow Agent for credit to the Equipment Acquisition Fund the amount specified in Section 2.3. Contractor: Each of the manufacturers or vendors from whom Lessee (or Lessor at Lessee's request) has ordered or will order or with whom Lessee (or Lessor at Lessee's request) has contracted or will contract for the manufacture, delivery and/or installation of the Equipment. Equipment: The personal property described in the attached Exhibit A which is being leased with option to purchase by Lessee pursuant to this Lease. Equipment Acquisition Fund: The fund so designated which is to be established by the Escrow Agent under the Escrow Agreement. Equipment Cost: With respect to each item of Equipment subject to this Lease, the price therefor required to be paid to the Contractor. Escrow Agent: in acting under and pursuant to the Escrow Agreement. Escrow Aqreement: The Escrow Agreement of even date herewith by and among the Escrow Agent, Lessor and Lessee. Fiscal Year: The twelve month fiscal period of Lessee which commences on July 1 in every year and ends on the following June 30. Independent Counsel: An attorney duly admitted to the practice of law before the highest court of the State who is not a full-time employee of Lessor or Lessee. Interest: The portion of any Rental Payment designated as and comprising interest as shown in the attached Exhibit B. Net Proceeds: Any insurance proceeds or condemnation award, paid with respect to the Equipment, remaining after payment therefrom of all expenses incurred in the collection thereof. Non -appropriation: The failure of the governing body of The City of San Rafael to appropriate money for any Fiscal Year of Lessee sufficient for the continued performance of this Lease by Lessee, as evidenced by the passage of an ordinance or resolution specifically prohibiting Lessee from performing its obligations under this Lease, and from using any moneys to pay the Rental Payments due under this Lease for a designated Fiscal Year and all subsequent Fiscal Years. Pavment Date: The date upon which any Rental Payment is due and payable as provided in Exhibit B. Permitted Encumbrances: As of any particular time: (i) liens for taxes and assessments not then delinquent, or which Lessee may, pursuant to the provisions of Section 7.3 hereof, permit to remain unpaid, (ii) this Lease and amendments hereto, (iii) Lessor's interest in the Equipment, and (iv) any mechanic's, laborer's, materialmen's, supplier's or vendor's lien or right not filed or perfected in the manner prescribed by Law, other than any Lien arising through a Contractor or which Lessee may, pursuant to Article VIII hereof, permit to remain unpaid. Principal: The portion of any Rental Payment designated as principal in the attached Exhibit B. Purchase Option Price: With respect to the Equipment, as of the Payment Dates specified in the attached Exhibit B, the amount so designated and set forth opposite such date_ Purchase Option Price: With respect to the Equipment, as of the Payment Dates specified in the attached Exhibit B, the amount so designated and set forth opposite such date. Rental Payment: The payment due from Lessee to Lessor on each Payment Dated during the Tenn of this Lease, as shown on Exhibit B. Specifications: The bid specifications and/or purchase order pursuant to which Lessee has ordered the Equipment from a Contractor. State: The State of California. State and Federal Law or Laws: The Constitution and any law of the State and any rule or regulation of any agency or political subdivision of the State; and any law of the United States, and any rule or regulation of any federal agency. Tenn of this Lease or Lease Tenn: The period during which this Lease is in effect as specified in Section 4.1. Section 1.2. Exhibits. The following Exhibits are attached to and by reference made a part of this Lease: Exhibit A: A description of the Equipment being leased by Lessee pursuant to this Lease, including the serial number thereof which shall be inserted when available. Exhibit B: A schedule indicating the date and amount of each Rental Payment coming due during the Lease Term, the amount of each Rental Payment comprising Principal and Interest, and the price at which Lessee may exercise its option to purchase Lessor's interest in the Equipment in accordance with Article X. Exhibit C: A Certificate of Acceptance of Lessee indicating that the Equipment has been delivered and installed in accordance with the Specifications, and has been accepted by Lessee. Exhibit D: A form of Officer's Certificate of Lessee certifying certain facts with respect to Lessee and the Lease. Exhibit E: An opinion of counsel to Lessee as to the powers of Lessee; the validity, execution and delivery of this Lease and various related documents; the absence of litigation; and related matters. Exhibit F: A form of resolution of the governing body of Lessee relating to the Lease and, if applicable, certain federal tax matters. ARTICLE II REPRESENTATION, COVENANTS AND WARRANTIES Section 2.1. Representations. Covenants. and Warranties of Lessee. Lessee represents, covenants and.warrants as follows: (a) Lessee is a municipal corporation and political subdivision of the State, duly organized and existing under the Constitution and laws of the State. (b) Lessee is authorized under the Constitution and laws of the State to enter into this Lease and the transactions contemplated hereby, and to perform all of its obligations hereunder. (c) The officer of Lessee executing this Lease has been duly authorized to execute and deliver this Lease under the terms and provisions of a resolution of Lessee's governing body, or by other appropriate official action. (d) In authorizing and executing this Lease, Lessee has complied with all public bidding and other State and Federal Laws applicable to this Lease and the acquisition of the Equipment by Lessee. (e) Lessee will not pledge, mortgage or assign this Lease, or its duties and obligations hereunder to any other person, firm or corporation except as provided under the terms of this Lease. (f) Lessee will use the Equipment during the Lease Term only to perform the essential governmental functions. (g) Lessee will take no action that would cause the Interest portion of the Rental Payments to become includible in gross income of the recipient for federal income tax purposes under the Internal Revenue Code of 1986 (the Code) and Treasury Regulations promulgated thereunder (the Regulations), and Lessee will take and will cause its officers, employees and agents to take all affirmative actions legally within its power necessary to ensure that the Interest portion of the Rental Payments does not become includible in gross income of the recipient for federal income tax purposes under the Code and Regulations. (h) Upon delivery and installation of the Equipment, Lessee will provide to Lessor a completed and executed copy of a Certificate of Acceptance attached hereto as Exhibit C. (i) Upon the execution of this Lease, Lessee will provide to Lessor an opinion of its legal counsel in the form attached hereto as Exhibit E and an Officer's Certificate in the form attached hereto as Exhibit D. (j) Lessee will submit to the Secretary of the Treasury an information reporting statement at the time and in the form required by the Code and the Regulations. (k) Lessee will cause a resolution substantially in the form attached hereto as Exhibit F to be adopted by its governing body. Section 2.2. Representations. Covenants and Warranties of Lessor. Lessor represents, covenants and warrants as follows: (a) Lessor is a corporation duly organized, existing and in good standing under and by virtue of the laws of the state of Delaware, and is duly qualified and in good standing as a foreign corporation authorized to transact business in the State; has power to enter into this Lease; is possessed of full power to own and hold real and personal property, and to Lease the same; and has duly authorized the execution and delivery of this Lease. (b) Neither the execution and delivery of this Lease, nor the fulfillment of or compliance with the terms and conditions thereof, not the consummation of the transactions contemplated thereby, conflicts with or results in a breach of the terms, conditions or provisions of any restriction or any agreement or instrument to which Lessor is now a party or by which Lessor is bound, constitutes a default under any of the foregoing, or results in the creation or imposition of any lien, charge or encumbrance whatsoever upon any of the property or assets of Lessor, or upon the Equipment except Permitted Encumbrances. Section 2.3. Escrow Aqreement. Immediately following the execution and delivery of this Lease by Lessor and Lessee, Lessor and Lessee agree to execute and deliver and to cause Escrow Agent to execute and deliver the Escrow Agreement. This Lease shall take effect only upon execution and delivery of the Escrow Agreement by the parties thereto. Within ten (10) business days after execution of this Lease and the Escrow Agreement and the delivery of the legal opinion by Lessee pursuant to Section 2.1 hereof, Lessor shall deposit or cause to be deposited with Escrow Agent for credit to the Equipment Acquisition Fund the sum of $ , which shall be held, invested and disbursed in accordance with the Escrow Agreement. ARTICLE III LEASE OF EQUIPMENT Section 3.1. Lease. Lessor hereby leases the Equipment to Lessee, and Lessee hereby leases the Equipment from Lessor, upon the terms and conditions set forth in this Lease. Section 3.2. Possession and Eniovment. Lessor hereby covenants to provide Lessee during the Term of this Lease with the quiet use and enjoyment of the Equipment, and Lessee shall during the Term of this Lease peaceably and quietly have and hold and enjoy the Equipment, without suit, trouble or hindrance from Lessor, except as expressly set forth in this Lease. Lessor will, at the request of Lessee and at Lessee's cost, join in any legal action in which Lessee asserts its right to such possession and enjoyment to the extent Lessor lawfully may do so. Section 3.3. Lessor Access to Eouipment. Lessee agrees that Lessor shall have the right at all reasonable times to examine and inspect the Equipment. Lessee further agrees that Lessor shall have such rights of access to the Equipment as may be reasonably necessary to cause the proper maintenance of the Equipment in the event of failure by Lessee to perform its obligations hereunder. ARTICLE IV TERM OF THE LEASE Section 4.1. Lease Term: This Lease shall be in effect for a Term commencing upon its date of execution and ending as provided in Section 4.6. Section 4.2. Termination by Lessee. In the sole event of Non-appropriation, Lessee shall have the right to terminate this Lease, in whole but not in part, at the end of any Fiscal Year of Lessee, in the manner and subject to the terms specified in this Section and Sections 4.4 and 4.5. 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 sixty (60) days prior to the end of such Fiscal Year, and shall notify Lessor of any anticipated termination. In the event of termination of this Lease as provided in this Section, Lessee shall deliver possession of such Equipment to Lessor in accordance with Section 12.3, and shall convey to Lessor or release its interest in the Equipment within ten (10) days after the termination of this Lease. Section 4.3. Intent to Continue Lease Term: Appropriations. Lessee presently intends to continue this Lease for its entire Term and to pay all Rental Payments specified in Exhibit B. Lessee's will include in the budget request for each Fiscal Year the Rental Payments to become due in 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 the Rental Payments coming due therein. Lessee's reasonably believes that moneys in an amount sufficient to make all such Rental Payments can and will lawfully be appropriated and made available for this purpose. Section 4.4. Effect of Termination. Upon termination of this Lease as provided in Section 4.2, Lessee shall not be responsible for the payment of any additional Rental Payments coming due with respect to succeeding Fiscal Years, but if Lessee has not delivered possession of the Equipment to Lessor in accordance with Section 12.3 and conveyed to Lessor or released its interest in the Equipment within ten (10) days after the termination of this Lease 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 thereafter coming due under Exhibit B which are attributable to the number of days after such ten (10) day period during which Lessee fails to take such actions and for any other loss suffered by Lessor as a result of Lessee's failure to take such actions as required. Section 4.5. Nonsubstitution. If this Lease is terminated by Lessee in accordance with Section 4.2, Lessee agrees not to purchase, lease or rent personal property to perform the same functions as, or functions taking the place of, those performed by such Equipment Group, 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 three hundred sixty (360) days; provided, however, that 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 Purchase Option Price as set forth in Exhibit B; or if or to the extent that the application of these restrictions would affect the validity of this Lease. Section 4.6. Termination of Lease Term. The Term of this Lease will terminate upon the occurrence of the first of the following events: (a) the termination thereof by Lessee in accordance with Section 4.2; (b) the exercise by Lessee of its option to purchase Lessor's interest in all Equipment Groups pursuant to Article X; (c) a default by Lessee and Lessor's election to terminate this Lease with 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 hereunder. ARTICLE V RENTAL PAYMENTS Section 5.1. Rental Pavments. Lessee agrees to pay Rental Payments during the Term of this Lease, in the amounts and on the dates specified in Exhibit B. All Rental Payments shall be paid to Lessor at its offices at the address specified in the first paragraph of this Lease, or to such other person(s) or entity(ies) to which Lessor has assigned such Rental Payments as specified in Article XI, at such place as such assignee may from time to time designate by written notice to Lessee. Lessee shall pay the Rental Payments exclusively from moneys legally available therefor, in lawful money of the United States of America, to Lessor or, in the event of assignment of the right to receive Rental Payments by Lessor, to its assignee(s). Interest shall accrue from the first day of the calendar month in which the Certificate of Acceptance is executed. Section 5.2. Current Expense. The obligations of Lessee under this Lease, including its obligation to pay the Rental Payments due with respect to the Equipment, in any Fiscal Year for which this Lease is in effect, 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 3 lawfully appropriated from time to time by or for the benefit of Lessee in the annual budget of the governing body of Lessee and the proceeds or Net Proceeds of the Equipment, to the payment of any Rental Payment or other amount coming due hereunder. Section 5.3. Interest Component. A portion of each Rental Payment is paid as and represents the payment of Interest. Exhibit B sets forth the Interest component of each Rental Payment. Section 5.4. Rental Payments to be Unconditional. Except as provided in Section 4.2, the obligation of Lessee to make Rental Payments or any other payments required hereunder shalt be absolute and unconditional in all events. Notwithstanding any dispute between Lessee and Lessor or any other person, Lessee shall make all Rental Payments and other payments required hereunder when due and shall not withhold any Rental Payment or other payment pending final resolution of such dispute nor shall Lessee assert any right of set-off or counterclaim against its obligation to make such Rental Payments or other payments required under this Lease. Lessee's obligation to make Rental Payments or other payments during the Lease Term shall not be abated through accident or unforeseen circumstances. However, nothing herein shalt be construed to release Lessor from the performance of its obligations hereunder; and if Lessor should fail to perform any such obligation, Lessee may institute such legal action against Lessor as Lessee may deem necessary to compel the performance of such obligation or to recover damages therefor. ARTICLE VI INSURANCE AND NEGLIGENCE Section 6.1. Liability Insurance. Unless self-insurance is provided by Lessee, as evidenced by a written certificate specifying the terms and amounts thereof delivered to Lessor, upon receipt of possession of Equipment, Lessee shall take such measures as may be necessary to ensure that any Liability for injuries to or death of any person or damage to or loss of property arising out of or in any way relating to the condition or the operation of the Equipment or any part thereof, is covered by a blanket or other general liability insurance policy maintained by Lessee. The Net proceeds of all such insurance shall be applied toward extinguishment or satisfaction of the liability with respect to which any Net Proceeds may be paid. Section 6.2. Property Insurance. Upon receipt of possession of Equipment, Lessee shall have and assume the risk of Loss with respect thereto. Unless self-insurance is provided by Lessee, as evidenced by a written certificate specifying the terms and amounts thereof delivered to Lessor, Lessee shall procure and maintain continuously in effect during the period when Lessee is required to make Rental Payments with respect thereto, all-risk insurance, subject only to the standard exclusions contained in the policy, in such amount as will be at least sufficient so that a claim may be made for the full replacement cost of any part thereof damaged or destroyed and to pay the applicable Purchase Option Price of the Equipment. Such insurance may be provided by a rider to an existing policy or under a separate policy. Such insurance may be written with customary deductible amounts. The Net Proceeds of insurance required by this Section shall be applied to the prompt repair, restoration, modification, improvement, replacement, or purchase of the Equipment by Lessee. Section 6.3. Workers' Compensation Insurance. If required by State law, and unless self-insurance is provided by Lessee, as evidenced by a written certificate specifying the terms and amounts thereof delivered to Lessor, Lessee shall carry worker's compensation insurance covering all employees on, in, near or about each Equipment, and upon request, shall furnish to Lessor certificates evidencing such coverage throughout the period when Lessee is required to make Rental Payments with respect thereto. Section 6.4. Requirements For All Insurance. ALL insurance policies (or riders) required by this Article shall be taken out and maintained with responsible insurance companies organized under the laws of one of the states of the United States and qualified to do business in the State, and shall contain a provision that the insurer shalt not cancel or revise coverage thereunder without giving written notice to the insured parties at least ten (10) days before the cancellation or revision becomes effective. All insurance policies required by Sections 6.1 and 6.2 shall name Lessee and Lessor as insured parties, and any insurance policy required by Section 6.3 shall name Lessee as insured party. Lessee shall deposit with Lessor policies (and riders) evidencing any such insurance procured by it, or a certificate or certificates of the respective insurers stating that such insurance is in full force and effect. Before the expiration of any such policy (or rider), Lessee shall furnish to Lessor evidence that the policy has been renewed or replaced by another policy conforming to the provisions of this Article, unless such insurance is no Longer obtainable in which event Lessee shall notify Lessor of this fact. Section 6.5. Lessee's Negligence. Lessee assumes all risks and liabilities, 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, in any manner arising out of or incident to any possession, use, operation, condition or storage of any Equipment by Lessee, whether such injury or death be with respect to agents or employees of Lessee or of third parties, and whether such property damage be to Lessee's property or the property of others. Lessee hereby assumes responsibility for and agrees to indemnify, protect, save and keep harmless Lessor from and against any all liabilities, obligations, losses, damages, penalties, claims, actions, costs and expenses (including reasonable attorney's fees) of whatsoever kind and nature, imposed on, incurred by or asserted against Lessor that in any way relate to or arise out of the possession, use, operation, condition or storage of any Equipment by Lessee, unless caused by Lessor or its agents, to the maximum extent permitted by law. Section 6.6. Damage to or Destruction of Equipment. if after receipt of possession of any Equipment by Lessee, such Equipment is lost, stolen, destroyed or damaged beyond repair, Lessee shall as soon as practicable after such event either: (i) replace the same at Lessee's sole cost and expense with a equipment of equal or greater value to the Equipment immediately prior to the time of the loss occurrence, such replacement equipment to be subject to Lessor's reasonable approval, whereupon the replacement shall be substituted in this Lease by appropriate endorsement; or (ii) pay the applicable Purchase Option Price of the Equipment as set forth on Exhibit B. Lessee shall notify Lessor of which course of action it will take within fifteen (15) days after the loss occurrence. If Lessee fails or refuses to notify Lessor within the required period, Lessor may, at its option, declare the Purchase Option Price applicable to the Equipment set forth on Exhibit B immediately due and payable, and Lessee shall be obligated to pay the same. The Net Proceeds of all insurance payable with respect to the Equipment shall be available to Lessee and shall be used to discharge Lessee's obligation under this Section. On payment of the Purchase Option Price, this Lease shall no Longer apply to such Equipment and Lessee thereupon shall become entitled to the Equipment AS 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 the Equipment shall not be subject to any lien or encumbrance created by or arising through Lessor. ARTICLE VII OTHER OBLIGATION OF LESSEE Section 7.1. Use; Permits. Lessee shall exercise due care in the installation, use, operation and maintenance of the Equipment, and shall not install, use, operate or maintain the Equipment improperly, carelessly, in violation of any State and Federal Law or for a purpose or in a manner contrary to that contemplated by this Lease. Lessee shall obtain all permits and Licenses necessary for the installation, operation, possession and use of the Equipment. Lessee shall comply with all State and Federal Laws applicable to the installation, use, possession and operation of the Equipment, and if compliance with any such State and Federal Law requires changes or additions to be made to the Equipment, such changes or additions shall be made by Lessee at its expense. Section 7.2. Maintenance of Eauipment by Lessee. Lessee shall, at its own expense, maintain, preserve and keep the Equipment in good repair, working order and condition, and shall from time to time make all repairs and replacements necessary to keep the Equipment in such condition. Lessor shall have no responsibility for any of these repairs or replacements. Section 7.3. Taxes. Other Governmental Charqes and Utilitv Charqes. Except as expressly Limited by this Section, Lessee shall pay all taxes and other charges of any kind which are at any time lawfully assessed or levied against or with respect to the Equipment, the Rental Payments or any part thereof, or which become due during the Term of this Lease, whether assessed against Lessee or Lessor. Lessee shall also pay when due all gas, water, steam, electricity, heat, power, telephone, 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 for public improvements that may be secured by a Lien on the Equipment; provided that with respect to special assessments or other governmental charges that may lawfully be paid in installments over a period of years, Lessee shall be obligated to pay only such installments as are required to be paid during the Term of this Lease as and when the same become due. Lessee shall not be required to pay any federal, state or local income, inheritance, estate, succession, transfer, gift, franchise, gross receipts, profit, excess profit, capital stock, corporate, or other similar tax payable by Lessor, its successors or assigns, unless such tax is made in lieu of or as a substitute for any tax, assessment or charge which is the obligation of Lessee under this Section. Lessee may, at its own expense and in its own name, in good faith contest any such taxes, assessments, utility and other charges and, in the event of any such contest, may permit the taxes, assessments, utility or other charges so contested to remain unpaid during the period of such contest and any appeal therefrom unless Lessor shall notify Lessee that, in the opinion of Independent Counsel, by nonpayment of any such items the interest of Lessor in the Equipment will be materially endangered or the Equipment or any part thereof will be subject to loss or forfeiture, in which event Lessee shall promptly pay such taxes, assessments, utility or other charges or provide Lessor with full security against any loss which may result form nonpayment, in form satisfactory to Lessor. Section 7.4. Advances. If Lessee shall fail to perform any of its obligations under this Article, Lessor may, but shall not be obligated to, take such action as may be necessary 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 VIII TITLE Section 8.1. Title. During the Term of this Lease, and so long as Lessee is not in default as provided in Article XII, Legal title to the Equipment and any and all repairs, replacements, substitutions and modifications to it shall be in Lessee. Upon termination of this Lease for any of the reasons specified in Section 4.6, Clauses (a) and (c), full and unencumbered legal title to the Equipment shall pass to Lessor, and Lessee shall have no further interest therein. In either of such events Lessee shall execute and deliver to Lessor such documents as Lessor may request to evidence the passage of legal title to the Equipment to Lessor and the termination of Lessee's interest therein, and upon request by Lessor shall deliver possession of the Equipment to Lessor in accordance with Section 12.3. Upon termination of this Lease for any of the reasons specified in Section 4.6, Clauses (b) and (d), Lessor's security or other interest in the Equipment shall terminate, and Lessor shall execute and deliver to Lessee such documents as Lessee may request to evidence the termination of Lessor's security or other interest in such Equipment. Section 8.2. Security Interest. Lessor shall have and retain a security interest under the Uniform Commercial Code in the Equipment, the proceeds thereof and all repairs, replacements, substitutions and modifications thereto or thereof made pursuant to Section 8.5, in order to secure Lessee's payment of all Rental Payments due during the Term of this Lease and the performance of all other obligations herein to be performed by Lessee. In the event such Equipment is a motor vehicle, Lessor shall have authority to require the state of registration to note Lessor's security interest on its records and the Certificate of Title for the Equipment. 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 a valid security interest in the Equipment. If requested by Lessor, Lessee shall conspicuously mark the Equipment with appropriate Lettering, labels or tags, and maintain such markings during the Term of this Lease, so as clearly to disclose Lessor's security interest in the Equipment. Section 8.3. Liens. During the Term of this Lease, Lessee shall not, directly or indirectly, create, incur, assume, or suffer to exist any mortgage, pledge, Lien, charge, encumbrance or claim on or with respect to the Equipment, other that the respective rights of Lessor and Lessee as herein provided and Permitted Encumbrances. Except as expressly provided in Section 7.3 and this Article, Lessee shall promptly, at its own expense, take such action as may be necessary duly to discharge or remove any such mortgage, pledge, lien, charge, encumbrance or 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 mortgage, pledge, lien, charge, encumbrance or claim. Section 8.4. Installation of Lessee's Eauinment. Lessee may at any time and from time to time, in its sole discretion and at its own expense, install other items of equipment in or upon the Equipment, which items shall be identified by tags or other symbols affixed thereto as property of Lessee. ALL such items so identified shall remain the sole property of Lessee, in which Lessor shall have no interest, and may be modified or removed by Lessee at any time provided that Lessee shall repair and 5 restore any and all damage to the Equipment resulting from the installation, modification or removal of any such items. Nothing in this Lease shall prevent Lessee from purchasing items to be installed pursuant to this Section under a conditional sale or Lease with option to purchase contract, or subject to a vendor's lien or security agreement, as security for the unpaid portion of the purchase price thereof, provided that no such lien or security interest shall attach to any part of the Equipment. Section 8.5. Modification of Eouiciment. Lessee shall, at its own expense, have the right to make repairs to the Equipment, and to make repairs, replacements, substitutions and modifications to all or any of the parts thereof. All such work and any part or component used or installed to make a repair or as a replacement, substitution or modification, shall thereafter comprise part of the Equipment and be subject to the provisions of this Lease. Such work shall not in any way damage the Equipment or cause it to be used for purposes other than those authorized under the provisions of State and Federal Law or those contemplated by this Lease; and the Equipment, upon completion of any such work shall be of a value which is not less than the value of the Equipment immediately prior to the commencement of such work. Any property for which a replacement or substitution is made pursuant to this Section may be disposed of by Lessee in such manner and on such terms as are determined by Lessee. Lessee will not permit any mechanic's or other lien to be established or remain against the Equipment for labor or materials furnished in connection with any repair, replacement, substitution or modification made by Lessee pursuant to this Section; provided that if any such lien is established and Lessee shall first notify Lessor of Lessee's intention to do so, Lessee may in good faith contest any lien filed or established against the Equipment, and in such event may permit the items so contested to remain undischarged and unsatisfied during the period of such contest and any appeal therefrom unless Lessor shall notify Lessee that, in the opinion of Independent Counsel, by nonpayment of any such item the interest of Lessor in the Equipment will be materially endangered or the Equipment or any part thereof will be subject to loss or forfeiture, in which event Lessee shall promptly pay and cause to be satisfied and discharged all such unpaid items or provide Lessor with full security against any such Loss or forfeiture, in form satisfactory to lessor. Lessor will cooperate fully with Lessee in any such contest, upon the request and at the expense of Lessee. Section 8.6. Personal ProDerty. The Equipment is and shall at all times be and remain personal property notwithstanding that the Equipment or any part thereof may be or hereafter become in any manner affixed or attached to or embedded in or permanently rested upon real property or any building thereon or attached in any manner to what is permanent by means of cement, plaster, nails, bolts, screws, or otherwise. ARTICLE IX WARRANTIES Section 9.1. Selection of EouiDment. The Equipment and the Contractor have been selected by Lessee, and Lessor shall have no responsibility in connection with the selection of the Equipment, its suitability for the use intended by Lessee, the acceptance by the Contractor or its sales representative of the order submitted, or any delay or failure by the Contractor or its sales representative to manufacture, deliver or install the Equipment for use by Lessee, Lessee authorized Lessor to add the serial number of the Equipment to Exhibit A when available. Section 9.2. Installation and Maintenance of EauiDment. Lessor shall have no obligation to install, erect, test, inspect, service or maintain the Equipment under any circumstances, but such actions shall be the obligation of Lessee or the Contractor. Section 9.3. Contractor's Warranties. Lessor hereby assigns to Lessee for and during the Term of this Lease, all of its interest in all Contractor's warranties and guarantees, express or implied, issued on or applicable to the Equipment, and Lessor hereby authorizes Lessee to obtain the customary services furnished in connection with such warranties and guarantees at Lessee's expense. Section 9.4. Patent Infringement. Lessor hereby assigns to Lessee for and during the Term of this Lease all of its interest in patent indemnity protection provided by any Contractor with respect to the Equipment. Such assignment of patent indemnity protection by Lessor to Lessee shall constitute the entire liability of Lessor for any patent infringement by Equipment furnished pursuant to this Lease. Section 9.5. Disclaimer of Warranties. THE EQUIPMENT IS DELIVERED AS IS, AND LESSOR MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, AS TO THE VALUE, DESIGN, CONDITION, MERCHANTABILITY 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. ARTICLE X OPTION TO PURCHASE Section 10.1. When Available. Lessee shall have the option to purchase Lessor's interest in the Equipment on any Payment Date for the then applicable Purchase Option Price set forth in Exhibit B, but only if Lessee is not in default under this Lease, and only in the manner provided in this Article. Section 10.2. Exercise of ODtion. 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 is to be exercised and shall deposit with Lessor on the date of exercise an amount equal to all Rental Payments and any other amounts then due or past due (including the Rental Payment due on the Payment Date on which the option is to be exercised) and the applicable Purchase Option Price set forth in the page of Exhibit B. The closing shall be on the Payment Date on which the option is to be exercised at the office of Lessor. Section 10.3. Release of Lessor's Interest. Upon exercise of the Purchase Option by Lessee, Lessor shall convey or release to Lessee, all of its right, title, and/or interest in and to the Equipment by delivering to Lessee such documents as Lessee deems necessary for this purpose. ARTICLE XI ASSIGNMENT, SUBLEASING, MORTGAGING AND SELLING Section 11.1. Assignment by Lessor. Lessor shall not assign its obligations under this Lease, and no purported assignment thereof shall be effective. All of Lessor's rights, title and/or interest in and to this Lease, the Rental Payments and other amounts due hereunder and the Equipment may be assigned and reassigned in whole or in part to one or more assignees or subassignees by Lessor at any time, without the consent of Lessee. No such assignment shall be effective as against Lessee unless and until the assignor shall have filed with Lessee a copy or written notice thereof identifying the assignee. Lessee shall pay all Rental Payments due hereunder to or at the direction of Lessor or the assignee named in the most recent assignment or notice of assignment filed with Lessee. During the Lease Term Lessee shall keep a complete and accurate record of all such assignments. Lessor (or any assignee of Lessor) is authorized to sell participations in this Lease, the Rental Payments and all other amounts due hereunder and the Equipment subject hereto; and, subject to the above provisions regarding assignment, for this purpose may assign all or any part of its interest herein to a bank, trust company or other entity which will act as agent for any such participants. Lessee shall cooperate with Lessor (or any assignee of Lessor) in effecting any such assignments. No such agreement shall in any way alter or affect the terms and conditions of the Lease. in the event Lessor assigns participations in its right, title, and/or interest in and to this Lease, the Rental Payments and other amounts due hereunder and the Equipment, such participants shall be considered to be Lessor with respect to their participated shares thereof. Section 11.2. Assiqnment and Subleasinq by Lessee. Neither this Lease nor Lessees interest in the Equipment may be assigned by Lessee without the written consent of Lessor. However, the Equipment may be subleased by Lessee, in whole or in part, without the consent of Lessor, subject, however, to each of the following conditions: (i) This Lease and the obligation of Lessee to make Rental Payments hereunder, shall remain obligations of Lessee. (ii) The sublessee shall assume the obligations of Lessee hereunder to the extent of the interest subleased. (iii) Lessee shall, within thirty (30) days after the delivery thereof, furnish or cause to be furnished to Lessor a true and complete copy of such sublease. (iv) No sublease by Lessee shall cause the Equipment to be used for a purpose other than a governmental function authorized under the provisions of the Constitution and Laws of the State. (v) No sublease shall cause the Interest component of the Rental Payments due with respect to the Equipment to become includible in gross income of the recipient for federal income tax purposes. Section 11.3. Restriction on Mortqaqe or Sale of Eouipment by Lessee. Except as provided in Section 11.2, Lessee will not mortgage, sell, assign, transfer or convey the Equipment or any portion thereof during the Term of this Lease, or remove the same from its boundaries, without the written consent of Lessor. In the event that any Equipment is a motor vehicle, Lessee will not store or house the same outside its boundaries without the written consent of Lessor. ARTICLE XII EVENTS OF DEFAULT AND REMEDIES Section 12.1. Events of Default Defined. The following shall be "events of default" under this Lease and the terms "events of default" and "default" shall mean, whenever they are used in this Lease, with respect to any Equipment Group, any one or more of the following events: (i) Failure by Lessee to pay Rental Payment or other payment required to be paid under this Lease at the time specified herein and the continuation of said failure for a period of three (3) days after telephonic or telegraphic notice given by Lessor that the payment referred to in such notice has not been received, such telephonic or telegraphic notice to be subsequently confirmed in writing, or after written notice. (ii) Failure by Lessee to observe and perform any covenant, condition or agreement on its part to be observed or performed, other than as referred to in Clause (i) of this Section, for a period of thirty (30) days after written notice specifying such failure and requesting that it be remedied has been given to Lessee by Lessor, unless Lessor shall agree in writing to an extension of such time prior to its expiration; provided, however, if the failure stated in the notice cannot be corrected within the applicable period, Lessor will not unreasonably withhold its consent to an extension of such time if corrective action is instituted by Lessee within the applicable period and diligently pursued until the default is corrected. (iii) The filing by Lessee of a voluntary petition in bankruptcy, or failure by Lessee promptly to Lift any execution, garnishment or attachment of such consequence as would impair the ability of Lessee to carry on its governmental or proprietary function or adjudication of Lessee as a bankrupt, 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 a petition applicable to Lessee in any proceedings instituted under the provisions of the Federal Bankruptcy Statute, as amended, or under any similar acts which may hereafter by enacted. The provisions of this Section 12.1 and Section 12.2 are subject to the following limitation: if by reason of force maieure Lessee is unable in whole or in part to carry out its obligations under this Lease with respect to any Equipment other that its obligation to pay Rental Payments with respect thereto which shall be paid when due notwithstanding the provisions of this paragraph, Lessee shall not be deemed in default during the continuance of such inability. The term "force maieure" as used herein shall mean, without Limitation, the following: acts of God; strikes, Lockouts or other labor disturbances; acts of public enemies; orders or restraints of any kind of the government of the United States of America or the State or their respective departments, agencies or officials, or any civil or military authority; insurrections; riots; landslides; earthquakes; fires; storms; droughts; floods; explosions; breakage or accident to machinery, transmission pipes or canals; or any other cause or event not reasonably within the control of Lessee and not resulting from its negligence. Lessee agrees, however, to remedy with all reasonable dispatch the cause or causes preventing Lessee from carrying out its obligations under this Lease; provided that the settlement of strikes, Lockouts and other labor disturbances shall be entirely within the discretion of Lessee and Lessee shall not be required to make settlement of strikes, Lockouts and other Labor disturbances by acceding to the demands of the opposing party or parties when such course is in the judgment of Lessee unfavorable to Lessee. Section 12.2. Remedies on Default. Whenever any event of default referred to in Section 12.1 hereof shall have happened and be continuing with respect to the Equipment, 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 steps: (i) Lessor, with or without terminating this Lease may declare all Rental Payments due or to become due during the Fiscal Year in effect when the default occurs to be immediately due and payable by Lessee, whereupon such Rental Payments shall be immediately due and payable. 7 (ii) Lessor, with or without terminating this Lease may repossess the Equipment by giving Lessee written notice to deliver the Equipment to Lessor, whereupon Lessee shall do so 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 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. If the Equipment or any portion of it has been destroyed or damaged beyond repair, Lessee shall pay the applicable Purchase Option Price of the Equipment, as set forth in Exhibit B (less credit for Net Proceeds), to Lessor. Notwithstanding 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 then in effect. If this Lease has not been terminated, Lessor shall return the Equipment to Lessee at Lessee's expense when the event of default is cured. (iii) If Lessor terminates this Lease and takes possession of such Equipment, Lessor shall within thirty (30) days thereafter use its best efforts to sell such Equipment or any portion thereof in a commercially reasonable manner at public or private sale in accordance with applicable State laws. Lessor shall apply the proceeds of such sale to pay the following items in the following order: (a) all costs incurred in securing possession of the Equipment; (b) all expenses incurred in completing the sale; (c) the applicable Purchase Option Price of the Equipment; and (d) the balance of any Rental Payments owed by Lessee during the Fiscal Year then in effect. Any Sale proceeds remaining after the requirements of Clauses (a), (b), (c) and (d) have been met may be retained by Lessor. (iv) If the proceeds of sale of such Equipment are not sufficient to pay the balance of any Rental Payments owed by Lessee during the Fiscal Year then in effect, Lessor may take any other remedy available at Law or in equity to require Lessee to perform any of its obligations hereunder. Section 12.3. Return of Eouivment. Upon the Expiration or termination of this Lease prior to the payment of all Rental Payments in accordance with Exhibit B, Lessee shall return such Equipment to Lessor in the condition, repair, appearance and working order required in Section 7.2, in the following manner as may be specified by Lessor: (i) by delivering the Equipment at Lessee's cost and expense to such place within the State as Lessor shall specify; or (ii) by loading such portions of the Equipment as are considered movable at Lessee's cost and expense, on board such carrier as Lessor shall specify and shipping the same, freight prepaid, to the place specified by Lessor. If Lessee refuses to return the Equipment in the manner designated, Lessor may repossess the Equipment and charge to Lessee the costs of such repossession or pursue any remedy described in Section 12.2. Section 12.4. No Remedy Exclusive. No remedy conferred upon or reserved to Lessor by this Article is intended to be exclusive and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Lease. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver thereof but any such right and power may be exercised from time to time and as often as may be deemed expedient by Lessor or its assignee. Section 12.5. Aqreement to Pay Attorneys' Fees and Expenses. In the event either party to this Lease should default under any of the provisions hereof and the nondefaulting party should employ attorneys and/or incur other expenses for the collection of moneys or for the enforcement of performance or observance of any obligation or agreement on the part of the defaulting party herein contained, the defaulting party agrees that it will on demand therefor pay to the nondefautting party the reasonable fee of such attorneys and/or such other reasonable expenses so incurred by the nondefaulting party. In the event that legal proceedings relating to this Lease (but not evidencing an action by a nondefaulting party against a defaulting party) are commenced in any court or before any other tribunal of competent jurisdiction, the reasonable legal fees and other legal costs and expenses of the prevailing party shall be paid by the nonprevailing party on demand of the prevailing party. Section 12.6. Late Charqe. Whenever any event of default referred to in Section 12.1, Clause (i) hereof shall have happened and be continuing with respect to any Equipment, Lessor shall have the right, at its option and without any further demand or notice, to require a late payment charge for each thirty (30) day period or part thereof during which such event of default occurs equal to four (4X) of the delinquent amount, and Lessee shall be obligated to pay the same immediately upon receipt of Lessor's written invoice therefor; provided, however, that this Section 12.6 shall not be applicable if or to the extent that the application thereof would affect the validity of this Lease. ARTICLE XIII ADMINISTRATIVE PROVISIONS Section 13.1. Notices. ALL notices, certificates, legal opinions or other communications hereunder shall be sufficiently given and shall be deemed given when delivered or deposited in the United States mail in registered form with postage fully prepaid to the addresses specified on the first page hereof; provided that Lessor and Lessee, by notice given hereunder, may designate different addresses to which subsequent notices, certificates, Legal opinions or other communications will be sent. Section 13.2. Financial Information. During the Term of this Lease, Lessee annually will provide Lessor with current financial statements, budgets, proof of appropriation for the ensuing Fiscal Year and such other financial information relating to the ability of Lessee to continue this Lease as may be requested by Lessor or its assignee. Section 13.3. eindinq Effect. This Lease shall inure to the benefit of and shall be binding upon Lessor and Lessee and their respective successors and assigns. Section 13.4. Severability. In the event any provision of this 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 13.5. Amendments. Chanes and Modifications. This Lease may be amended or any of its terms modified only by written document duly authorized, executed and delivered by Lessor and Lessee. Section 13.6. Captions. The captions or headings in this Lease are for convenience only and in no way define, limit or describe the scope or intent of any provision, Article, Section or Clause of this Lease. Section 13.7. 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 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 Lease. section 13.8. Execution in Counterparts. This Lease may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. section 13.9. Aoolicable Law. This Lease shall be governed by and construed in accordance with the laws of the State of California. IN WITNESS WHEREOF, Lessor has caused this Lease to be executed in its corporate name by its duly authorized officer; and Lessee has caused this Lease to be executed in its name by its duly authorized officer, as of the date first above written. GE CAPITAL PUBLIC FINANCE, INC., Lessor By Its The City of San Rafael, Lessee Bir �G' LAWRENCE E. MULRYAN Its MAV()R ATTEST: JEANN LEONCINI, City Clerk 9 -i EXHIBIT A EQUIPMENT DESCRIPTION The following Equipment comprises an Equipment Group which is the subject of the attached Lease with Option to Purchase Agreement: Exhibit # Quantity Descriotion Serial Number A-1 U PMT NO. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 2 3 4 5 6 7 8 9 10 11 12 1 2 3 4 5 6 7 8 9 10 11 12 1 2 3 4 5 6 7 8 9 10 11 12 1 2 3 4 5 6 7 FORM OF EXHIBIT B, PAGE B- 1 SCHEDULE OF RENTAL PAYMENTS RELATING TO VEHICLES/EQUIPMENT DESCRIBED ON EXHIBIT A, PAGE A - 1 Rental Payments and Option to Purchase Schedule PAYMENT TOTAL PRINCIPAL INTEREST PURCHASE DATE PAYMENT COMPONENT COMPONEN OPTION PRICE* 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 5 1991 1991 1991 1991 1991 1991 1991 1991 1991 1991 1991 1992 1992 1992 1992 1992 1992 1992 1992 1992 1992 1992 1992 1993 1993 1993 1993 1993 1993 1993 1993 1993 1993 1993 1993 1994 1994 1994 1994 1994 1994 1994 11,085.31 11,085.31 11,085.31 11,085.31 11,085.31 11,085.31 11,085.31 11,085.31 11,085.31 11,085.31 11,085.31 11,085.31 11,085.31 11,085.31 11,085.31 11,085.31 11,085.31 11,085.31 11,085.31 11,085.31 11,085.31 11,085.31 11,085.31 11,085.31 11,085.31 11,085.31 11,085.31 11,085.31 11,085.31 11,085.31 11,085.31 11,085.31 11,085.31 11,085.31 11,085.31 11,085.31 11,085.31 11,085.31 11,085.31 11,085.31 11,085.31 11,085.31 11,085.31 7,773.52 7,820.42 7,867.61 7,915.08 7,962.83 8,010.87 8,059.21 8,107.83 8,156.75 8,205.96 8,255.47 8,305.28 8,355.38 8,405.80 8,456.51 8,507.53 8,558.86 8,610.50 8,662.45 8,714.71 8,767.29 8,820.19 8,873.40 8,926.94 8,980.80 9,034.98 9,089.49 9,144.33 9,199.50 9,255.01 9,310.85 9,367.02 9,423.54 9,480.39 9,537.59 9,595.13 9,653.02 9,711.26 9,769.85 9,828.80 9,888.10 0.00 3,311.79 3,264.89 3,217.70 3,170.23 3,122.48 3,074.44 3,026.10 2,977.48 2,928.56 2,879.35 2,829.84 2,780.03 2,729.93 2,679.51 2,628.80 2,577.78 2,526.45 2,474.81 2,422.86 2,370.60 2,318.02 2,265.12 2,211.91 2,158.37 2,104.51 2,050.33 1,995.82 1,940.98 1,885.81 1,830.30 1,774.46 1,718.29 1,661.77 1,604.92 1,547.72 1,490.18 1,432.29 1,374.05 1,315.46 1,256.51 1,197.21 555,261.49 547,299.52 539,292.77 531,240.98 523,143.90 515,001.28 506,812.85 498,578.36 490,297.56 481,970.17 473,595.94 465,174.61 456,705.91 448,189.57 439,625.32 431,012.91 422,352.04 413,642.46 404,883.89 396,076.05 387,218.67 378,311.47 369,354.16 360,346.47 351,288.10 342,178.79 333,018.24 323,806.15 314,542.25 305,226.24 295,857.83 286,436.72 276,962.62 267,435.22 257,854.24 248,219.36 238,530.28 228,786.70 218,988.32 209,134.82 199,225.89 189,261.23 EXHIBIT C CERTIFICATE OF ACCEPTANCE I, the undersigned, hereby certify that I am the duly qualified Mayor of Citv of San Rafael, California (Lessee); and, with respect to the Lease with Option to Purchase Agreement dated January 22. 1991 (the Lease), by and between Lessee and GE Capital Public Finance, Inc., (Lessor), that the Equipment described on the attached Exhibit A has been delivered to, inspected by and accepted by Lessee. Dated: 19 CITY OF SAN RAFAEL, Lessee By LAWRENCE E. MULRYAN Its: MAYOR ATTEST: ----------------------------------------- JEANNE M. LEONCINI, CITY CLERK EXHIBIT D OFFICER'S CERTIFICATE I, the undersigned, hereby certify that I am the duly qualified and actio Mavor of The City of San Rafael, (Lessee); and, with respect to the Lease with Option to Purchase Agreement dated January 21, 1991 (the Lease), by and between Lessee and GE Capital Public Finance, Inc., that: 1. The rental payments provided for on Exhibit B to the Lease (the Rental Payments) shall commence and be due and payable on _ 3/15/91 and the nth of each month thereafter, in the amounts and on the dates shown on Exhibit 6 to the Lease. 2. Lessee has appropriated an/or taken other lawful actions necessary to provide moneys sufficient to pay all Rental Payments required to be paid under the Lease during the current fiscal year of Lessee, and such moneys will be applied in payment of all such Rental Payments due and payable during such current fiscal year. 3. Lessee has obtained from a reputable insurance company qualified to do business in the state of California (the State) insurance with respect to, or has provided self-insurance with respect to, all risks required to be covered thereby pursuant to Article VI of the Lease. 4. Lessee is exempt from all personal property taxes, and is (eslatptXfrMO(subject to)* sales and/or use taxes with respect to the Equipment and the Rental Payments. 5. During the Lease Term (as defined in the Lease) the Equipment will be used by Lessee to perform essential governmental functions. Such functions are: Pnl i rp C'nmmiini rrati nnG 6. There is no litigation, action, suit, or proceeding pending or before any court, administrative agency, arbitrator or governmental body, that challenges the authority of Lessee or its officers or employees to enter into the Lease; the proper authorization, approval and execution of the Lease and other documents contemplated thereby; the appropriation of moneys, or any other action taken by Lessee to provide moneys, sufficient to make Rental payments coming due under the Lease in Lessee's current fiscal year; or the ability of Lessee otherwise to perform its obligations under the Lease and the transactions contemplated thereby. Dated: January 22 , 19 91 The City of San Rafael, Lessee—' By, `. "LAWRENCE E. MULRYAN Its Maynr Attest: * Strike inapplicable term. JEANNE 1hEONCINI, City Clerk D-1 CITY ^. OF �- SAN RAFAEE 1,100 FIF III AVENUE, P.O BOX 60, SAN RAFAEL CALIFORNIA 94915-0060 1 FAX. (415) 459-2242 The City of San Rafael EXHIBIT E 1400 Fifth Avenue OPINION OF COUNSEL San Raphael, CA 94915 GE CAPITAL PUBLIC FINANCE, INC. Three Capital Drive Eden Prairie, NN 5534.4 MAYOR LAWRENCE E. MULRYAN COUNCIL MEMBERS AL13ERTJ.BOnO DOnOTHY L anEINER MICHAEL A SI IIPPEY JOAN C. THAYER OFFICE OF THE CITY ATTORNEY Gary T. Ragghlenti, City Attorney Tessie Belue, Assistant City Attorney Laura Stitt Sheedy, Deputy City Attorney RE: Lease with Option to Purchase Agreement dated as of January 21. 1991 by and between GE Capital Public Finance, Inc., (Lessor), and The City of San Rafael (Lessee). Gentlemen: I have acted as counsel to Lessee with respect to the Lease with Option to Purchase Agreement described above (the Lease) and various related matters, end in this capacity have reviewed a duplicate original or certified copy of the Lease, the Exhibits attached thereto and the Escrow Agreement referred to therein (the Escrow Agreement). Based upon the examination of these and such other documents as 1 deem relevant, it is my opinion that: 1. Lessee is a municipal corporation and political subdivision of the state of California (the State), duly organized, existing and operating under the Constitution and laws of the State. 2. Lessee is authorized and has power under applicable law to enter into the Lease and the Escrow -Agreement, and to carry out its obligations thereunder and the transactions contemplated thereby. 3. The Lease and the Escrow Agreement have been duly authorized, approved, executed and delivered by and on behalf of Lessee, and are valid and binding contract of Lessee enforceable in accordance with their terms, except to the extent limited by State and Federal laws affecting remedies and by bankruptcy, reorganization or other laws of general application relating to or affecting the enforcement of creditor's rights. 4. The authorization, approval and execution of the Lease and the Escrow Agreement all other proceedings of Lessee relating to the transactions contemplated thereby have been performed in accordance with all applicable open meeting, public bidding and all other laws, rules and regulations of the State. 5. The execution of the Lease and Escrow Agreement and the appropriation of moneys to pay the Rental Payments coming due under the Lease do not result in the violation of any constitutional, statutory or other limitation relating to the manner, fors or amount of indebtedness which may be incurred by Lessee. 6. There is no litigation, action, suit or proceeding pending or before any court, administrative agency, arbitrator or governmental body, that challenges the authority of Lessee or Its officers or its employees to enter into the Lease and the Escrow Agreement; the proper authorization, approval and/or execution of the Lease, the Exhibits thereto, and other ,documents contemplated thereby; the appropriation of moneys to make Rental Payments under the Lease for the current fiscal year of Lessee; or the ability of Lessee otherwise to perform its obligations under the Lease; the Escrow Agreement and the transactions contemplated thereby. 7. Resolution No. 8332 of the governing body of Lessee was duly and validly adopted by such governing body an _ January 22, 19_21__, and such resolution has not been amended or repealed and remains in full force and effect. Dated: January 29, 1991 very truly yours, TESSIE BELUE Assistant City Attorney F-1 RA-ESCRO 8/90 RAFAEL.MRG ESCROW AGREEMENT THIS AGREEMENT, made and entered into as of January 21, 1991, by and among National City Bank of Minneapolis, a national banking association (the Escrow Agent), GE Capital Public Finance, Inc., a corporation duly organized and existing under the Laws of the state of Delaware (GECPF), and the The City of San Rafael, a political subdivision of the State of California (Lessee): WITNESSETH THAT, in the joint and actual exercise of their powers, and in consideration of the mutual covenants herein contained, the parties hereto recite and agree as follows: Section 1. Recitals. 1.01. GECPF and Lessee have entered into a Lease with Option to Purchase Agreement dated as of January 21, 1991 (the Lease), a duplicate original of which has been furnished to the Escrow Agent, whereby GECPF has agreed to Lease and sell certain personal property described therein (the Equipment) to Lessee, and Lessee has agreed to lease and purchase the Equipment from GECPF, � n the manner and on the terms set forth in the Lease. 1.02. This Agreement is not intended to alter or change in any way the rights and obligations of GECPF and Lessee under the Lease, but is entirely supplemental thereto. 1.03. The terms capitalized in this Agreement but not defined herein shall have the meanings given to them in the Lease. 1.04. Under Section 2.3 of the Lease, within ten (10) days after the execution of the Lease and this Agreement and the delivery of the legal opinion by Lessee pursuant to Section 2.1 of the Lease, GECPF is required to deposit or cause to be deposited with the Escrow Agent the sum of S S60400040, which is required to be credited to the Equipment Acquisition Fund established in Section 2 hereof and used to pay the Equipment Cost of the items of Equipment, and, to the extent not needed for this purpose, is required to be repaid to GECPF; all as hereinafter provided. 1.05. Under the Lease, either GECPF or Lessee will cause each item of Equipment to be ordered by the Contractor therefor. The Equipment Cost to be paid to the Contractor supplying the item of Equipment shall be paid solely from the amount deposited with the Escrow Agent as described in Section 1.04 hereof, in accordance with this Agreement. 1.06. Subject to such control by Lessee as is provided for herein, GECPF and Lessee agree to employ the Escrow Agent to receive, hold, invest and disburse the money to be paid to the Escrow Agent by GECPF as described in Section 1.04, ell as hereinafter provided; however, the Escrow Agent shall not be obligated to assume or perform any obligation of Lessee or GECPF or any Contractor with respect thereto or under the Lease by reason of anything contained in this Agreement. 1.07. Each of the parties has authority to enter into this Agreement, and has taken all actions necessary to authorize the execution of this Agreement by the officers whose signatures are affixed hereto. Section 2. Eouipment Acquisition Fund. 2.01. The Escrow Agent shall establish a special escrow fund designated as the "Equipment Acquisition Fund" (the Equipment Acquisition Fund), shall keep such Fund separate and apart from all other funds and moneys held by it, and shall administer such Fund as provided in this Section and Section 4 hereof. 2.02. All moneys paid to the Escrow Agent by GECPF pursuant to Section 1.04 of this Agreement shall be credited to the Equipment Acquisition Fund. The Escrow Agent shall use the moneys in the Equipment Acquisition Fund to pay the Equipment Cost of each item of Equipment subject to the Lease, upon receipt with respect thereto of a Payment Request Form attached hereto as Exhibit A, executed by Lessee, fully completed and with all supporting documents described therein attached thereto. Upon receipt of a Payment Request Form with respect to any item of Equipment, an amount equal to the Equipment Cost as shown therein shall be paid directly to the person or entity entitled to payment as specified therein. 2.03. Lessee shall furnish to the Escrow Agent as soon as available, a copy of the order for all Equipment ordered pursuant to the Lease, showing the Equipment Cost and the estimated delivery date. On January 21, 1994, the Escrow Agent shall pay: (1) to GECPF an amount equal to the deposit made by GECPF pursuant to Section 1.04, less the amount thereof previously disbursed to pay the Equipment Cost of any item of Equipment, and less an amount thereof equal to the Equipment Cost of all items of Equipment for which the Escrow Agent has received a copy of the order relating thereto and which has not been paid; and (2) to Lessee the entire balance on hand in the Fund. 2.04. The Escrow Agent shall only be responsible for the safekeeping and investment of the moneys held in the Equipment Acquisition Fund, and the disbursement thereof in accordance with this Section, and shall not be responsible for the authenticity or accuracy of such certifications or documents, the application of amounts paid pursuant to such certifications by the persons or entities to which they are paid, or the sufficiency of the moneys credited to the Equipment Acquisition Fund to make the payments herein required. Section 3. Separate Interest Payments. Until the date of execution by Lessee of a Certificate of Acceptance with respect to the Equipment in the form attached to the Lease as Exhibit C, Lessee shall pay to GECPF in accordance with Section 2.3. of the Lease, interest on the amounts advanced by GECPF to Lessee, such separate interest payments to be computed and payable as provided in Section 2.3 of the Lease. Section 4. Moneys in Equipment Acquisition Fund: Investment. 4.01. The moneys and investments held by the Escrow Agent under this Agreement are irrevocably held in trust for the benefit of Lessee and GECPF, and such moneys, together with any income or interest earned thereon, shall be expended only as provided in this Agreement, and shall not be subject to levy or attachment of lien by or for the benefit of any creditor of either Lessee or GECPF. 4.02. Moneys held by Escrow Agent nereunder shall be invested and reinvested by the Escrow Agent upon order of Lessee only in Qualified investments, which Qualified Investments include any investment from time to time authorized by Law for the investment of moneys of Lessee. Such investments shall be registered in the name of the Escrow Agent and held by the Escrow Agent. With the approval of Lessee, the Escrow Agent may purchase or sell to itself or any affiliate, as principal or agent, investments authorized by this Section. Such investments and reinvestments shall be made giving full consideration for the time at which funds are required to be available. 4.03. The Escrow Agent shall, without further direction from Lessee, sell such investments as and when required to make any payment from the Equipment Acquisition Fund. Any income received on such investments shall be credited to the Fund. 4.04. The Escrow Agent shall furnish to Lessee and GECPF, an accounting of all investments. The Escrow Agent shall not be responsible or liable for any loss suffered in connection with any investment moneys made by it in accordance with this Section. Section 5. Escrow Agent's Authority: Indemnification. 5.01. The Escrow Agent may act in reliance upon any writing or instrument or signature which it, in good faith, believes to be genuine, may assume the validity and accuracy of any statement or assertion contained in such a writing or instrument, and may assume that any person purporting to give any writing, notice, advice or instructions in connection with the provisions hereof has been duly authorized to do so. The Escrow Agent shall not be liable in any manner for the sufficiency for correctness as to form, manner and execution, or validity of any instrument deposited with it, nor as to the identity, authority or right of any person executing the same; and its duties hereunder shall be limited to those specifically provided herein. 5.02. Unless the Escrow Agent is guilty of willful misconduct with regard to its duties hereunder, Lessee and GECPF jointly and severally hereby agree to indemnify the Escrow Agent and hold it harmless from any and all claims, liabilities, Losses, actions, suits or proceedings at law or in equity, or any other expense, fees charges of any character or nature, which it may incur or with which it may be threatened by reason of its acting as Escrow Agent under this Agreement; and in connection therewith, to indemnify the Escrow Agent against any and all expenses, including reasonable attorneys' fees and the cost of defending any action, suit or proceeding or resisting any claim. The Escrow Agent shall be vested with a lien on all property deposited hereunder, for indemnification, for reasonable attorneys' fees, court costs, for any suit, interpleader or otherwise, or any other expense, fees or charges of any character or nature, which may be. incurred by the Escrow Agent by reason of disputes arising between Lessee and GECPF as to the correct interpretation of the Lease or this Agreement and instructions given to the Escrow Agent hereunder, or otherwise, with the right of the Escrow Agent, regardless of the instructions aforesaid, to hold the said property until and unless said additional expenses, fees and charges shall be fully paid. 5.03. If Lessee or GECPF shall be in disagreement about the interpretation of the Lease or this Agreement, or about the rights and obligations, or the propriety of any action contemplated by the Escrow Agent hereunder, the Escrow Agent may, but shall not be•required to, file an appropriate civil action to resolve the disagreement. The Escrow Agent shall be indemnified for alll costs, including reasonable attorneys' fees, in connection with such civil action, and shall be fully protected in suspending all or part of its activities under this Agreement until a final judgment in such action is received. 5.04. The Escrow Agent may consult with counsel of its own choice and shall have full and complete authorization and protection with the opinion of such counsel. The Escrow Agent shall other wise not be liable for any mistakes of facts or errors of judgment, or for any acts or omissions of any kind unless caused by its willful misconduct. Section 6. Escrow Agent's Compensation. Lessor hereby agrees to pay the Escrow Agent $500.00 as compensation for the services to be rendered hereunder, and will pay and/or reimburse the Escrow Agent upon request for all expenses, disbursements and advances, including reasonable attorneys' fees, incurred or made by it in connection with carrying out its duties hereunder. The Escrow Agent's fee shall be payable upon execution of this Agreement. Section 7. Chane of Escrow Aqent. 7.01. A national banking association located in the State of California, or a state bank organized under the laws of the State of California, qualified as a depository of public funds, may be substituted to act as Escrow Agent under this Agreement, upon agreement of the parties hereto. Such substitution shall not be deemed to affect the rights or obligations of the parties. Upon any such substitution, the Escrow Agent agrees to assign to such substitute Escrow Agent its rights under this Agreement. 7.02. The Escrow Agent or any successor may at any time resign by giving mailed notice to Lessee and GECPF of its intention to resign and of the proposed date of resignation, which shall be a date not less than thirty (30) days after such notice is deposited in the United States mail with postage fully prepaid, unless an earlier resignation date and the appointment of a successor Escrow Agent shall have been or are approved by Lessee and GECPF. 7.03. The Escrow Agent may appoint an agent to exercise any of the powers, rights or remedies granted to the Escrow Agent under this Agreement, and to hold title to property or to take any other action which may be desireable or necessary. Section 8. Administrative Provisions. 8.01. The Escrow Agent shall keep complete and accurate records of all moneys received and disbursed under this Agreement, which shall be available for inspection by Lessee or GECPF, or the agent of either of them, at any time during regular business hours. 8.02. All written notices to be given under this Agreement shall be given by mail to the party entitled thereto at this address set forth in the attached Exhibit B 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 forty-eight (48) hours after deposit in the United States mail in registered form, with postage fully prepaid. 8.03. This Agreement shall be construed and governed in accordance with the laws of the State of California. 8.04. Any provision of this Agreement found to be prohibited by law shall be ineffective only to the extent of such prohibition, and shall not invalidate the remainder of this Agreement. 2 8.05. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns. Specifically, as used herein the term "GECPF" as used herein means any person or entity to whom GECPF has assigned its right to receive Rental Payments under the Lease and any payments due to GECPF hereunder from and after the date when a duplicate original of such assignment is filed with the Escrow Agent. 8_06. This Agreement may be simultaneously executed in several counterparts, each of which shall be an original and ell of which shall constitute but one and the same Agreement. 8.07. This Agreement shall terminate upon disbursement by the Escrow Agent of all moneys held by it hereunder. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first written above. National City Bank of Minneapolis, Escrow Age By ItsY'' GE CAP PUBLIC FINANCE, INC., Lessor By 4� Its V r The City $an Rafael By Its��- 3