MASTER EQUIPMENT LEASE/PURCHASE AGREEMENT
This Master Equipment Lease/Purchase Agreement (the "Agreement") dated as of June 1, 2012 and entered into between Banc of America Public Capital Corp, a Kansas corporation ("Lessor"), and City of Salinas, a charter city and municipal corporation existing under the laws of the State of California ("Lessee ").
WITNESSETH:
WHEREAS, Lessee desires to lease and acquire from Lessor certain Equipment described in each Schedule (as each such term is defined herein), subject to the terms and conditions of and for the purposes set forth in each Lease; and in the event of a conflict the terms of a Schedule prevail; and
WHEREAS, the relationship between the parties shall be a continuing one and items of equipment may be added to the Equipment from time to time by execution of additional Schedules by the parties hereto and as otherwise provided herein; and WHEREAS, Lessee is authorized under the constitution and laws of the State to enter into this Agreement and the Schedules hereto for the purposes set forth herein; Now, THEREFORE, for good and valuable consideration, receipt of which is hereby acknowledged, and in consideration of the premises hereinafter contained, the parties hereby agree as follows:
ARTICLE I
Section 1.01. Definitions. The following terms will have the meanings indicated below unless the context clearly requires otherwise:
"Acquisition Amount" means the amount specified in each Lease and represented by Lessee to be sufficient to acquire the Equipment listed in such Lease, which amount shall be not less than $100,000 for each Lease.
"Acquisition Fund" means, with respect to any Lease, the fund established and held by the Acquisition Fund Custodian pursuant to the related Acquisition Fund Agreement, if any. "Acquisition Fund Agreement" means, with respect to any Lease, an Acquisition Fund and Account Control Agreement in form and substance acceptable to and executed by Lessee, Lessor and the Acquisition Fund Custodian, pursuant to which an Acquisition Fund is established and administered.
"Acquisition Fund Custodian" means the Acquisition Fund Custodian identified in any Acquisition Fund Agreement, and its successors and assigns. #7 6567 4 v l (BAPCC/CA Abatement Lease Template) CA Abatement "Acquisition Period" means, with respect to each Lease, that period stated in the Schedule to such Lease during which the Lease Proceeds attributable to such Lease may be expended on Equipment Costs.
"Agreement" means this Master Equipment Lease/Purchase Agreement, including the exhibits hereto, together with any amendments and modifications to the Agreement pursuant to Section 13.05.
"Code" means the Internal Revenue Code of 1986, as amended. Each reference to a Section of the Code herein shall be deemed to include the United States Treasury Regulations proposed or in effect thereunder.
"Commencement Date" means, for each Lease, the date when Lessee's obligation to pay rent commences under such Lease, which date shall be the earlier of (i) the date on which the Equipment listed in such Lease is accepted by Lessee in the manner described in Section 5.01, and (ii) the date on which sufficient moneys to purchase the Equipment listed in such Lease are deposited for that purpose with an Acquisition Fund Custodian. "Equipment " means the property listed in each of the Leases and all replacements, repairs, restorations, modifications and improvements thereof or thereto made pursuant to Section 8.01 or Article V. Whenever reference is made in this Agreement to Equipment listed in a Lease, such reference shall be deemed to include all such replacements, repairs, restorations, modifications and improvements of or to such Equipment. "Equipment Costs" means the total cost of the Equipment listed in each Lease, including all delivery charges, installation charges, capitalizable consulting and training fees approved by Lessor, legal fees, financing costs, and other costs necessary to vest full, clear legal title to the Equipment in Lessor, and otherwise incurred in connection with the financing provided by the lease-purchase of the Equipment as provided in each Lease; provided that in no event shall approved consulting and training fees or other non-capitalizable "soft" costs relating to the Equipment listed in any Lease which are to be financed by Lessor hereunder exceed 2% of the total cost of such Equipment as determined by Lessor; and provided further, that in no event shall capitalizable delivery charges, installation charges, taxes and similar capitalizable "soft costs" relating to such Equipment be included without Lessor's prior consent. "Expense Fund" means, with respect to any Lease, the fund established and held by the Acquisition Fund Custodian pursuant to the related Acquisition Fund Agreement , if any. "Event of Default " means an Event of Default described in Section 12.01. "Lease " means a Schedule and the terms of this Agreement which are incorporated by reference into such Schedule. Each Schedule shall constitute a separate and independent Lease. "Lease Proceeds " means, with respect to each Lease, the total amount of money to be paid by Lessor to the Acquisition Fund Custodian for deposit and application in accordance with such Lease and the Acquisition Fund Agreement.
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"Lease Term" for each Lease shall begin on the Commencement Date thereof and continue as specified in the Schedule applicable thereto. "Lessee" means the entity referred to as Lessee in the first paragraph of this Agreement. "Lessor" means (a) the entity referred to as Lessor in the first paragraph of this Agree ment or (b) any assignee or transferee of any right, title or interest of Lessor in and to the Equipment under a Lease or any Lease (including Rental Payments thereunder) pursuant to Section 11.01, but does not include any entity solely by reason of that entity retaining or assuming any obligation of Lessor to perform under a Lease. "Maximum Equipment Cost" means $3,000,000.00.
"Purchase Price" means, with respect to the Equipment listed on a Lease, the amount that Lessee may pay to Lessor to purchase such Equipment as provided in such Lease. "Rental Payments" means the basic rental payments payable by Lessee under each Lease pursuant to Section 4.01, in each case consisting of a principal component and an interest component.
"Schedule " means each separately numbered Schedule of Property substantially in the form of Exhibit A hereto together with a Rental Payment Schedule attached thereto substantially in the form of Exhibit A- 1 hereto.
"State " means the State of California.
"Utilization Period" means the date by which Lessee must deliver an Acceptance Certificate for the Equipment under such Lease as indicated in Section 3.05(b). "Vendor" means the manufacturer or supplier of the Equipment or any other person as well as the agents or dealers of the manufacturer or supplier from whom Lessor arranged Lessee's acquisition and financing of the Equipment pursuant to the applicable Lease.
ARTICLE II
Section 2.01. Representations and Covenants of Lessee. Lessee represents, covenants and warrants for the benefit of Lessor on the date hereof and as of the Commencement Date of each Lease as follows:
(a) Lessee is a state or a political subdivision thereof within the meaning of Section 103( c) of the Code, duly organized and existing under the constitution and laws of the State with full power and authority to enter into this Agreement and each Lease and the transactions contemplated hereby and to perform all of its obligations hereunder and under each Lease.
(b) Lessee has duly authorized the execution and delivery of this Agreement and each Lease by proper action of its governing body at a meeting duly called, regularly convened and attended throughout by the requisite quorum of the members thereof, or by other appropriate #765674vl (BAPCC/CA Abatement Lease Template) 3
official approval , and all requirements have been met and procedures have occurred in order to ensure the validity and enforceability of this Agreement and each Lease. ( c) No event or condition that constitutes, or with the giving of notice or the lapse of time or both would constitute, an Event of Default exists at the date hereof. ( d) Lessee will do or cause to be done all things necessary to preserve and keep in full force and effect its existence as a body corporate and politic. ( e) Lessee has complied with such public bidding requirements as may be applicable to this Agreement and each Lease and the acquisition by Lessee of the Equipment as provided in each Lease.
(f) During the Lease Term, the Equipment will be used by Lessee only for the purpose of performing essential governmental or proprietary functions of Lessee consistent with the permissible scope of Lessee's authority. Lessee does not intend to sell or otherwise dispose of the Equipment or any interest therein prior to the last Rental Payment (including all Renewal Terms) scheduled to be paid under each Lease.
(g) Lessee shall keep its books and records in accordance with generally accepted accounting principles and practices consistently applied and shall deliver to Lessor (i) annual audited financial statements (including (1) a balance sheet, (2) statement of revenues, expense s and changes in fund balances for budget and actual, (3) statement of cash flows and notes , and ( 4) schedules and attachments to the financial statements) within 210 days of its fiscal year end, (ii) such other financial statements and information as Lessor may reasonably request , and (iii) its annual budget for the following fiscal year within 90 days of the current fiscal year end. Such annual audited financial statements shall be accompanied by an unqualified opinion of Lessee ' s auditor. Credit information relating to Lessee may be disseminated among Lessor and any of its affiliates and any of their respective successors and assigns. (h) Lessee has kept, and throughout the Lease Term of this Agreement will keep, its books and records in accordance with generally accepted accounting principles. (i) Lessee has an immediate need for the Equipment listed on each Schedule and expects to make immediate use of the Equipment listed on each Schedule. Lessee 's need for the Equipment is not temporary and Lessee does not expect the need for any item of the Equipment to diminish during the Lease Term to such item.
G) The payment of the Rental Payments or any portion thereof is not (under the terms of any Lease or any underlying arrangement) directly or indirectly (x) secured by any interest in property used or to be used in any activity carried on by any person other than a state or local governmental unit or payments in respect of such property; or (y) on a present value basis, derived from payments (whether or not to Lessee) in respect of property, or borrowed money, used or to be used in any activity carried on by any person other than a state or local governmental unit. The Equipment will not be used, directly or indirectly, in any activity carried on by any person other than a state or local governmental unit. No portion of the Equipment Costs for the Equipment will be used, directly or indirectly , to make or finance loans to any #765674v l (BAPCC/CA Abatement Lease Template) 4
person other than Lessee. Lessee has not entered into any management or other service contract with respect to the use and operation of the Equipment. (k) There is no pending litigation, tax claim, proceeding or dispute that may adversely affect Lessee's financial condition or impairs its ability to perform its obligations hereunder.
Lessee will, at its expense, maintain its legal existence in good standing and do any further act and execute, acknowledge, deliver, file, register and record any further documents Lessor may reasonably request in order to protect Lessor's interest in the Equipment and Lessor's rights and benefits under this Lease.
ARTICLE Ill
Section 3.01. Lease of Equipment. Subject to the terms of this Master Lease, Lessor agrees to provide the funds specified in each Lease to be provided by it to acquire the Equipment, up to an amount equal to the Maximum Equipment Cost. Upon the execution of each Lease, Lessor demises, leases, transfers and lets to Lessee, and Lessee acquires, rents and leases from Lessor, the Equipment as set forth in such Lease and in accordance with the terms thereof.
Section 3. 02. Continuation of Lease Term. Lessee intends, subject to Section 3.03, to continue the Lease Term of each Lease and to pay the Rental Payments thereunder. Lessee affirms that sufficient funds are available for the current fiscal year, and Lessee reasonably believes that an amount sufficient to make all Rental Payments during the entire Lease Term of each Lease can be obtained from legally available funds of Lessee. Lessee further intends to do all things lawfully within its power to obtain and maintain funds sufficient and available to discharge its obligation to make Rental Payments due hereunder, including making provision for such payments to the extent necessary in each budget or appropriation request submitted and adopted in accordance with applicable provisions of law, to have such portion of the budget or appropriation request approved and to exhaust all available reviews and appeals in the event such portion of the budget or appropriation request is not approved.
Section 3. 03. Abatement. During any period in which, by reason of material damage or destruction or taking under the power of eminent domain ( or sale to any entity threatening the use of such power) or material title defect with respect to any Equipment, there is substantial interference with the use and possession by Lessee of such Equipment, the rent applicable to such Equipment shall be abated proportionately in whole or in part. Lessee shall immediately notify Lessor upon the occurrence of any event causing substantial interference with Lessee's use and possession of any Equipment, and such notice shall be provided prior to the abatement of any rent. The amount of abatement shall be such that the remaining rental obligation for each rental period represents fair consideration for the use and possession of the portions of the Equipment that are not affected by such interference. Such abatement shall commence on the date that Lessee's use and possession of the affected Equipment is restricted because of such interference and end on the earlier of (i) the date on which the use and possession thereof are restored to Lessee, or (ii) the date on which Lessee either (x) replaces the affected Equipment or (y) uses the proceeds of insurance or condemnation award to pay the applicable Purchase Price therefor.
Notwithstanding any such interference with Lessee's use and possession of a portion of the Equipment, this Lease shall continue in full force and effect with respect to any remaining #765674vl (BAPCC /CA Abatement Lease Template) 5
Equipment. Lessee waives the benefits of Civil Code Sections 1932 and any and all other rights to terminate this Lease by virtue of any interference with the use and possession of any Equipment.
Section 3. 04. Conditions to Lessor's Performance.
(a) As a prerequisite to the performance by Lessor of any of its obligations pursuan t to any Lease, Lessee shall deliver to Lessor the following:
(i) A fully completed Schedule, executed by Lessee;
(ii) An Acquisition Fund Agreement, executed by Lessee and the Acquisition Fund Custodian, unless Lessor pays 100% of the Acquisition Amount directly to the Vendor upon execution of the Lease;
(iii) A Certificate executed by the Clerk or Secretary or other comparable officer of Lessee, in substantially the form attached hereto as Exhibit C, completed to the satisfaction of Lessor;
(iv) A certified copy of a resolution or other official action of Lessee's governing body authorizing the execution and delivery of this Lease and performance by Lessee of its obligations hereunder;
(v) An opinion of counsel to Lessee in substantially the form attached hereto as Exhibit D respecting such Lease and otherwise satisfactory to Lessor; (vi) Evidence of insurance as required by Section 7 .02 hereof; (vii) All documents, including financing statements, affidavits, notices and similar instruments, in form satisfactory to Lessor, which Lessor deems necessary or appropriate at that time pursuant to Section 6.01 and 6.02; (viii) A copy of a fully completed and executed Form 8038; (ix) An Essential Use/Source of Funds Certificate in substantially the fom1 attached as Exhibit E; and
(x) Such other items, if any, as are set forth in such Lease or are reasonably required by Lessor.
(b) In addition, the performance by Lessor of any of its obligations pursuant to any Lease shall be subject to: (i) no material adverse change in the financial condition of Lessee since the date of this Lease, (ii) no Event of Default having occurred, and (iii) if no Acquisition Fund has been established, the Equipment must be accepted by Lessee no later than December 31, 2013 (the "Utilization Period").
(c) Subject to satisfaction of the foregoing, Lessor will pay the Acquisition Amount for Equipment described in a Schedule to the Vendor upon receipt of the documents described in Sections 5.0l(a) and (b); or if an Acquisition Fund has been established pursuant to an #765674vl (BAPCC/CA Abatement Lease Template) 6
Acquisition Fund Agreement, Lessor will deposit the Acquisition Amount for Equipment described in the Schedule with the Acquisition Fund Custodian. ( d) This Agreement is not a commitment by Lessor to enter into any Lease not currently in existence, and nothing in this Agreement shall be construed to impose any obligation upon Lessor to enter into any proposed Lease, it being understood that whether Lessor enters into any proposed Lease shall be a decision solely within Lessor's discretion. (e) Lessee will cooperate with Lessor in Lessor's review of any proposed Lease.
Without limiting the foregoing, Lessee will provide Lessor with any documentation or information Lessor may request in connection with Lessor's review of any proposed Lease. Such documentation may include, without limitation, documentation concerning the Equipment and its contemplated use and location and documentation or information concerning the financial status of Lessee and other matters related to Lessee.
ARTICLE IV
Section 4.01. Rental Payments. Lessee shall promptly pay Rental Payments, in lawful money of the United States of America, to Lessor on the dates and in such amounts as provided in each Lease. Lessee shall pay Lessor a charge on any Rental Payment not paid on the date such payment is due at the rate of 12% per annum or the maximum amount permitted by law, whichever is less, from such date. Lessee shall not permit the federal government to guarantee any Rental Payments under any Lease. Rental Payments consist of principal and interest payments as more fully detailed on each Schedule, the interest on which begins to accrue as of the Commencement Date for each such Schedule.
Section 4. 02. Interest and Principal Components. A portion of each Rental Payment is paid as, and represents payment of, interest, and the balance of each Rental Payment is paid as, and represents payment of, principal. Each Lease shall set forth the principal and interest components of each Rental Payment payable thereunder during the Lease Term.
Section 4.03. Rental Payments to Constitute a Current Expense of Lessee. Lessor and Lessee understand and intend that the obligation of Lessee to pay Rental Payments under each Lease shall constitute a current expense of Lessee payable solely from its general fund or other funds that are legally available for that purpose and shall not in any way be construed to be a debt of Lessee in contravention of any applicable constitutional or statutory limitation or requirement concerning the creation of indebtedness by Lessee, nor shall anything contained herein or in a Lease constitute a pledge of the general tax revenues, funds or moneys of Lessee.
Section 4.04. Rental Payments to be Unconditional. Except as provided in Section 3.03, the obligations of Lessee to make Rental Payments and to perform and observe the other covenants and agreements contained in each Lease shall be absolute and unconditional in all events without abatement, diminution, deduction, set-off or defense, for any reason, including without limitation any failure of the Equipment, after it has been accepted by lessee, any defects, malfunctions, breakdowns or infirmities in the equipment or any accident, condemnation or unforeseen circumstances . Lessee' s obligations to make Rental Payments or pay other amounts #765674vl (BAPCC/CA Abatement Lease Template) 7
hereunder shall not be abated on account of obsolescence or failure of the Equipment to perform as desired.
Section 4. 05. Tax Covenant. Lessee agrees that it will not take any action that would cause the interest component of Rental Payments to be or to become ineligible for the exclusion from gross income of the owner or owners thereof for federal income tax purposes, nor will it omit to take or cause to be taken, in timely manner, any action, which omission would cause the interest component of Rental Payments to be or to become ineligible for the exclusion from gross income of the owner or owners thereof for federal income tax purposes.
Section 4. 06. Event of Taxability. Upon the occurrence of an Event of Taxability, the interest component shall be at a Taxable Rate retroactive to the date as of which the interest component is determined by the Internal Revenue Service to be includible in the gross income of the owner or owners thereof for federal income tax purposes, and Lessee will pay such additional amount as will result in the owner receiving the interest component at the Taxable Rate identified in the related Lease.
For purposes of this Section, "Event of Taxability " means a determination that the interest component is includible for federal income tax purposes in the gross income of the owner thereof due to Lessee ' s action or failure to take any action.
Section 4. 07. Mandatory Prepayment. If the Lease Proceeds are deposited into an Acquisition Fund, any funds remaining in the Acquisition Fund on or after the Acquisition Period and not applied to Equipment Costs, shall be applied by Lessor on the next Rental Payment date, pro rata to the prepayment of the principal component of the outstanding Rental Payments due under the applicable Schedule.
ARTICLE V
Section 5. OJ. Delivery, Installation and Acceptance of Equipment. (a) Lessee shall order the Equipment, cause the Equipment to be delivered and installed at the location specified in the Leases and pay any and all delivery and installation costs and other Equipment Costs in connection therewith. When the Equipment listed in any Lease has been delivered and installed, Lessee shall promptly accept such Equipment and evidence said acceptance by executing and delivering to Lessor an acceptance certificate in the form attached hereto as Exhibit B.
(b) Lessee shall deliver to Lessor original invoices and bills of sale (if title to such Equipment has passed to Lessee) relating to each item of Equipment accepted by Lessee. With respect to Equipment not purchased through an Acquisition Fund, Lessor shall, upon receipt of an Acceptance Certificate from Lessee, prepare a Schedule of Property and Rental Payment Schedule. Lessee shall execute and deliver such Schedules to Lessor within 5 business days of receipt.
Section 5. 02. Enjoyment of Equipment. Lessor shall provide Lessee with quiet use and enjoyment of the Equipment during the Lease Term, and Lessee shall peaceably and quietly have, #765674vl (BAPCC/CA Abatement Lease Template) 8
hold and enjoy the Equipment during the Lease Term, without suit, trouble or hindrance from Lessor, except as otherwise expressly set forth in the related Lease. Lessor shall not interfere with such quiet use and enjoyment during the Lease Term so long as Lessee is not in default under the related Lease.
Section 5. 03. Location; Inspection. Once installed, no item of the Equipment will be moved (or, in the case of moveable equipment, the base location of the Equipment will not be changed) from the location specified for it in the Lease on which such item is listed without Lessor's consent, which consent shall not be unreasonably withheld. Lessor shall have the right at all reasonable times during regular business hours to enter into and upon the property of Lessee for the purpose of inspecting the Equipment.
Section 5. 04. Use and Maintenance of the Equipment. Lessee will not install, use, operate, or maintain the Equipment improperly, carelessly, in violation of any applicable law or in a manner contrary to that contemplated by the related Lease. Lessee shall provide all permits and licenses, if any, necessary for the installation and operation of the Equipment. In addition, Lessee agrees to comply in all respects with all applicable laws, regulations and rulings of any legislative, executive, administrative, or judicial body; provided that Lessee may contest in good faith the validity or application of any such law, regulation or ruling in any reasonable manner that does not, in the opinion of Lessor, adversely affect the interest (including the reversionary interest) of Lessor in and to the Equipment or its interest or rights under the Lease.
Lessee agrees that it will maintain, preserve, and keep the Equipment in good repair and working order, in accordance with manufacturer's recommendations. Lessor shall have no responsibility to maintain, repair or make improvements or additions to the Equipment. If commercially available, Lessee will maintain in force a standard maintenance contract with the manufacturer of the Equipment, and upon request will provide Lessor with a copy of that contract. Upon the prior written consent of Lessor, which consent shall not be unreasonably withheld, Lessee may use another third party maintenance provider provided the maintenance contract between Lessee and such third party requires the third party to maintain the Equipment at the manufacturer's then current release, revision and engineering change levels, including hardware, software enhancements and microcode levels. In all cases, Lessee agrees to pay any costs necessary for the manufacturer to re-certify the Equipment as eligible for manufacturer's maintenance upon the return of the Equipment to Lessor as provided for herein.
Lessee shall not alter any item of Equipment or install any accessory, equipment or device on an item of Equipment if that would impair any applicable warranty, the originally intended function or the value of that Equipment. All repairs, parts, accessories, equipment and devices furnished, affixed to or installed on any Equipment, excluding temporary replacements, shall thereupon become subject to the interest of Lessor therein.
ARTICLE VI
Section 6.01. Title to the Equipment. During each Lease Term, and so long as Lessee is not in default under Article XII hereof, all right, title and interest in and to each item of the Equipment shall be vested in Lessor as security for the obligations of Lessee hereunder. Lessee shall at all times protect and defend, at its own cost and expense, Lessor's title in and to the #765674vl (BAPCC/CA Abatement Lease Template) 9
Equipment from and against all claims, liens and legal processes of its creditors, and keep all Equipment free and clear of all such claims, liens and processes. Upon purchase of the Equipment under a Lease by Lessee pursuant to Section 10.01, Lessor shall transfer to Lessee title to the Equipment, as-is, without warranty of any kind other than as to the absence of liens created by or through Lessor, and shall execute and deliver to Lessee such documents as Lessee may reasonably request to evidence the transfer of Lessor's title and interest in the Equipment subject to the related Lease.
Section 6. 02. Security Interest. As additional security for the payment of all of Lessee's obligations under each Lease, upon the execution of such Lease, Lessee grants to Lessor a security interest constituting a first lien on (a) the Equipment applicable to such Lease, (b) moneys and investments held from time to time in the Acquisition Fund and ( c) any and all proceeds of any of the foregoing. Lessee agrees to execute and authorizes Lessor to file such notices of assignment, chattel mortgages, financing statements and other documents, in form satisfactory to Lessor, which Lessor deems necessary or appropriate to establish and maintain Lessor's security interest in the Equipment, the Acquisition Fund and the proceeds thereof.
Section 6. 03. Personal Property. The Equipment is and will remain personal property and will not be deemed to be affixed to or a part of the real estate on which it may be situated, notwithstanding that the Equipment or any part thereof may be or hereafter become in any manner physically affixed or attached to real estate or any building thereon. Upon the request of Lessor, Lessee will, at Lessee's expense, furnish a waiver of any interest in the Equipment from any party having an interest in any such real estate or building.
ARTICLE VII
Section 7.01. Liens, Taxes, Other Governmental Charges and Utility Charges. Lessee shall keep the Equipment free of all levies, liens, and encumbrances except those created by each Lease. The parties to this Agreement contemplate that the Equipment will be used for a governmental or proprietary purpose of Lessee and that the Equipment will therefore be exempt from all property taxes. If the use, possession or acquisition of any Equipment is nevertheless determined to be subject to taxation, Lessee shall pay when due all taxes and governmental charges lawfully assessed or levied against or with respect to such Equipment. Lessee shall pay all utility and other charges incurred in the use and maintenance of the Equipment. Lessee shall pay such taxes or charges as the same may become due; provided that, with respect to any such taxes or charges that may lawfully be paid in installments over a period of years, Lessee shall be obligated to pay only such installments as accrue during each Lease Term.
Section 7.02. Insurance . Lessee shall during each Lease Term maintain or cause to be maintained (a) casualty insurance naming Lessor and its assigns as additional insured and loss payee and insuring the Equipment against loss or damage by fire and all other risks covered by the standard extended coverage endorsement then in use in the State, and any other risks reasonably required by Lessor, in an amount at least equal to the then applicable Purchase Price of the Equipment; (b) liability insurance that protects Lessor from liability in all events in form and amount satisfactory to Lessor; ( c) worker's compensation coverage as required by the laws of the State, and ( d) rental interruption insurance in an amount which shall cover Rental Payments for no less than 24 months; provided that, with Lessor's prior written consent, Lessee may self- #765674vl (BAPCC/CA Abatement Lease Template) 10
insure against the risks described in clause (a). Lessee shall furnish to Lessor evidence of such insurance or self-insurance coverage throughout each Lease Term. Lessee shall not cancel or modify such insurance or self-insurance coverage in any way that would affect the interests of Lessor without first giving written notice thereof to Lessor at least 30 days in advance of such cancellation or modification.
Section 7.03. Advances. In the event Lessee shall fail to keep the Equipment in good repair and working order, Lessor may, but shall be under no obligation to, maintain and repair the Equipment and pay the cost thereof. All amounts so advanced by Lessor shall constitute additional rent for the Lease Term and Lessee covenants and agrees to pay such amounts so advanced by Lessor with interest thereon from the due date until paid at the rate of 12% per annum or the maximum amount permitted by law, whichever is less.
ARTICLE VIII
Section 8.01. Damage, Destruction and Condemnation. Unless Lessee shall have exercised its option to purchase the Equipment by making payment of the Purchase Price as provided in the related Lease, if, prior to the termination of the applicable Lease Term, (a) the Equipment or any portion thereof is destroyed, in whole or in part, or is damaged by fire or other casualty or (b) title to, or the temporary use of, the Equipment or any part thereof shall be taken under the exercise or threat of the power of eminent domain by any governmental body or by any person, firm or corporation acting pursuant to governmental authority, Lessee and Lessor will cause the Net Proceeds of any insurance claim or condemnation award or sale under threat of condemnation to be applied to the prompt replacement, repair, restoration, modification or improvement of the Equipment. Any balance of the Net Proceeds remaining after such work has been completed shall be paid to Lessee.
If Lessee elects to replace any item of the Equipment (the "Replaced Equipment ") pursuant to this Section, the replacement equipment (the "Replacement Equipment ") shall be of similar type, utility and condition to the Replaced Equipment and shall be of equal or greater value than the Replaced Equipment. Lessee shall represent, warrant and covenant to Lessor that each item of Replacement Equipment is free and clear of all claims, liens, security interests and encumbrances, excepting only those liens created by or through Lessor, and shall provide to Lessor any and all documents as Lessor may reasonably request in connection with the replacement, including, but not limited to, documentation in form and substance satisfactory to Lessor evidencing Lessor's title in the Replacement Equipment. Lessor and Lessee hereby acknowledge and agree that any Replacement Equipment acquired pursuant to this paragraph shall constitute "Equipment" for purposes of this Master Equipment Lease and the related Lease.
Lessee shall complete the documentation of Replacement Equipment on or before the next Rent Payment date after the occurrence of a casualty event, or be required to exercise the Purchase Option with respect to the damaged equipment.
For purposes of this Article, the term "Net Proceeds" shall mean the amount remaining from the gross proceeds of any insurance claim or condemnation award or sale under threat of condemnation after deducting all expenses, including attorneys' fees, incurred in the collection thereof.
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Section 8. 02. Insufficiency of Net Proceeds. If the Net Proceeds are insufficient to pay in full the cost of any repair, restoration, modification or improvement referred to in Section 8.01, Lessee shall either (a) complete such replacement, repair, restoration, modification or improvement and pay any costs thereof in excess of the amount of the Net Proceeds, or (b) pay or cause to be paid to Lessor the amount of the then applicable Purchase Price for the Equipment, and, upon such payment, the applicable Lease Term shall terminate and Lessor's interest in the Equipment shall terminate as provided in Article VI hereof. The amount of the Net Proceeds, if any, remaining after completing such repair, restoration, modification or improvement or after purchasing such Equipment and such other Equipment shall be retained by Lessee. If Lessee shall make any payments pursuant to this Section, Lessee shall not be entitled to any reimbursement therefor from Lessor nor shall Lessee be entitled to any diminution of the amounts payable under Article IV.
Notwithstanding anything to the contrary herein, Lessee's obligations under Article VIIl shall be limited to the Net Proceeds of insurance or condemnation and other legally available funds and is subject in all respects to the provisions of Section 3.03 hereof. If Lessee's obligations under Section 7.02 to maintain property insurance is covered by self insurance, then Lessee hereby certifies that its self insurance program guarantees payment of the interest of Lessor for any loss or damage to the Equipment leased hereunder.
ARTICLE IX
Section 9.01. Disclaimer of Warranties. Lessor makes no warranty or representation, either express or implied, as to the value, design, condition, merchantability or fitness for particular purpose or fitness for use of the Equipment, or any other warranty or representation, express or implied, with respect thereto and, as to Lessor, Lessee's acquisition of the Equipment shall be on an "as is" basis. In no event shall Lessor be liable for any incidental, indirect, special or consequential damage in connection with or arising out of this Master Equipment Lease, any Lease, the Equipment or the existence, furnishing, functioning or Lessee's use of any item, product or service provided for in this Agreement or any Lease.
Section 9. 02. Vendor's Warranties. Lessor hereby irrevocably appoints Lessee its agent and attorney-in-fact during each Lease Term, so long as Lessee shall not be in default under the related Lease, to assert from time to time whatever claims and rights (including without limitation warranties) relating to the Equipment that Lessor may have against Vendor. Lessee's sole remedy for the breach of such warranty, indemnification or representation shall be against Vendor of the Equipment, and not against Lessor. Any such matter shall not have any effect whatsoever on the rights of Lessor with respect to any Lease, including the right to receive full and timely payments under a Lease. Lessee expressly acknowledges that Lessor makes, and has made, no representations or warranties whatsoever as to the existence or the availability of such warranties by Lessor of the Equipment.
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ARTICLEX
Section I 0. O 1. Purchase Option. Lessee shall have the option to purchase all of the Equipment listed in a Lease, upon giving written notice to Lessor at least 30, but not more than 120, days before the date of purchase , at the following times and upon the following terms:
(a) After 50% of the Lease Term has transpired (such date is referred to as the "Purchase Option Commencement Date"), on any Rental Payment dates subsequent thereto , upon payment in full to Lessor of the Rental Payments then due under such Lease, subject to a prepayment premium of 2% of the then outstanding principal balance of the Lease, any and all accrued interest; or
(b) In the event of substantial damage to or destruction or condemnation of substantially all of the Equipment listed in a Lease, on the day specified in Lessee's notice to Lessor of its exercise of the purchase option upon payment in full to Lessor of the Rental Payments then due under such Lease plus the then applicable Purchase Price; or (c) Upon the expiration of the Lease Term, upon payment in full of all Rental Payments then due and all other amounts then owing under the Lease, and the payment of $1.00 to Lessor.
After payment of the applicable Purchase Price, Lessee will own the related Equipment, and Lessor's right, title and interests in and to such Equipment will be transferred and terminated in accordance with Section 6.01.
ARTICLE XI
Section JI.OJ. Assignment by Lessor. Lessor's right, title and interest in and to Rental Payments and any other amounts payable by Lessee under any and all of the Leases , its interest in the Equipment subject to each such Lease, and all proceeds therefrom may be assigned and reassigned in whole or in part to one or more assignees or subassignees by Lessor, without the necessity of obtaining the consent of Lessee; provided, however, that any such assignmen t, transfer or conveyance whether to a trustee for the benefit of owners of certificates of participation or otherwise shall be made in a manner that conforms to any applicable State or federal law. Nothing in this Section 11.01 shall be construed, however, to prevent Lessor from executing any such assignment, transfer or conveyance that does not involve funding through the use of certificates of participation within the meaning of applicable State law, including any such assignment, transfer or conveyance as part of a multiple asset pool to a partnership or trust, interests in which are offered and sold in a private placement or limited offering only to investors whom Lessor reasonably believes are qualified institutional buyers or accredited investors within the meaning of the applicable federal securities law; provided further , however, that in any event, Lessee shall not be required to make Rental Payments , to send notices or to otherwise deal with respect to matters arising under a Lease with or to more than one individual or entity. No assignment, transfer or conveyance permitted by this Section 11.01 shall be effective until Lessee shall have received a written notice of assignment that discloses the name and address of each such assignee; provided, however, that if such assignment is made to a bank or trust company as trustee or paying agent for owners of certificates of participation , trust certificates or partnership #765674vl (BAPCC/CA Abatement Lease Template) 13
interests with respect to the Rental Payments payable under a Lease, it shall thereafter be sufficient that Lessee receives notice of the name and address of the bank or trust company as trustee or paying agent. During the term of each Lease, Lessee shall keep, or cause to be kept, a complete and accurate record of all such assignments in form necessary to comply with Section 149 of the Code. Lessee shall retain all such notices as a register of all assignees and shall make all payments to the assignee or assignees designated in such register. Lessee shall not have the right to and shall not assert against any assignee any claim, counterclaim or other right Lessee may have against Lessor or the Vendor. Assignments in part may include without limitation assignment of all of Lessor's interest in and to the Equipment listed in a particular Lease and all rights in, to and under the Lease related to such Equipment. The option granted in this Section may be separately exercised from time to time with respect to the Equipment listed in each Lease, but such option does not permit the assignment of less than all of Lessor's interests in the Equipment listed in a single Lease.
Section 11.02. Assignment and Subleasing by Lessee. None of Lessee's right, title, and interest in, to and under any Lease or any portion of the Equipment may be assigned or encum bered by Lessee for any reason.
ARTICLE XII
Section 12. 0 I. Events of Default Defined. Any of the following events shall constitute an "Event of Default" under a Lease:
(a) Failure by Lessee to pay any Rental Payment or other payment required to be paid under any Lease at the time specified herein;
(b) 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 subparagraph (a) above, for a period of 30 days after written notice specifying such failure and requesting that it be remedied is given to Lessee by Lessor, unless Lessor shall agree in writing to an extension of such time prior to its expiration; provided that, 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;
( c) Any statement, representation or warranty made by Lessee in or pursuant to any Lease or its execution, delivery or performance shall prove to have been false, incorrect, misleading, or breached in any material respect on the date when made; (d) Any default occurs under any other agreement for borrowing money or receiving credit equal to or greater than $500,000.00 under which Lessee may be obligated as borrower, if such default consists of (i) the failure to pay any indebtedness when due or (ii) the failure to perform any other obligation thereunder and gives the holder of the indebtedness the right to accelerate the indebtedness;
(e) Lessee shall (i) apply for or consent to the appointment of a receiver, trustee, custodian or liquidator of Lessee, or of all or a substantial part of the assets of Lessee, (ii) be #765674vl (BAPCC/CA Abatement Lease Template) 14
unable, fail or admit in writing its inability generally to pay its debts as they become due, (iii) make a general assignment for the benefit of creditors, (iv) have an order for relief entere d against it under applicable federal bankruptcy law, or (v) file a voluntary petition in bankruptcy or a petition or an answer seeking reorganization or an arrangement with creditors or taking advantag e of any insolvency law or any answer admitting the material allegations of a petition filed against Lessee in any bankruptcy, reorganization or insolvency proceeding; or (f) An order, judgment or decree shall be entered by any court of competen t jurisdiction, approving a petition or appointing a receiver, trustee, custodian or liquidator or Lessee or of all or a substantial part of the assets of Lessee, in each case without its application , approval or consent, and such order, judgment or decree shall continue unstayed and in effect for any period of 30 consecutive days.
Section I 2. 02. Remedies on Default. Whenever any Event of Default exists, Lessor shall have the right, at its sole option without any further demand or notice, to take one or any combination of the following remedial steps:
(a) By written notice to Lessee, Lessor may without terminating such Lease, collect each Rental Payment payable by Lessee pursuant to such Lease and other amounts payable by Lessee under such Lease as they become due and payable; (b) With or without terminating the Lease Term under such Lease, Lessor may enter the premises where the Equipment listed in such Lease is located and retake possession of such Equipment or require Lessee at Lessee's expense to promptly return any or all of such Equipment to the possession of Lessor at such place within the United States as Lessor shall specify, and sell or lease such Equipment or, for the account of Lessee, sublease such Equipment, continuing to hold Lessee liable, but solely from legally available funds, for the difference between (i) the Rental Payments payable by Lessee pursuant to such Lease and other amounts related to such Lease or the Equipment listed therein that are payable by Lessee to the end of the Lease Term, and (ii) the net proceeds of any such sale, leasing or subleasing (after deducting all expenses of Lessor in exercising its remedies under such Lease, including without limitation all expenses of taking possession, storing, reconditioning and selling or leasing such Equipment and all brokerage, auctioneer's and attorney's fees), subject, however, to the provisions of Section 3.03.
The exercise of any such remedies respecting any such Event of Default shall not relieve Lessee of any other liabilities under any other Lease or the Equipment listed therein ; ( c) Lessor may take whatever action at law or in equity may appear neces sary or desirable to enforce its rights under such Lease or as a secured party in any or all of the Equipment subject to such Lease; and
(d) by action pursuant to the California Code of Civil Procedure, or as otherwise provided by law, obtain the issuance of a writ of mandamus enforcing, for the entire balance of the remaining Lease Term, the duty of Lessee to appropriate and take all other administrative steps necessary for the payment of rents, and other amounts due hereunder.
Section 12.03. No Remedy Exclusive. No remedy herein conferred upon or reserved to Lessor is intended to be exclusive and every such remedy shall be cumulative and shall be in addition to every other remedy given under a Lease now or hereafter existing at law or in equity, #765674vl (BAPCC/CA Abatement Lease Template) 15
provided that Lessor shall have no right to accelerate any Rental Payment or otherwise declare any Rental Payment or other amount payable not then in default to be immediately due and payable. 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 or power may be exercised from time to time and as often as may be deemed expedient. In order to entitle Lessor to exercise any remedy reserved to it in this Article it shall not be necessary to give any notice other than such notice as may be required in this Article.
Section 12. 04. Application of Moneys. Any net proceeds from the exercise of any remedy under this Agreement, including the application specified in Section 12.02(b)(ii) (after deducting all expenses of Lessor in exercising such remedies including without limitation all expenses of taking possession, storing, reconditioning and selling or leasing Equipment and all brokerage, auctioneer's or attorney's fees), shall be applied as follows:
(a) If such remedy is exercised solely with respect to a single Lease, Equipment listed in such Lease or rights thereunder, then to amounts due pursuant to such Lease and other amounts related to such Lease or such Equipment.
(b) If such remedy is exercised with respect to more than one Lease, Equipment listed in more than one Lease or rights under more than one Lease, then to amounts due pursuant to such Leases pro rata.
ARTICLE XIII
Section 13.01. Notices. All notices, certificates or other communications under any Lease shall be sufficiently given and shall be deemed given when delivered or mailed by registered mail, postage prepaid, or delivered by overnight courier, or sent by facsimile transmission (with electronic confirmation) to the parties hereto at the addresses immediately after the signatures to this Agreement ( or at such other address as either party hereto shall designate in writing to the other for notices to such party) and to any assignee at its address as it appears on the registration books maintained by Lessee.
Section 13. 02. Release and Indemnification. To the extent permitted by law, but only from legally available funds, Lessee shall indemnify, protect, hold harmless, save and keep harmless Lessor from and against any and all liability, obligation, loss, claim, tax and damage whatsoever, regardless of cause thereof, and all expenses in connection therewith (including, without limitation, counsel fees and expenses, penalties connected therewith imposed on interest received) arising out of or as a result of (a) the entering into of this Agreement or any Lease, (b) the ownership of any item of the Equipment, ( c) the ordering, acquisition, use, operation, condition, purchase, delivery, rejection, storage or return of any item of the Equipment, (d) any accident in connection with the operation, use, condition, possession, storage or return of any item of the Equipment resulting in damage to property or injury to or death to any person, and/or ( e) the breach of any covenant in a Lease or any material misrepresentation contained in a Lease.
The indemnification arising under this paragraph shall continue in full force and effect notwithstanding the full payment of all obligations under all Leases or the termination of the Lease Term under all Leases for any reason.
#7656 74vl (BAPCC/CA Abatement Lease Template) 16
Section 13. 03. Binding Effect. Each Lease shall inure to the benefit of and shall be binding upon Lessor and Lessee and their respective successors and assigns.
Section 13. 04. Severability. In the event any provision of any Lease shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof.
Section 13.05. Amendments, Changes and Modifications. Each Lease may only be amended by Lessor and Lessee in writing.
Section 13. 06. Execution in Counterparts. Each 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. 07. Applicable Law. Each Lease shall be governed by and construed m accordance with the laws of the State.
Section 13.08. Captions. The captions or headings in this Agreement and in each Lease are for convenience only and in no way define, limit or describe the scope or intent of any provisions or sections of this Agreement or any Lease.
#765674vl (BAPCC/CA Abatement Lease Template) 17
IN WITNESS WHEREOF, Lessor and Lessee have caused this Agreement to be executed in their names by their duly authorized representatives as of the date first above written .
LESSOR:
Banc of America Public Capital Corp
555 California Street, 4th Floor
San Francisco, California 94104
By ______________ _
Title _ ___________ _ _
#76 5674vl (BAPCC/CA Abatement Lease Template) 18
LESSEE:
City of Salinas
200 Lincoln A venue
Salinas, California 93901
~itle ~
(Seal)
Attest:
By _ ~ ~~~---r--+-,r-------~
Title 6, ---='-F-'~'---' =,.L-,'--'-....<--1.--------
ARBITRAGE AND TAX CERTIFICATE
(Non Escrow Transaction)
We, the undersigned of the City of Salinas (the "Issuer") do hereby certify that this Certificate is issued pursuant to Sections 1.141-1 through 1.141-16, 1.148-0 through 1.148-11,
1.150-1 and 1.150-2 of the Treasury Regulations (the "Regulations") promulgated pursuant to the Internal Revenue Code of 1986, as amended (the "Code"), to set forth the Issuer's reasonable expectations on the date of issue of the obligations of the Issuer under that certain Lease/Purchase Agreement (as hereinafter defined) and as to future events regarding the amount and use of the proceeds thereof.
The Lease/Purchase Agreement
1. Each of the undersigned is charged, together with other officials and officers, with the responsibility for entering into the $969,759.00 Schedule of Property No. 1, dated as of August 15, 2012 (the "Schedule") between the Issuer and Banc of America Public Capital Corp, (the "Lessor"), which Schedule incorporates by reference the terms of that certain Master Equipment Lease/Purchase Agreement, dated as of June 1, 2012 (the "Master Lease") by and between the Issuer and Banc of America Public Capital Corp (the Schedule and the Master Lease are collectively referred to herein as the "Lease/Purchase Agreement"). The Lease/Purchase Agreement is authorized pursuant to the laws of the State of California and a resolution adopted · by the Issuer on a~, /~, r2:0I ;2. (the "Resolution"). This certificate shall constitute a / I
document related to the Lease/Purchase Agreement.
2. The Lease/Purchase Agreement is being entered into to finance the cost of certain Equipment described in the Lease/Purchase Agreement. As contemplated by the Lease/Purchase Agreement, the Lessor will fund the Equipment Cost to the vendors thereof and will lease the Equipment back to the Issuer, and the Issuer will agree to make rental payments under the Lease/Purchase Agreement (the "Rental Payments") to the Lessor. The Equipment will be used for a corporate and public purpose of the Issuer.
Proceeds
3. The Issuer will receive from the Lessor as a result of the financing of the Equipment as contemplated by the Lease/Purchase Agreement $969,759.00 (the "Equipment Proceeds"). The Equipment Proceeds shall be immediately used for the acquisition of the Equipment or to reimburse the Issuer for the cost of purchasing the Equipment, which purchase did not occur more than sixty (60) days prior to the adoption of the Resolution by Issuer. No investment of the Equipment Proceeds is expected.
4. The total cost of the Equipment is anticipated to be equal to the Equipment Proceeds. It is not anticipated that any proceeds from the issue will be used to pay the expenses of issuing the Lease/Purchase Agreement obligations.
#7654 12v1 (BAPCC)
Equipment
5. The Equipment Proceeds and anticipated investment earnings on such proceeds do not exceed the amount necessary to complete the acquisition of the Equipment.
6. The Issuer represents that the Equipment will not be used in such a manner so as to cause the Lease/Purchase Agreement to constitute "private activity bonds" as defined in Section 141 ( a) of the Code and Sections 1.141-0 through 1.141-16 of the Regulations.
7. All Equipment financed by the Lease/Purchase Agreement will be owned by the Issuer in accordance with Section 141 of the Code. The Issuer represents and covenants that while the Lease/Purchase Agreement is in effect, it will not sell, lease or otherwise dispose of any portion of the Equipment, except that a portion of the Equipment may be disposed of in the normal course such as by reason of obsolescence and normal wear and tear; without providing to the Lessor an opinion of bond counsel that such sale, lease or other disposition will not adversely affect the exclusion of the interest portion of the Rental Payments made under the Lease/Purchase Agreement from the gross income of the Lessor for federal income tax purposes.
8. The Issuer represents that no other obligations of the Issuer (1) were or will be sold within 15 days of the lease of the Equipment as contemplated by the Lease/Purchase Agreement; (2) are being sold pursuant to a plan of financing common with the sales contemplated by the Lease/Purchase Agreement; and (3) are payable from substantially the same source of funds as the Lease/Purchase Agreement.
9. For purposes of this Certificate, "yield" means yield computed by the actuarial method using a 360-day year and semi-annual compounding, resulting in a discount rate which, when used in computing the present worth of all payments of principal and interest to be paid on an obligation, produces an amount equal to the issue price, fair market value, present value or purchase price thereof, as applicable, and is determined in all respects in accordance with Section 148 of the Code and the Regulations.
10. As of the Closing Date, the Issuer expects that the purchase price of $960,000.00 is the issue price of the obligations under the Lease/Purchase Agreement to the public (excluding bond houses, brokers and other intermediaries). Based upon such price, the Issuer expects the yield on the Lease/Purchase Agreement to be computed as 3.00%.
Arbitrage Certifications
11. There are no funds or accounts established with respect to the Lease/Purchase Agreement or the Equipment. No sinking fund has been established in connection with the payment of the principal of and interest under the Lease/Purchase Agreement, and no other similar fund or reserve or replacement fund has or will be created or established, nor does the Issuer expect to create or establish such a fund. The Issuer will pay Rental Payments directly to the Lessor on the due dates thereof.
#765412vl (BAPCC) 2
12. The Lease/Purchase Agreement has a weighted average maturity of __ years.
As of the Closing Date, the Issuer expects that the term of the Lease/Purchase Agreement is not longer than reasonably necessary for the governmental purpose of the Lease/Purchase Agreement. As of the Closing Date, the Issuer does not expect to have available amounts (within the meaning of Section 1.148-1 ( c )( 4) of the Regulations) during the period in which the Lease/Purchase Agreement is in effect.
13. The Issuer acknowledges its rebate obligations under Section 148 of the Code.
The Issuer will maintain such records as to the investments and earnings on the Equipment Proceeds as may be necessary and appropriate to determine the amount, if any, that it is required to rebate to the U.S. Treasury because the earnings on such investments exceed the amount that would have been earned if such proceeds had been invested at the yield payable as the interest portion of the Rental Payments on the Lease/Purchase Agreement. In the event that the Issuer invests any of the Equipment Proceeds or any investment proceeds in investments that have a yield in excess of 3.00%, the Issuer agrees to retain a rebate advisor to assist the Issuer in complying with Section 148 of the Code. The Issuer will make the calculations of its liability, file such reports and make any required payments at the time or times as are now or may hereafter be prescribed under Section 148 ( or a successor provision) of the Code.
14. Except as expressly permitted hereunder, the Issuer will not use any gross proceeds of the Lease/Purchase Agreement to acquire investments with a yield considered as a class higher than the yield payable as the interest portion of the Rental Payments on the Lease/Purchase Agreement or to replace funds which are used to directly or indirectly acquire investments with a yield higher than the yield payable as the interest portion of the Rental Payments on the Lease/Purchase Agreement.
15. The Lease/Purchase Agreement is not and will not be part of a transaction or series of transactions that attempts to circumvent the provisions of Section 148 of the Code or the Regulations (a) enabling the Issuer to exploit the difference between tax-exempt and taxable interest rates to gain a material financial advantage; or (b) overburdening the market for tax exempt obligations.
Miscellaneous
16. The Lease/Purchase Agreement will not be federally guaranteed within the meaning of Section l 49(b) of the Code.
17. The Issuer shall file or cause to be filed, the requisite Form 8038-G on or before the 15th day of the second month after the calendar quarter in which the Lease/Purchase Agreement is executed. The Issuer has reviewed the Form 8038-G prepared for the Lease/Purchase Agreement and all of the information contained therein is, to the best of the Issuer's knowledge, true and complete.
18. At least 85% of the net Equipment Proceeds of the Lease/Purchase Agreement will be allocated to expenditures for the Project no later than three years from the date hereof and therefore not more than 50% of the proceeds of the Lease/Purchase Agreement will be invested #765412v l (BAPCC) 3
in nonpurpose investments (as defined in Section 148(t)(6)(A) of the Code) having a substantially guaranteed yield for four years or more.
19. The Issuer has not received notice of deficiency or other notice from the Interna l Revenue Service, the Department of Treasury or any other governmental agency or departmen t challenging or questioning in any way the status of the interest portion of the Rental Payments as being excludable from gross income for federal income tax purposes, nor has the Issuer been notified of any listing or proposed listing of it by the Internal Revenue Service as an issuer that may not enter into the type of lease/purchase transaction as contemplated here.
On the basis of the foregoing facts, estimates and circumstances in existence on the date hereof it is not expected that the proceeds of the Lease/Purchase Agreement will be used in a manner that would cause the Lease/Purchase Agreement to be "arbitrage bonds" under Section 148 of the Code and the Regulations. To the best of our knowledge and belief there are no other facts, estimates or circumstances which would materially change such expectations.
Dated this 15th day of August, 2012 the same being the date of delivery of and payment for the Lease/Purchase Agreement.
IN WITNESS WHEREOF, we have hereunto set our hands.
Name: _..:..~...:...u'!L4r ----==::::...._~LJ.-J.=...e.~:::..,;.....~J~r~ --- Title: (:1 ''3 a/lt!y,
#765412vl (BAPCC) 4
SCHEDULE OF PROPERTY No. 1
Re: Master Equipment Lease/Purchase Agreement, dated as of June 1, 2012, between Banc of America Public Capital Corp, as Lessor, and City of Salinas, as Lessee
1. Defined Terms. All terms used herein have the meanings ascribed to them in the above-referenced Master Equipment Lease/Purchase Agreement (the "Master Equipment Lease") .
2. Equipment. The following items of Equipment are hereby included under this Schedule of the Master Equipment Lease.
Quantity Description Location
210 Portable, XG-1 OOP, 136-870MHz, 1590 Moffett Street Immersible Radios Salinas , CA 93905
210 Featur e Package , P25 Trunk, P25 1590 Moffett Street Conv Salinas , CA 93905
210 Feature Package , P25 Encryption 1590 Moffett Street Salinas, CA 93905
210 Feature, Conv Vote Scan 1590 Moffett Street
Salinas, CA 93905
3. Payment Schedule.
(a) Rental Payments. The Rental Payments shall be in such amounts and payable on such dates as set forth in the Rental Payment Schedule attached to this Schedule as Exhibit A-1. Rental Payments shall commence on the date on which the Equipment listed in this Schedule is accepted by Lessee, as indicated in an Acceptance Certificate substantially in the form of Exhibit B to the Master Equipment Lease or the date on which sufficient moneys to purchase the Equipment are deposited for that purpose with an Acquisition Fund Custodian, whichever is earlier.
(b) Purchase Price Schedule . The Purchase Price on each Rental Payment date for the Term Estate in the Equipment listed in this Schedule shall be the amount set forth for such Rental Payment date in the "Purchase Price" column of the Rental Payment Schedule attached to this Schedule. The Purchase Price is in addition to all Rental Paym ents then due under this Schedule (including the Rental Payment shown on the same line in the Rental Payment Schedule).
4. Representations, Warranties and Covenants. Lessee hereby represents , warrants and covenants that its representations, warranties and covenants set forth in the Master Equipment Lease are true and correct as though made on the date of commencement of Rental Payments on this Schedule . Lessee further represents and warrants that no material adverse #765674vl (BAPCC/CA Abatement Lease Template) A- 1
change in Lessee's financial condition has occurred since the date of the Master Equipment Lease.
5. The Lease. The terms and provisions of the Master Equipment Lease (other than to the extent that they relate solely to other Schedules or Equipment listed on other Schedules) are hereby incorporated into this Schedule by reference and made a part hereof
6. Acquisition Amount. The Acquisition Amount for the Equipment described in this Schedule to be paid to the Vendor or reimbursed to the Lessee is $969,759.00.
7. Lease Term. The Lease Term shall consist of sixty (60) months, ending on August 15, 2017.
8. Purchase Option Commencement Date. For purposes of Section 10.01 of the Lease, the Purchase Option Commencement Date is August 15, 2012.
Dated: August 15, 2012
LESSOR:
Banc of America Public Capital Corp
555 California Street, 4th Floor
San Francisco, California 94104
Title - -------------
LESSEE:
City of Salinas
200 Lincoln A venue
Salinas, California 93901
By ___ -+-----=---"~ 9',.,------~
Title C 1
(Seal)
Attest:
Counterpart No. __ of _ _ manually executed and serially numbered counterparts.
To the extent that this Lease constitutes chattel paper (as defined in the Uniform Commercial Code), no security interest herein may be created through the transfer or possession of any Counterpart other than Counterpart No. 1.
#7656 74vl (BAPCC/CA Abatement Lease Template) A-2
EXHIBIT A-1
RENT ALP A YMENT SCHEDULE
Rental Rental Rental Interest
Payment Payment Payment Portion Principal
Number Date Amount 3.00% Portion Balance
0 8/15/2012 969,759.00
1 2/15/2013 105,155.02 14,546.39 90,608 .63 879,150.37
2 8/15/2013 105,155.02 13,187.26 91,967.76 787,182.60
3 2/15/2014 105,155.02 11,807.74 93,347.28 693,835.32
4 8/15/2014 105,155.02 10,407.53 94,747.49 599,087.83
5 2/15/2015 105,155.02 8,986.32 96,168.70 502,919 .13
6 8/15/2015 105,155.02 7,543.79 97,611.23 405,307.89
7 2/15/2016 105,155.02 6,079.62 99,075.40 306,232.49
8 8/15/2016 105,155.02 4,593.49 100,561.53 205,670.96
9 2/15/2017 105,155.02 3,085.06 102,069.96 103,601.00
10 8/15/2017 105,155.02 1,554.02 103,601.00 0.00
TOTAL 1,051,550.20 81,791.20 969,759.00
Prepayment Premium for purposes of Section 10.0l(a) is 2%.
For purposes of this Lease, "Taxable Rate, " with respect to the interest component of Rental Payments, means an annual rate of interest equal to 4.344 %.
LESSEE:
City of Salinas
~:,e~~~r
#765674vl (BAPCC/CA Abatement Lease Template) A-3
ACCEPTANCE CERTI FICATE
Banc of America Public Capital Corp
555 California Street, 4th Floor
San Francisco, California 94104
Re: Schedule of Property No. 1, dated August 15, 2012, to Master Equipment Lease/Purchase Agreement, dated as of June 1, 2012, between Banc of America Public Capital Corp, as Lessor, and City of Salinas, as Lessee.
Ladies and Gentlemen:
In accordance with the Master Equipment Lease/Purchase Agreement (the "Agreement" ), the undersigned Lessee hereby certifies and represents to, and agrees with Lessor as follows:
1. All of the Equipment (as such term is defined in the Agreement) listed in the above-referenced Schedule of Property (the "Schedule ") has been delivered, installed and accepted on the date hereof.
2. Lessee has conducted such inspection and/or testing of the Equipment listed in the Schedule as it deems necessary and appropriate and hereby acknowledges that it accepts the Equipment for all purposes.
3. Lessee is currently maintaining the insurance coverage required by Section 7.02 of the Agreement.
4. No event or condition that constitutes, or with notice or lapse of time, or both, would constitute, an Event of Default (as defined in the Agreement) exists at the date hereof.
Date: August 15, 2012
L ESSEE:
City of Salinas
By /
Title C~
(Seal)
CERTIF ICATE
The undersigned, the duly elected and acting _ _____ _ _ City Clerk or Deputy of City Clerk of City of Salinas ( "Lessee ") certifies as follows:
A. The following listed persons are duly elected and acting officials of Lessee (the "Officials ") in the capacity set forth opposite their respective names below and that the facsimile signatures are true and correct as of the date hereof;
B. The Officials are duly authorized, on behalf of Lessee, to negotiate, execute and deliver the Master Equipment Lease/Purchase Agreement dated as of June 1, 2012 and the Schedule(s) thereunder and all future Schedule(s) (the "Agreements ") by and between Lessee and Banc of America Public Capital Corp and these Agreements are binding and authorized Agreements of Lessee, enforceable in all respects in accordance with their terms.
Name of Official
~ & £ lrlJ'!IA k;JC
//l;~;f/ /J.17ffc'~
~
Dated August 15, 2012
Title Signamr
( dJ /:Zary /--'l ~-4+-1--M-- -'--~
E:i«/?C~ l(a,;fr
4 (The signer of this Certificate
Agreements.)
authorized to execute the
City of Salinas
Office ofthe City Attorney - 200 Lincoln Avenue, Salinas, California 93901 - (831) 758-7256 - Fax (831) 758-7257 Vanessa W. Vallarta, City Attorney
Christopher A. Callihan, Asst. City Attorney
August 14, 2012
OPINION OF COUNSEL TO LESSEE
Banc of America Public Capital Corp
555 California Street, 4th Floor
San Francisco , California 94104
Re: Schedule of Property No. 1, dated August 15, 2012, to Master Equipment Lease/Purchase Agreement, dated as of June 1, 2012, between Banc of America Public Capital Corp, as Lessor, and City of Salinas, as Lessee
Ladies and Gentlemen:
As City Attorney and legal counsel to City of Salinas ( "Lessee"), I have examined (a) an executed counterpart of a certain Master Equipment Lease/Purchase Agreement, dated as of June 1, 2012, and Exhibits thereto by and between Banc of America Public Capital Corp ("Lessor") and Lessee (the "Agreement "), and an executed counterpart of Schedule of Property No. 1, dated August 15, 2012, by and between Lessor and Lessee (the "Schedule "), which, among other things, provides for the lease of certain property listed in the Schedule (the "Equipment"), (b) an executed counterpart of the resolution of Lessee which , among other things, authorize Lessee to execute the Agreement and the Schedule and ( c) such other opinions, documents and matters of law as I have deemed necessary in connection with the following opinions. The Schedule and the terms and provisions of the Agreement incorporated therein by reference together with the Rental Payment Schedule attached to the Schedule are herein referred to collectively as the "Lease". Based on the foregoing, I am of the following opinion s:
1. Lessee is a charter city and municipal corporation, duly organized and existing under the laws of the State, and is a political subdivision of a state within the meaning of Section 103( c) of the Internal Revenue Code of 1986, as amended (the "Code ") and the obligations of Lessee under the Agreement will constitute an obligation of Lessee within the meaning of Section 103( a) of the Code, notwithstanding Section 103(b) of the Code;
2. Lessee has the requisite power and authority to lease and acquire the Equipment and to execute and deliver the Lease and to perform its obligations under the Lease;
3. The Lease has been duly authorized , approved, executed and delivered by and on behalf of Lessee and the Lease is a valid and binding obligation of Lessee enforceable in accordance with its terms;
Banc of America Public Capital Corp
OPINION OF COUNSEL TO LESSEE
August 14, 2012
4. The authorization, approval, execution and delivery of the Lease and all other proceedings of Lessee relating to the transactions contemplated thereby have been performed in accordance with all open meeting laws, public bidding laws and all other applicable state or federal laws; and
5. There is no proceeding pending or threatened in any court or before any governmental authority or arbitration board or tribunal that, if adversely determined, would adversely affect the transactions contemplated by the Lease or the interest of Lessor or its assigns, as the case may be, in the Equipment thereunder.
All capitalized terms herein shall have the same meanings as in the Lease unless otherwise provided herein. Lessor and its successors and assigns, and any counsel rendering an opinion on the tax-exempt status of the interest components of the Rental Payments, are entitled to rely on this opinion .
Sincerely,
U.il~
VANESSA W. VALLARTA
City Attorney
\\salsvr38\DeptPvt\Legal\chrissc\Documents\LETTERS\DEPT LETTERHEADS\L-Opinion of Counsel to Lessee.Banc of America Public Capitol Corp.Master Equip. Lease-Purchase Agmt.08.13.12.doc
ESSENTIAL USE/SOURCE OF FUNDS CERTIFICATE
Banc of America Public Capital Corp
555 California Street, 4th Floor
San Francisco, California 94104
Re: Master Equipment Lease/Purchase Agreement dated June 1, 2012, between Banc of America Public Capital Corp ("Lessor") and City of Salinas ("Lessee ") and Schedule of Property No. 1 dated August 15, 2012 This certificate confirms and affirms that the Equipment described in the Agreement referenced above is essential to the functions of Lessee or to the services Lessee provides its citizens. Further, Lessee has an immediate need for, and expects to make immediate use of, substantially all such Equipment, which need is not temporary or expected to diminish in the foreseeable future. Such Equipment will be used by Lessee only for the purpose of performing one or more of Lessee's governmental or proprietary functions consistent with the permissible scope of its authority.
Lessee expects and anticipates adequate funds to be available for all future payments or rent due after the current budgetary period.
#765674vl (BAPCC/CA Abatement Lease Template) E-1
BILLING INFORMATION FORM
You will help us provide a more efficient service to you by completing the information requested below:
1. Billing Address (the location where you want Lessor to send your invoice for rent installments):
Name: CITY OF SALINAS
Attn: -""g ..c...,.c'~ /;.L..!...«--'---'-~....:.......!..a'"'--'l".---'-/~a.c....Lvz..l.<C.o _______ ____ _ Address (a): ,;200 L /l@/;v;
Address (b ):
City:
State: C l! 7
Zip Code (9 digits) : - -'-c;-=, ~c......_9t_ t?""""· .-=G'------- --- - --- Phone: (&-:~/) 75,g>-?t/~3 Fax: (g3r ) 7~8- 7~?0
(a) Use for street ~dd.ress, Post Office Box, division, attention of, e?c. (b) Use only if (a) is not sufficient.
2. Accounts Payable Supervisor:
Name: /0:; w~ / 67-ulc?r('('° 2
Telephone : ( ~5/ ) 7~r/- 7?/7
3. Sales Tax:
__ Exempt X Non-exempt (if exempt, provide exemption certificate)
4. Property Tax:
_X_ Exempt __ Non-exempt
5. Lessee's Rental Payment Method:
By Check X.
By Wire Transfer _ __ (if you elect this, we will provide you with wire transfer instruction)
By Automatic Debit (ACH) _ __ (if you elect this, please complete the attached form) -1-
Form8038•G Information Return for Tax-Exempt Governmental Obligations (Rev. September 2011) II>- Under Internal Revenue Code section 149(e) 0MB No. 1545-0720 ~ See separate instructions.
Department of the Treasury
Internal Revenue Service Caution : If the issue price is under $100,000, use Form 8038-GC. . . Reporting Authority If Amended Return, check here ..,.. D 1 Issuer's name 2 Issuer's employer identification number (EIN) City of Salinas 94·6000412
3a Name of person (other than issuer) with whom the IRS may communicate about this return (see instruct ions) 3b Telephone number of other person shown on 3a Matt N. Pressey 831•758-7420
4 Number and street (or P.O. box if mail is not delivered to street address) I Room/suite 5 Report number (For IRS Use Only) 200 Lincoln Avenue 131~
6 City, town, or post office, state, and ZIP code 7 Date of issue Salinas, CA 93901 8/13/2012
8 Name of issue 9 CUSIP number
2012 Salinas Equipment Lease/Purchase
10a Name and title of officer or other employee of the issuer whom the IRS may call for more information (see 10b Telephone number of officer or other instructions) employee shown on 10a
Matt N. Pressey, Finance Director
• "'s:l•••• Type of Issue {enter the issue price). See the instructions and attach schedule . 11 Education. 11
12 Health and hospital 12
13 Transportation 13
14 Public safety . 14 969,759
15 Environment (including sewage bonds) 15
16 Housing 16
17 Utilities 17
18 Other. Describe ..,.. 18
19 If obligations are TANs or RANs, check only box 19a .... D If obligations are BANs, check only box 19b .... D
20 If obligations are in the form of a lease or installment sale, check box .... D 1::r.1 •• II Description of Obligations. Complete for the entire issue for which this form is being filed . (a) Final maturity date (b) Issue price (c) Stated redempt ion (d) Weighted (e) Yield price at maturity average maturity 21 8/15/2017 $ 969,759 $ 5 vears 3 %
·~1•• 1•.1 Uses of Proceeds of Bond Issue (including underwriter s' discount) 22 Proceeds used for accrued interest 22
23 Issue price of entire issue (enter amount from line 21, column (bl) 23 969,759 24 Proceeds used for bond issuance costs (including underwriters' discount) . 24 25 Proceeds used for credit enhancement 25
26 Proceeds allocated to reasonably required reserve or replacement fund 26 27 Proceeds used to currently refund prior issues 27
28 Proceeds used to advance refund prior issues 28
29 Total (add lines 24 through 28) . 29
30 Nonrefunding proceeds of the issue (subtract line 29 from line 23 and enter amount here) 30 • :r._, ...... ,. Description of Refunded Bonds. Comolete this oart only for refundinQ bonds . 31 Enter the remaining weighted average maturity of the bonds to be currently refunded . ..,.. 5 years 32 Enter the remaining weighted average maturity of the bonds to be advance refunded . ..,.. years 33 Enter the last date on which the refunded bonds will be called (MM/DD/YYYY) ..,.. 34 Enter the date(s) the refunded bonds were issued ..,.. (MM/DDNYYY) For Paperwork Reduction Act Notice, see separate instructions. cat. No. 63773S Form 8038-G (Rev. 9-2011) Form 8038-G (Rev. 9-2011) Page2
I ::r.r,; •" I Miscellaneous
35 Enter the amount of the state volume cap allocated to the issue under section 141 (b)(5) 35 36a Enter the amount of gross proceeds invested or to be invested in a guaranteed investment contract (GIC) (see instructions) 36a
b Enter the final maturity date of the GIC.,..
C Enter the name of the GIC provider.,..
37 Pooled financings : Enter the amount of the proceeds of this issue that are to be used to make loans to other governmental units . 37
38a If this issue is a loan made from the proceeds of another tax-exempt issue, check box.,.. D and enter the following information:
b Enter the date of the master pool obligation.,.. - - - ----- --------- - -- c Enter the EIN of the issuer of the master pool obligation.,._ - - - --- --- - --- - -- d Enter the name of the issuer of the master pool obligation.,._ - ------- ----- - - 39 If the issuer has designated the issue under section 265{b){3)(B)(i)(III) (small issuer exception), check box 40 If the issuer has elected to pay a penalty in lieu of arbitrage rebate, check box . . . . 41a If the issuer has identified a hedge , check here.,.. D and enter the following information :
b Name of hedge provider.,._
c Type of hedge.,.. - ----- - - ----- --- - -
d Term of hedge.,..-- - --- -------- - - - --
....
D
D
D 42 If the issuer has superint egrated the hedge, check box . . . . . . . 43 If the issuer has established written procedu res to ensure that all nonqualified bonds of this issue are remediated according to the requirements under the Code and Regulations (see instructions), check box . .,.. D 44 If the issuer has established written procedures to monitor the requirements of section 148, check box . . . 45a If some portion of the proceeds was used to reimburse expenditures, check here .,._ D and enter the amount of reimbursement . . . .,..
b Enter the date the official intent was adopted .,..
Signature
and
Consent
Paid
Preparer
Use Only
Preparer's signature
Firm's name .,.
Firm's address .,.
Date Check D if PTIN
self-emp loyed
Firm's EIN ...
Phone no.
.,.. D
Form 8038-G (Rev. 9-2011)
RESOLUTION NO. 20194 (N.C.S.)
A RESOLUTION OF THE SALINAS CITY COUNCIL APPROVING THE
FORM OF AND AUTHORIZING THE EXECUTION OF A MASTER
EQUIPMENTLEASE~URCHASEAGREEMENTWITHBANCOF
AMERICA PUBLIC CAPITAL CORPORATION, AND AUTHORIZING
PURSUANT THERETO THE ACQUISITION OF PUBLIC SAFETY
RADIOS AND RELATED EQUIPMENT AND APPROVING CERTAIN
ACTIONS IN CONNECTION THEREWITH
WHEREAS, the City of Salinas (the "City") is a chartered city (a public body, corporate and politic) duly created, established and authorized to transact business and exercise its powers, all under and pursuant to the City Charter and the Constitution and laws of the State of California; and
\YHEREAS, the City of Salinas has worked in partnersl-.ii.p witi1i the County of Monterey, and other local governmental agencies in Monterey County to establish a state of the art public safety, and first responder radio communications network; and WHEREAS, a funding agreement with the participating entities was approved by City Council on March 24, 2009 and signed by the Mayor; and
WHEREAS, during a competitive bid process the negotiations team has worked with the selected vendor, Harris Corporation, to deliver substantial discounts including a discount for a minimum aggregate purchase of subscriber radios; and
WHEREAS, a funding addendum was approved by City Council on November 9, 2010 that committed to the purchase of subscirber radios by June 30, 2012; and WHEREAS, in order to acquire and finance the equipment, the City Council desires to enter into a Master Equipment Lease/Purchase Agreement (the "Master Lease") with Banc of America Public Capital Corporation (the "Lessor"), pursuant to which the City will be enabled to enter into individual leases of equipment ("Leases") which will allow the City to acquire , lease, and ultimately obtain full legal title to the equipment in exchange for the City's rental payments to the Lessor (the "Rental Payment"); and
WHEREAS, there has been prepared and submitted to this meeting a draft form of the Master Lease, which draft form sets forth the terms and conditions of the Leases; and WHEREAS, the City is authorized to undertake all of the above pursuant to applicable laws of the State of California; and
WHEREAS, the City now desires to authorize the execution of such Master Lease, and any and all ancillary documents relating thereto and to the performance of such acts as may be necessary or desirable to effect the execution of the Master Lease and any Leases, and the acquisition of the Equipment;
NOW THEREFORE BE IT RESOLVED BY THE CITY COUNCIL OF SALINAS, as follows:
Section 1. The City hereby determines the above findings are true and correct.
Section 2. The form of Master Lease, a copy of which is on file with the City Clerk, is hereby approved, together with its exhibits. The City Manager or his written designee are each hereby authorized and directed to execute and deliver the Master Lease in the form presented at this meeting with such changes insertions and omissions as may be approved by the City Manager and City Attorney , said execution being conclusive evidence of such approva l.
Section 3. The City Manager (or his written designee) and Finance Director are hereby authorized and directed to acquire the equipment and to finance such acquisit ion pursuant to the Master Lease and to the Leases to be executed thereunder. The City Manager and Finance Director are authorized to execute such Leases from time to time as necessary , and take any and all steps necessary to obtain full legal title to the equipment as soon as practicable and in accordance with the terms of the Master Lease . The maximum cost of the equipment so financed by and leased pursuant to the Master Lease shall not exceed Three Million Dollars ($3,000,000) , the maximum applicable interest rate attributable to the interest component of lease payment shall not exceed 3% and the maximum term of any lease shall not exceed 7 years from the date of acquisition.
Section 4. The City Manager and the Finance Director of the City, acting singly, are hereby authorized and directed to execute and deliver any and all documents and instruments relating to the Master Lease and the acquisition of the Equipment, and to do and cause to be done any and all acts and things necessary or proper for carrying out the transactions conte mplated by the Master Lease and this Resolution and any related agreements, including but not limited to executio n of agreements and certificates , obtaining opinions and reports, and purchase of insurance relating to the Equipment.
Section 5. This Resolution shall take effect immediately upon its adoption.
PASSED AND ADOPTED this 15th day of May 2012 , by the following vote:
A YES:Councilmembers: Barrera , Craig , De La Rosa , Lutes , McShane, Sanchez and Mayor Donohue NOES:None
ABSENT: None
ABSTAINED:None
AITEST:
. -.,-~ .... ....,. ~ .... -.,... '
This is to certify that the foregoing is a
f ult, true, and correct co~ of
Resolution No. 2D I Y: (N.C.S.) as
- ~
regu
51r ;rred by the Salinas City Council
on • as appears of record in my
office. .-.. .- ~ .· ·
Dated ~ City ·C;erk ----w...._~
·- --~----- --~ -~ ·
Matt Pressey
From: Matt Pressey
Sent:
To:
Wednesday, September 28, 2011 11 :45 AM
Matt Pressey
Subject: Rabobank Wire Instructions
Here are the City of Salinas wire instructions:
Bank:
Rabobank, N.A.
301 Ma in Street
Salinas, CA 93901
Account Name: City of Salinas - General Checking
Routing Number: 122238420
Account Number : 066001132
Matt N. Pressey , CPA
Finance Director
City of Salinas
831-758-7420
[email protected] .ca.us
1 * City of Salinas r:,
u
F1nMce DepaMtment • 200 Uncoln Avenue • Salinas, Callfomla 93901 • (831) 758-7212 August 14, 2012
Ms. Eileen Harwell
Banc of America Public Capital Corp
555 California Street, 4th Floor
San Francisco, California 94104
Subject: Master Equipment Lease/Purchase Agreement- Schedule of Property No. 1 Invoice Dear Ms. Harwell:
Please accept this letter as confirmation that the City of Salinas is not able to send Banc of America Public Capital Corp the original invoice, documenting the equipment property listed in Schedule of Property No. 1 dated June 1, 2012, reflecting the $969,759 of specific equipment purchased and financed under the Master Equipment Lease/Purchase Agreement. The original invoice must stay in the City's position as support of this purchase.
However, a copy of the original invoice is attached.
Thank you for bring this issue to my attention.
Sincerely,
~~,~~r
Matt N. Pressey, fu
Finance Director
City of Salinas
Attached: Copy of original invoice
\\salsvr38\DeptPvt\Finance\mattp\Documents\Templates\Letter-.docx.8/14/2012/12:16 PM.
Harris Corporation
221 Jefferson Ridge Parkway
Lynchburg, VA 24501
Federal ID#:34-0276860
Customer Pwchaiie Order
Monterey CA I
Ow Contrad NO l Cu,<omc, NO
0000000591 34316 r
aymenlT Offlls
Net 30
Bil To Adaress
Monterey County Telecommunications
1322 Natividad Road
Salinas CA 93906
United States
Notes:
Reference PO 120530-057
Item No. Description
Invoice S0#375820 (Shipment 1)
Please see attached document with itemized list
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•. -·t..1··. i . ,, ·1 \ '
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This is a liS1 of gooo, and/or ~es rendered as of this date which were furnished e~ssty eonctittonill upon you .Js~n1 to the cOf'ltmd 10l'm$ and conditions and your receipt and acceptance of the gooos shipped °' seMCeS hereunder eonstllutH yovr as.sent to such tenns. Cl.alms for goods in van.sit shOukt be flied immedi2101y wan the delivering carrier by the Pun::h.:scr, You must Obt.Jin our authortzat.on before retuming any merehandise.
Remit Payment To: (include Invoice No., Customer No. & Our Contract No.) Mail To:
Harris Corporation
Dept 1013
PO Box 121013
Dallas TX 75312·1013
United States
Electronic Funds Transfer To:
Harris Corporation
Mellon Bank
Account# : 001-7128
Routing #: 043000261
SWIFT Code: MELNUS3P
GO GREEN I Make payments online at PAYMENTS.HARRIS.COM
Ha.rris Billing Oepl Contact
Biller.
Biller Phone Number:
A c.:wp. or 1 1~ per month of the inwice
totill wi)I be leviieO O no( paid within lne
payment term, ~ ed.
Shll> To Adclres.s (tfO:herthan Bill To)
1590 Moffett Street
Salinas. CA 93905
USA
Tucker Hoskins
434-455-9266
lnVOICe Number
S000000128
Quantity Unit Price
1.00 2,587 ,940.90
Total Amount
l
in-.oate
6/29/2012
Extended Amount
2,587 ,940.90
2,587,940.90 USO
POI I SOI I Part Number I 0esct1etlon I Quanti~ I Unit Price I EJttended Amount I { 4,t/6~7~(1 120530-057 375820 XP·lOOF Portable, XG-100P,136-870MHz,lmmerslble 210 2,507.40 526,554.00 120530·057 375820 XPPL48 Feature Package,P25 Trun k, P25 Conv 210 1,456 .00 305,760.00 120530-057 375820 XPPL4C Feature Package,P25 Encryption 210 486.50 102,165.00 120530-057 375820 XPPL4E Feature Conv Vote Scan 210 168.00 35,280.00 120530-057 375820 XPPL5K Feature,P25 OTAP Profile 210 185.50 38,955.00 120530-057 375820 XPPA3A Battery,LI-Polymer 210 98.00 20,580.00 120530-057 375820 XPNCSC 6" Antenna,Unlty,160-870 MHz,Heilcal 210 70.00 14,700.00 120530-057 375820 XPAE9N Speaker Mlcrophone,15 210 112.00 23,520.00 120530-057 375820 XPHC30 Case,Leather ,Full,31n Loop 222 42.00 9,324 .00 120530-0 57 375820 XPHC3L Belt Clip,Me tal 50 17.50 875.00 120530-057 375820 XPAE6G Mlcrophone,Palm,2 Wlre,Black 25 150.50 3,762.50 120530-057 375820 XPAE3Z Earphone.Lapel Microphone 222 45.50 10,101.00 120530-057 375820 XPNC8C 6" Antenna,Unity,160-870 MHz,Helical 20 70.00 1,400.00 120530-057 375820 XPPA3A Battery,LI-Polymer 30 98.00 2,940 .00 120530-057 375820 XPCH4A Charger,1-Bay,Unity Portable 230 98.00 22,540.00 120530-057 375820 XPCH48 Charger, 6-Bay 16 525.00 8,400.00 120530-057 375820 XPCH4J Charger, VC4000,Unity 6 122.50 735.00 120530-0 57 375820 XPPA2H BATTERY,AA CLAMSHELL 105 35.00 3,675.00 120530-057 375820 XPHC3A Case,Leather ,Full, T ·Strap 5 42.00 210.00 120530 ·057 375820 XPHC3L Belt Clip,Metal 12 17.50 210.00 12053 0-057 375820 XPAE9N Speaker Mlcrophone,15 5 112.00 560.00 120530-057 375820 XPNC8C 6" Antenna,Unity,160 -870 MHz,Heilcal 5 70.00 350.00 120530-057 375820 XPPA3A Battery,li-Polymer 80 98.00 7,840 .00 120530-057 375820 XPCH4A Charger,1-Bay,Unlty Portable 5 98.00 490.00 120530-057 375820 XPCH4B Charger, 6-Bay 9 525.00 4,725.00 120530 ·057 375820 XPCH4J Charger,VC4000,Unlty 25 122.50 3,062.50 120530-057 375820 XPCJ3A Cable,USB,Programming 3 119.00 357.00 120530·057 375820 XP-lOOF Portabie,XG-100P,136-870MHz,lmmersib le 75 2,507.40 188,055.00 120530-057 375820 XPPL48 Feature Package,P25 Trunk, P25 Conv 75 1,456.00 109,200.00 120530-057 375820 XPPL4E Feature,Conv Vote Scan 75 168.00 12,600.00 120530-057 375820 XPPL5K Feature,P25 OTAP Profile 75 185.50 13,912.50 120530·057 375820 XPNCBC 6" Antenna,Unity,160-870 MHz.Helical 75 70.00 5,250.00 120530·057 375820 XPAE9N Speaker Mlcropho ne,IS 75 112.00 8,400.00 120530-057 375820 XPHC3A Case,Leather, Fu! I, T -Strap 75 42.00 3,150.00 120530-057 375820 XP-lOOF Portable,XG-100P,136-870MHz,lmmersible 30 2,507.40 75,222.00 120530-057 375820 XPPL4B Feature Package,P25 Trunk, P25 Conv 30 1,456.00 43,6 80.00 120530-057 375820 XPPL4C Feature Package, P25 Encryption 30 486.50 14,595 .00 120530-057 375820 XPPL4E Feature ,Conv Vote Scan 30 168.00 5,040 .00 120530-057 375820 XPPL5K Feature,P25 OTAP Profil e 30 185.50 5,565.00 120530-057 375820 XPNC8C 6' Antenna ,Unlty,160 -870 MHz.Helical 30 70.00 2,100 .00 120530-057 375820 XPAE9N Spea ker Microphone, IS 30 112 .00 3,360.00 120530-057 375820 XPHC3A Case,Leather,Full, T -Stra p 30 42.00 1,260.00 120530-057 375820 XM-100F Mobile,XG· 100M, 136-870MHz, Unencrypted 4 2,367.40 9,469.60 120530-057 375820 XMPL48 Feature Packa8e,P25 Trunk, P2S Conv 4 1,456.00 5,824.00 120530-057 375820 XMPL5K Feature,P2S OTAP Profile 4 185.50 742.00 120530-05 7 375820 XMPL4E Feature,Conv Vote Scan 4 168.00 672.00 120530-057 375820 XMPL4C Feature Packag e,P25 Encryption 4 486.50 1,946.00 120530-057 375820 XMZN8K Desktop Station ,C5-7000,Local Control 4 1,396.50 5,586.00 120530-057 375820 XMCP9H Control Unlt,CH721,System,Front Mount 4 553.00 2,212.00 120530-057 375820 XMMA6P Bracket Kit.Rack Mount,CS7000 4 112.00 448.00 120530·057 375820 XMMC7Y Microphone,Desktop 4 91.00 364.00 120530-057 375820 XMANGJ Antenna,Flex,Muiti-Band,136-870MHz OdB 4 157.50 630.00 120530-057 37582 0 XM-lOOF Mobile,XG-100M, 136-870M Hz,Unencrypted 81 2,367.40 191,759 .40 120530·057 375820 XMPL4B Feature Package,P25 Trunk, P25 Conv 81 1,456.00 117,936 .00 120530-057 375820 XMPL5K Featu re, P25 OTAP Profile 81 185.50 15,025 .50 120530-057 375820 XMPL4E Feature,Conv Vote Scan 81 168.00 13,608 .00 120530-057 375820 XMPL4C Feature Package ,P25 Encryption 81 486.50 39,406.50 120530·057 3758 20 XMCP9R Control Unit,CHlOO,Touch Screen,Remote 81 1,048 .60 84,936.60 120530-057 375820 XMZN9A Accessories,Unlty,CH100,Remote Mount 81 252.00 20,412.00 120530 -057 375820 XMMC72 MICROPHONE,STANDARD,CH721 CONTROL UNIT 81 56.00 4,536.00 120530-057 375820 XMCP9R Control Unlt,CHlOO,Touch Screen,Remote 6 1,048 .60 6,291.60 120530 -057 375820 XMZN9A Accessories,Unity,CHlOO,Remote Mount 6 252.00 1,512.00 120530-057 375820 XMCP9R Contr ol Unlt,CH100,Touch Screen,Remote 15 1,048 .60 15,729.00 120530-057 375820 XMZN9A Accessorles ,Unlty,CH100,Remote Mount 15 252.00 3,780.00 120530-057 375820 XM-lOOF Mobile,XG·lOOM,136-870MHz,Unencrypted 8 2,367.40 18,939.20 120530-057 375820 XMPL4B Feature Package,P25 Trunk, P25 Conv 8 1,456.00 11,648.00 120530-057 375820 XMPL5K Feature ,P25 OTAP Profile 8 185.50 1,484.00 120530-057 375820 XMPL4E Feature,Conv Vote Scan 8 168 .00 1,344.00 120530-057 375820 XMPL4C Feature Package,P25 Encryption B 486.50 3,892.00 120530-057 375820 XMCP9F Control Unit,CH721,System,Remote Mount 8 577.50 4,620.00 120530-057 375820 XMZN7R Accessories,Unlty,Remote Mount 8 252.00 2,016.00 120530-057 375820 XMMC72 MICROPHONE,STANDARD,CH721 CONTROL UNIT 8 56.00 448.00 120530-057 375820 XMAN6J Antenna ,Flex,Multl-Band ,136-870MHz OdB 8 157.50 1,260 .00 120530 -057 375820 XM-100F Mobile,XG-100M,136-870MHz ,Unencrypted 15 2,367.40 35,511.00 120530-057 375820 XMPL4B Feature Package,P25 Trunk, P25 Conv 15 1,456.00 21,840.00 120530-057 375820 XMPL5K Feature ,P25 OTAP Profile 15 185.50 2,782.50 120530-057 375820 XMPL4E Feature,Corw Vote Scan 15 168.00 2,520. 00 120530-057 375820 XMCP9R Control Unit,CH100,Touch 5creen,Remote 15 1,048.60 15,729 .00 120530-057 375820 XMZN9A Accessorles,Unlty,CHlOO,Remote Mount 15 252.00 3,780.00 120530-057 375820 XMMC9C Mlcrophone ,DTMF,CH· 721 Control Unit 15 143.50 2,152 .50 120530-057 375820 XM-lOOF Moblle,XG-lOOM,136-870MHz, Unencrypted 32 2,367.40 75,756.80 120530-057 375820 XMPL4B Feature Package,P25 Trunk, P25 Conv 32 1,456.00 46,592.00 120530-057 375820 XMPLSK Feature,P25 OTAP Profile 32 185.50 5,936.00 120530-057 375820 XMPl4E Feature,Conv Vote Scan 32 168.00 5,376.00 120530-057 375820 XMPL4C Feature Package,P25 Encryption 32 486.50 15,568.00 120530-057 375820 XMCP9R Control Unit,CHlOO,Touch Screen,Remote 32 1,048.60 33,555.20 120530-057 375820 XMZN9A Accessories,Unlty,CH100,Remote Mount 32 252.00 8,064.00 120530-057 375820 XMMC9C Microphone,DTMF,CH-721 Control Unit 32 143.50 4,592.00 120530-057 375820 XM·lOOF Mobile,XG-100M,136-870MHz,Unencrypted 10 2,367.40 23,674.00 120530-057 375820 XMPL4B Featu re Package,P25 Trunk, P25 Conv 10 1,456.00 14,560.00 120530-057 375820 XMPL5K Feature ,P25 OTAP Profile 10 185 .50 1,855.00 120530-057 3758 20 XMPL4E Feature ,Conv Vote Scan 10 168 .00 1,68 0.00 120530-057 375820 XMPL4C Feature Package,P25 Encryption 10 486.50 4,865 .00 120530-057 375820 XMCP9H Control Unit,CH721,System,Front Mount 10 553.00 5,530 .00 120530-057 375820 CA-009562-030 Cable Assembly,CAN,30 ft Straight-Right 13 80.50 1,046.50 120530-057 375820 FM-017262 -001 D-Sw1vel,P5300/PS400/P7300 6 7.00 42.00 120530·057 375820 19A703965P2 Fllter,RF Interference 8 168.00 1,344 .00 120530-057 375820 198802554P24 Cable,Mcycle Ace 8 119.00 952.00 120530-057 375820 CA-012349-002 Cable,Motorcyc le Accessory,M7300 8 73.50 588.00 120530-057 375820 l88D6556G1 Klt,Microphone Hanger 8 42.00 336.00 120530 -057 375820 CM-022218·AE5102 Software,VIP App w/AES Encry 2 7,704.00 15,408.00 120530-057 375820 CA-009562-030 Cable Assembly,CAN,30 ft Straight-Right 4 80.50 322.00 120530-057 375820 CA-012349-001 Cable,Options,M7300/5300 11 133.00 1,463.00 120530-057 375820 XMMC7Y Mlcrophone,Desktop 3 91.00 273.00 120530-057 375820 XMZNBK Desktop Station,CS-7000,Local Control 3 1,396 .50 4,189.50 120530-057 375820 XMMA6P Bracket Kit,Rack Mount,CS7000 10 112.00 1,120.00 TOTAL 2,587,940.9 0
Harris Corporation PSPC
221 Jefferson Ridge Parkway
Lynchburg, VA 24501
Federa l ID#:34-0276860
Monterey CA I
Our Con*JaQ N<J I Cu.stom.r No
000000059 1 34396
CustOffle,;' Purcnase Order
Bill To Address
Monterey County Telecommunications
1322 Natividad Road
Salinas. CA 93906
Notes:
ttemNo. Description
Trade in Allowance Credit (SO# 375820)
r
oymen\ 1 erms
Net30
Remit Payment To: 0nclude Invoice No., Customer No. & Our Contract No.) Mail To:
Harris Corporation PSPC
8058
PO Box7247
Philadelphia PA 19170-8058
United States
Electronic Funds Transfer To:
Harris Corporation PSPC
CitiBank - PSPC
Account# : 30886623
SWIFT Code: CITIUS33
GO GREEN! Make payments on line at PAYMENTS.HARRIS.COM
Harris Billing Dept. Contact
Biller:
Bille r Phone Numbe r:
A charge of 1 112% per month of the invoice
total win be k:vied if not paid withtn the
payment terms indic..lted.
Ship To Address (11 other than BieTo)
1590 Moffett Street
Salinas, CA 93905
USA
Tucker Hoskins
43+455-9266
Invoice NIJfflbef
S000000158
Quantity UnN: Price
1.00 -186.000.00
I
1nvo1ce O.rte
7/26/2012
Extended Amount
-186.000 .00
PLEASE REVIEW THE REMIT TO ADDRESS LISTED ON THIS INVOICE
PLEASE ENSURE YOUR RECORDS AGREE TO AVOID PAYMENT DELAY Taxes (SO# 375820)
This is a llSt of goods atld/ot s@r'Vices rendered ai of lhi.5 date which were furnished express~ conditional upon y01J assen! to the contract terms and condltlons a.tld your receipt and acceptance of the goods shipped or services be re under constitutes your assent to such term,. Claims for goods lntran.sil: .should be filed immediatetywith the delivering carrier by the Purchaser. You must obtain our authorization before returning any merchandise. 186,150.52
Total Amount 150.52 USD