NOTE: CAPITALIZED TERMS IN THIS DOCUMENT ARE DEFINED AS IN THE AGREEMENT, UNLESS SPECIFICALLY STATED OTHERWISE.
11557 REV 10/21- MODIFIED – CITY OF SAN PABLO - 4.6.23
STATE AND LOCAL GOVERNMENT
& TERMS AND CONDITIONS ADDENDUM
AGREEMENT # 2956333
Addendum to Agreement # 2956333 and any future s upplements/schedules thereto, between CITY OF SAN PABL O, as Customer and U.S. B ank Equipment Finance, a division of U.S.
Bank National Association (“U.S. Bank Equipment Finance”), as Lessor. The words “you” and “your” refer to Customer. The words “we” and “us” refer to Lessor.
1. The parties wish to amend the above-referenced Agreement by adding the following language:
REPRESENTATIONS AND WARRANTIES OF CUSTOMER: You hereby represent and warrant to us that: (i) you have been duly authorized under the Constitution and laws of the applicable jurisdiction and by a resolution or other authority of your governing body to execute and deliver this Agreement and to ca rry out your obligati ons hereunder; (ii) all legal requirements have been me t, and procedures have been followed, including public bidding, in order to ens ure the enforceability of this Agreem ent; (iii) this Agreement is in compliance with all laws applicable to you, in cluding any debt limitations or limitations on interest rates or finance charges; (iv) the Equipment will be used by you only for essential governmental or proprietary functions of you consistent with the scope of your authority, will not be used in a trade or business of any person or entity, by the federal government or for any personal, family or household use, and your need for the Equipment is not expected to diminish during the term of this Agreement; (v) you have funds available to pay Payments until the end of your current appropriation period, and you intend to request funds to make Payments in each appropriation period, from now until the end of the term of this Agreement; and (vi) your exact legal name is as set forth on page one of this Agreement.
INITIAL TERM AND RENEWAL TERM(S): The term of the Agreement consists of an initial term beginning on the date we pay Supplier and ending at the end of your fiscal year in which we pay Supplier, and a series of renewal terms, each co-extensive with your fiscal year. Except to the extent required by applic able law, if you do not ex ercise your right to terminate the Agreement under the Non-Appropriation or Renewal paragraph as of the end of any fiscal year, the Agreement will be deemed automatically renewed for the next succeeding renewal term.
An election by you to terminate the Agre ement under the Non-Appropriation or Renewal paragraph is not a default.
Notwithstanding anything to the contrary set forth in the Agreement, if we cancel the Agreement following a default by you, we may require that you pay the unpaid balance of Payments under the Agreement through the end of your then-current fiscal year, but we may not require you to pay future Payments due beyond that fiscal year or the anticipated residual value of the Equipment. If we sell the Equipment following a default by you, you will not be responsible for a deficiency, except to the extent of our costs of repossession, moving, storage, repair and sale, and our attorneys’ fees and costs.
NON-APPROPRIATION OR RENEWAL: If either sufficient funds are not appropriated to make Payments or any other amounts due under this Agreement or (to the extent required by applicable law) this Agreement is not r enewed either automatically or by mutual ratification, this Agreement shall terminate and you shall not be obligated to make Payments under this Agreement beyond the then-current fiscal year for which funds have been appropriated. Upon such an event, you shall, no later than the end of the fiscal year for which Payments have been appropriated or the term of this Agreement has been renewed, deliver possession of the Equipment to us. If you fail to deliver possession of the Equipment to us, the termination shall nevertheless be effective but you shall be responsible, to the extent permitted by law and legally available funds, for the payment of damages in an amount equal to the portion of Payments thereafter coming due that is attributable to the number of days after the termination during which you fail to deliver possession and for any other loss suffered by us as a result of your failure to deliver possession as required. You shall notify us in writing within seven days after (i) your failure to appropriate funds sufficient for the payment of the Payments or (ii) to the extent required by applicable law, (a) this Agreement is not renewed or (b) this Agreement is renewed by you (in which event this Agreement shall be mutually ratified and renewed), provided that your failure to give any such notice under clause (i) or (ii) of this sentence shall not operate to extend this Agreement or result in any liability to you.
SUPPLEMENTS; SEPARATE FINANCINGS: To the extent applicable, in the event that the parties hereafter mutually agree to ex ecute and deliver any supplement or schedule (“Supplement”) under the above-referenced Agreement, such Supplement, as it incorporates the terms and conditions of t he Agreement, shall be a separate financing distinct from the Agreement or other Supplements thereto. Without limiting the foregoing, upon the occurrence of an event of default or a non-appropriation event with respect to the Agreement or a Supplement ( each, a separate “Contract”), as applicable, we shall have the rights and remedies specified in the Agreement with respect to the Equipment financed and the Payments payable under such Contract, and we shall have no rights or remedies with respect to Equipment financed or Payments payable under any other Contract unless an event of default or non-appropriation ev ent has also occurred under such other Contract.
2. The parties wish to amend the above-referenced Agreement by restating certain language as follows:
Any provision in the Agreement stating that you shall indemnify and hold us harmless is hereby amended and restated as follows: “You shall not be required to indemnify or hold us harmless against liabilities arising from this Agreement. However, as between you and us, and to the extent permitted by law and lega lly available funds, you are responsible for and shall bear the risk of loss for, shall pa y directly, and shall defend against any and all claims, liabilities, proceedings, actions, ex penses, damages or losses arising under or related to the Equipment, including, but not limited to, the possession, ownership, lease, use or operation thereof, except that you shall not bear the risk of loss of, nor pay for, any claims, liabilities, proceedings, actions, expens es, damages or losses that arise directly from events occurring after you have surrendered possession of the Equipment in accordance with the terms of this Agreement to us or that arise directly from our gross negligence or willful misconduct.”
Any provision in the Agreement stating that the Agreement is governed by a particular state’s laws and you consent to such jurisdiction and venue is hereby amended and restated as follows: “This Agreement will be governed by and construed in accordance with the laws of the state of California. You consent to jurisdiction and venue of any state or federal court in Contra Costa County, California and waive the defense of inconvenient forum.”
Any provision in the Agreement stating th is Agreement supersedes any invoice and/or purchase order is hereby amended and restated as follows: “You agree that the terms and conditions contained in this Agreement, which, with the acceptance certification, is the entire agreement between you and us regarding the Equipment and which supersedes any purchase order, invoice, request for proposal, response or other related document.” Any provision in the Agreement stating that this Agreement shall automatically renew unless the Equipment is purchased, returned or a notice requirement is satisfied is hereby amended and restated as follows: “Unless the purchase option is $1.00 or $101.00, you agree to send us written notice at least 30 days before the end of the final renewal term that you want to purchase or return the Equipment, and you agree to so purchase or return the Equipment not later than the end of the final renewal term. If you fail to so purchase or return the Equipment at or before the end of the final renewal term, you shall be a holdover tenant with respect to this Agr eement and the Equipment, and this Agreement shall renew on a month-to-month basis under the same terms hereof until the Equipment has been purchased or returned.”
Any provision in the Agreement stating that we may assign this Agreement is hereby amended and restated as follows: “We may sell, assign, or transfer this Agreement without notice to or consent from you, and you waive any right you may have to such notice or consent.”
Any provision in the Agreement stating that you grant us a security interest in the Equipment to secure all amounts owed to us under any agreement is hereby amended and restated as follows: “To the extent permitted by law, you grant us a security interest in the Equipment to secure all amounts you owe us under this Agreement and any supplements hereto. You authorize and ratify our filing of any financing statement(s) and the naming of us on any vehicle title(s) to show our interest.” Any provision in the Agreement stating that a default by you under any agreement with our affiliates or other lenders shall be an event of default under the Agreement is hereby amended and restated as follows: “You will be in default if: (i) you do not pay any Payment or other sum due to us under this Agreement when due or you fail to perform in accordance with the covenants, terms and conditions of th is Agreement; (ii) you make or have made any false statement or misrepres entation to us; or (iii) you dissolve, liquidate, terminate your existence or are in bankruptcy.
NOTE: CAPITALIZED TERMS IN THIS DOCUMENT ARE DEFINED AS IN THE AGREEMENT, UNLESS SPECIFICALLY STATED OTHERWISE.
11557 REV 10/21- MODIFIED – CITY OF SAN PABLO - 4.6.23
Any provision in the Agreement stating that you shall pay our attorneys’ fees is hereby amended and restated as follows: “In the event of any dispute or enforcement of rights under this Agreement or any related agreement, you agree to pay, to the extent permitted by law and to the extent of legally available funds, our reasonable attorneys’ fees (including any incurred before or at tria l, on appeal or in any other pr oceeding), actual court costs and any other collection costs, including any collection agency fee.” Any provision in the Agr eement requiring you to pay amounts due under the Agreement upon the occurrence of a default, failure to appropriate funds or failure to renew the Agreement is hereby amended to limit such requirement to the extent permitted by law and legally available funds.
3. If your end-of-term option is the pur chase of all Equipment for $1.00 or $101.00, the following applies: Unless otherwise required by law, upon your acceptance of the Equipment, title to the Equipment shall be in y our name, subject to our interest under this Agreement.
4. With respect to any “Financed Items,” the following provisions shall be applicable to such Financed Items:
This Addendum concerns the granting to you of certain software and/or software license(s) (“Licensed Software”), the purchase by you of certain software components, including but not limited to, software maintenance and/or s upport (“Products”) and/or the purchase by you of certain implementation, integrati on, training, technical consulting and/or professional services in connection with softw are (“Services”) (collectively, the “Financed Items”) from software licensor(s) and/or supplie r(s) (collectively, t he “Supplier”), all as further described in the agreement(s) between you and Supplier (collectively, the “Product Agreement”). For essential governmental purposes only, you have requested and we have agreed that instead of you paying the fees pursuant to the Product Agreement to Supplier for the Financed Items, we will satisfy your obli gation to pay such fees to Supplier, and in consideration thereof, you sha ll repay the sums advanced by us to Supplier by promptly making certain installment payments to us, which are included in the Payments set forth in the Agreement.
To the extent permitted by law, you grant us a security interest in the license(s), including without limitation, all of your rights in the Licensed Software granted thereunder, the Products, all rights to payment under the Product Agreement, the Financed Items, and all proceeds of the foregoing to secure all am ounts you owe us under this Agreement. You authorize and ratify our filing of any financing statement(s) to show our interest.
Ownership of any Licensed Software shall remain with Supplier thereof. All Financed Items shall be provided by a Supplier unrelated to us, and your rights with respect to such Financed Items shall be governed by the Pr oduct Agreement between you and Supplier, which shall not be affected by this Agre ement. IN NO EVENT SHALL WE HAVE ANY
OBLIGATION TO PROVIDE ANY FINANCED ITEMS, AND ANY FAILURE OF SUPPLIER
TO PROVIDE ANY FINANCED ITEMS SHALL NOT EXCUSE YOUR OBLIGATIONS TO US IN ANY WAY. YOU HAVE SELECTED SUPPLIER AND THE FINANCED ITEMS BASED UPON YOUR OWN JUDGMENT. WE DO NOT TAKE RESPONSIBILITY FOR THE INSTALLATION OR PERFORMANCE OF THE FINANCED ITEMS. SUPPLIER IS
NOT AN AGENT OF OURS AND WE ARE NOT AN AGENT OF SUPPLIER, AND
NOTHING SUPPLIER STATES OR DOES CAN AFFECT YOUR OBLIGATIONS HEREUNDER. YOU WILL MAKE ALL PAYMENTS UNDER THIS AGREEMENT
REGARDLESS OF ANY CLAIM OR COMPLAINT AGAINST ANY SUPPLIER,
LICENSOR OR MANUFACTURER, AND ANY FAILURE OF A SERVICE PROVIDER TO
PROVIDE SERVICES WILL NOT EXCUSE YOUR OBLIGATIONS TO US UNDER THIS AGREEMENT. WE MAKE NO WARRANTIES, EXPRESS OR IMPLIED, AS TO THE
FINANCED ITEMS COVERED BY THE PRODUCT AGREEMENT AND TAKE
ABSOLUTELY NO RESPONSIBILITY FOR MERCHANTABILITY OR FITNESS FOR
ANY PARTICULAR PURPOSE OR AS TO ANY PATENT, TRADEMARK OR
COPYRIGHT INFRINGEMENT, CONDITION , QUALITY, ADEQUACY, TITLE, DATA
ACCURACY, SYSTEM INTEGRATION, FUNCTION, DEFECTS OR ANY OTHER ISSUE IN REGARD TO THE FINANCED ITEMS. YOU HEREBY WAIVE ANY CLAIM (INCLUDING ANY CLAIM BASED ON STRICT LIABILITY OR ABSOLUTE LIABILITY IN
TORT) THAT YOU MAY HAVE AGAINST US FOR ANY LOSS, DAMAGE (INCLUDING,
WITHOUT LIMITATION, LOSS OF PROFIT S, LOSS OF DATA OR ANY OTHER
DAMAGES) OR EXPENSE CAUSED BY THE FINANCED ITEMS COVERED BY THE
PRODUCT AGREEMENT OR A TERMINATION OF THE FINANCED ITEMS PURSUANT
TO AN EVENT OF DEFAULT, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, LOSS, EXPENSE OR COST.
The following shall be additional events of default under the Agreement: (i) you fail to perform in accordance with the covenants, terms and c onditions of the Product Agreement, or (ii) the Product Agreement is terminated, suspended, materially restricted or limited.
The following shall be additional remedies we have for your default under the Agreement: We shall have the right to: (a) cause the termination of the Financed Items and you irrevocably consent to such termination of the Financed Items by Supplier; and (b) require you to immediately stop using the Financed Items (regardless of whether you are in default under the Product Agreement) and you shall, at our opti on, either deliver to us a certification executed by a duly authorized officer certifying that you have ceased use of the Financed Items or deliver the Financed Items to a loca tion designated by us. In the event you are entitled to transfer the right to use the Financed Items to any third party, you hereby agree to transfer any such right to use the Financ ed Items to any third party selected by us and acknowledge that you shall have no right to fees payable by any third party in connection with such transfer. However, we shall not be required to mitigate our damages caused by a default by transferring any Financed Items to a third party.
The parties wish to amend the above-referenced Agreement as follows:
Paragraph 13. MAINTENANCE AND SUPPLIES:
Sentence 13 has been modified to read as follows:
"At the end of the first year of this Agreement, and once each successive 12-month period thereafter, the maintenance and supplies portion of the Payment and the overage charges may be increased by a maximum of 5% of the existing payment or charge."
By signing this Addendum, Customer acknowledges the applicable changes noted above are incorporated by reference into the Agree ment. In all other respects, the terms and conditions of the Agreement remain in full force and effect and remain binding on Customer. In the event of any conflict between the terms and conditions of the Agreement and this Addendum, the terms and conditions of this Addendum shall control. Customer has caused this Addendum to be executed b y its duly authorized officer as of the date below.
U.S. Bank Equipment Finance
CITY OF SAN PABLO
Lessor
Customer
X
Signature
Signature
Title
Date
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