HomeMy WebLinkAbout15468 ORD - 04/09/1980AN ORDINANCE
AUTHORIZING THE CITY MANAGER TO ACCEPT AND APPROVE THE
ASSIGNMENT OF THE RIGHT TO MAKE EQUIPMENT UPGRADES FROM
SECURITY PACIFIC NATIONAL BANK TO TEXAS GOVERNMENT &
INDUSTRIAL FINANCE, INC.. PURSUANT TO THE LEASE AGREEMENT
FOR GROUP B DATA PROCESSING EQUIPMENT, DATED MARCH 7, 1978,
WITH SYSTEMS MARKETING, INC., AND ASSIGNED TO SECURITY
PACIFIC NATIONAL BANK; AUTHORIZING THE CITY MANAGER TO
EXECUTE AN UPGRADE SUPPLEMENT TO THE LEASE AGREEMENT FOR
GROUP B DATA PROCESSING EQUIPMENT, WITH TEXAS GOVERNMENT
& INDUSTRIAL FINANCE, INC., FOR AN ADDITIONAL RENTAL OF
$590.00 PER MONTH FOR A TERM OF 36 MONTHS ALL AS MORE
FULLY SET FORTH IN THE UPGRADE SUPPLEMENT TO LEASE OF
DATA PROCESSING EQUIPMENT WITH PURCHASE OPTION, A SUB-
STANTIAL COPY OF WHICH IS ATTACHED HERETO AND MADE A
PART HEREOF, MARKED EXHIBIT "A"; AUTHORIZING THE CITY
MANAGER TO EXECUTE ANY AND ALL DOCUMENTS NECESSARY TO
IMPLEMENT THE AGREEMENT; AND DECLARING AN EMERGENCY.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI,
TEXAS:
SECTION 1. That the City Manager be authorized to accept and approve
the assignment of the right to make equipment upgrades from Security Pacific
National Bank to Texas Government & Industrial Finance, Inc., pursuant to the
lease agreement for Group B data processing equipment, dated March 7, 1978,
with Systems Marketing, Inc., and assigned to Security Pacific National Bank.
SECTION 2. That The City Manager be authorized to execute an upgrade
supplement to the lease agreement for Group B data processing equipment, with
Texas Government & Industrial Finance, Inc., for an additional rental of
$590.00 per month for a term of 36 months all as more fully set forth in the -
Upgrade Supplement To Lease Of Data Processing Equipment With Purchase Option,
a substantial copy of which is attached hereto and made a part hereof, marked
Exhibit "A". .
SECTION 3. That the City Manager be authorized to execute any and
all documents necessary to implement the agreement.
SECTION 4. The necessity to authorize execution of the aforesaid
Upgrade Supplement To Lease Of Data Processing Equipment With Purchase Option
at the earliest practicable date creates a public emergency and an imperative
public necessity requiring the suspension of the Charter rule that no ordinance_
or resolution shall be passed fdnally on the date of its introduction but that
such ordinance or resolution shall be read at three several meetings of the
Cite Council, and the Mayor having declared that s!:ch emergency and necessity
exist, having requested the suspension of the Charter rule and tI s ordinance
15468 G 9
be passed finally on the date of its introduction and take effect and be in
full force and effect from and after its passage, IT IS ACCORDINGLY SO OR-
DAINED, this the 9 day of April, 1980.
ATTEST:
City Secretary
APPROVED:
7 /fV
J. BRUCE AYCOCK, CITY ATTORNEY
By
MAY
THE
ITY OF CORPUS CHRISTI, TEXAS
UPGRADE SUPPLEMENT TO LEASE OF
DATA PROCESSING EQUIPMENT WITH PURCHASE OPTION
THE STATE OF TEXAS 1
COUNTY OF NUECES
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THIS AGREEMENT is made between Texas Governmental & Industrial Finance,
Inc. herein called LESSOR, and City of Corpus Christi, a municipal corporation lo-
cated in Nueces County, Texas, herein called LESSEE, upon the following terms and
considerations:
1. Venue. This agreement is performable in Corpus Christi, Nueces
County, Texas, and shall be construed, enforced and performed in accordance
with the laws of the State of Texas.
2. Term and Equipment. Lessor hereby leases to Lessee the follow-
ing described personal property for a period of thirty-six (36) months commencing
upon written acceptance by Lessee certifying to Lessor that all equipment listed
herein is installed, operational, and has been accepted for maintenance by the
equipment manufacturer.
EQUIPMENT TYPE MODEL DESCRIPTION QUANTITY MANUFACTURER
IBM 3350 A2 Controller/Disk. 1 IBM
Access Storage
Device
IBM 3350 B2 Disk Access 2 IBM
Storage Device
3. Upgrade Authorized by Bid Invitation. This agreement is made and
authorized by Bid Invitation No. 7506/78 dated December 28, 1977, and the speci-
fications therein set out. Lessor shall take delivery of the equipment specified
as Group B, items 2 and 3 of Section 2 of the data processing equipment lease
agreement between the City of Corpus Christi and Systems Marketing, Inc., dated
March 7, 1978, as assigned to Security Pacific National Bank. Lessor shall take
delivery of such equipment at the equipment's present location on the 8th floor
of the Nueces Building, 317 Peoples Street, Corpus Christi, Texas during normal
business hours or at times mutually agreeable to the parties. Lessor shall bear
all risk of loss for this equipment upon taking such delivery and shall be respon-
sible for all transportation charges for this equipment incurred after taking such
delivery. Lessee specifically warrants that this equipment meets all requirements
which will allow IBM to perform maintenance on the said equipment. Lessee specifi-
cally disclaims all other warranties in relation to such equipment, including, but
not limited to, warranties of merchantability and fitness for a particular use.
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4. Rental. Total rental payable by Lessee to Lessor under this lease
shall be payable in monthly installments, the first installment to be paid thirty
(30) days after written acceptance by Lessee. The rental will be as follows:
Payment No. Total Payment
1 $590.00
2 590.00
3 590.00
4 590.00
5 590.00
6 590.00
7 590.00
8 590.00
9 590.00
10 590.00
11 590.00
12 590.00
13 590.00
14 590.00
15 590.00
16 590.00
17 590.00
18 590.00
19 590.00
20 590.00
21 590.00
22 590.00
23 590.00
24 590.00
25 590.00
26 590.00
27 590.00
28 590.00
29 590.00
30 590.00
31 590.00
32 590.00
33 590.00
34 590.00
35 590.00
36 590.00
TOTAL PRINCIPAL
TOTAL INTEREST
TOTAL AMOUNT
Lessor or its assigns shall bill Lessee for each monthly install-
ment. Such billing shall be sent to Lessee's Chief Accountant.
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5. Taxes. As part of the consideration for this lease, and as
part of Lessor's cost in leasing the equipment to Lessee, Lessee will timely
pay and discharge all personal property taxes and any sales taxes now or
hereafter imposed by the State of Texas, or any local government in the State
of Texas, upon the equipment or upon the ownership, leasing, purchase, posses-
sion or use thereof. Should the legislative body of the State of Texas or any
local governmental entity thereof hereafter provide for and require license
or registration fees, sales and use taxes, rental taxes, gross receipts taxes,
or any other taxes, upon the equipment or upon the ownership, leasing, purchase,
possession or use thereof, Lessee will timely pay and discharge such fees or
taxes. Said payment shall be made in the name of the Lessor or its assigns
and shall be made and considered as additional rental under this lease and shall
be payable by Lessee within thirty (30) days after Lessee's receipt of Lessor's
invoice for such amount accompanied by proof of assessment or license or fee
requirement. Upon Lessor's receipt of such assessment or license or fee require-
ment, Lessor shall immediately forward to Lessee said invoice and proof of
assessment or license or fee requirement. Such invoiced amount shall not include
and Lessee shall not be liable for any amounts incurred as penalties or interest
for nonpayment or late payment of such taxes which resulted from Lessor's failure
to timely forward such assessment and Lessor's invoice.
At the time of the execution of this agreement, there are no taxes,
licensing or registration fees which will be assessed or required by the United
States government, or the government of any state other than the State of Texas,
or any local government in any state other than the State of Texas, upon the
equipment or upon the ownership, leasing, purchase, possession or use thereof.
Should the legislative body of the United States, or any state other than the
State of Texas, or any local government in any state other than the State of
Texas hereafter provide for and require license or registration fees, sales
and use taxes, rental taxes, gross receipts taxes, or any other taxes, upon
the equipment or upon the ownership, leasing, purchase, possession or use
thereof, Lessee, as further consideration for this lease and as part of
Lessor's cost in leasing equipment, will pay as reimbursement to Lessor an
amount equal to such taxes and fees assessed or required. Said reimbursement
payment shall be payable by Lessee to Lessor within thirty (30) days after
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Lessee's receipt of Lessor's written request accompanied by proof of Lessor's
payment of said taxes or fees in the form of a photostatic copy of said tax
or fee receipts. Such reimbursement payment shall not include and Lessee shall
not be liable for any amounts incurred by Lessor as penalties or interest for
nonpayment or late payment of such taxes or fees.
Nothing herein shall be construed to require Lessee to be responsible
or liable for any federal, state or local taxes, or payments in lieu thereof,
imposed upon or measured by the net income of Lessor.
All notices required by this Section to be given to Lessee shall be
addressed to the Lessee's Director of Finance.
6. Late Charges. Payments received more than thirty (30) days
after the due date and without there then being present an event of Lessor's
default will be subject to a late charge at the rate of 10% per annum based
on the amount of the late payment.
7. Purchase Option. At the end of the lease term, and upon pay-
ment of any amounts due and owing, under the terms of this agreement, Lessee
shall be deemed to have purchased the equipment, and title thereto shall pass
accordingly. Prior to the end of the lease term, Lessee may purchase the
equipment by paying all rental and other charges due and owing, if any, plus
the outstanding balance. For purposes of the preceding sentence, "outstanding
balance" means the total of the rental payments required to be made for the
remainder of the lease term, less the total portion of those payments attribu-
table to interest.
8. Cancellation for Nonappropriation. Lessee may cancel this
agreement should the present or any future City Council of the City of Corpus
Christi not appropriate in any fiscal year funds for the payments required by
this agreement. No penalty shall attach in the event of any such nonappro-
priation. In the event of nonappropriation, Lessee shall give the Lessor
sixty (60) days notice prior to the end of the then current fiscal year before
cancellation of this agreement and Lessee shall not be obligated to make any
payments beyond the end of the sixty-day notice. Lessor shall have all the
rights and remedies under the lou to take possession of the above described
equipment in the event of such cancellation.
9. Consultant. Lessor will supply consultant for planning and
installation for the new computer equipment described above, including air
•
conditioning, power and location. Said consultant must be available during
the installation and at least two days prior thereto.
10. Limited Warranty. Lessor warrants that the above described equip-
ment meets specification requirements set out in Bid Invitation No. 7506/78 which
will allow the equipment manufacturer to perform maintenance on the hardware.
11. Notices. Notices provided for herein shall be sufficient if
sent by certified United States mail, addressed as follows:
TO LESSOR: Texas Government and Industrial Finance (TGIF)
11520 North Central Expressway
Suite 204
Dallas, Texas 75243
TO LESSEE: City of Corpus Christi
P. 0. Box 9277
Corpus Christi, Texas 78408
Provided, however, that any notice required by this agreement to be
given to a particular officer or office of the Lessee must be directed to that
officer or office at the above address; and provided further that any other
specific requirement imposed by this agreement concerning the manner in which
a notice is to be given to Lessee shall also be complied with.
12. Title. Title to the above equipment and all parts thereof
shall not pass to Lessee until purchase is made thereof as herein provided.
Lessee shall not remove, conceal or otherwise interfere with the title or
ownership plate of Lessor affixed to equipment described above unless and
until equipment is purchased and full payment made thereof as herein provided.
Said equipment and all parts thereof shall retain their character as personal
property.
13. Maintenance and Inspection. Subject to the requirement that
the equipment be installed, operational, and accepted by the manufacturer
for maintenance, Lessee at its own cost and expense shall maintain the equip-
ment in good operating condition, repair and appearance and protect the same
from deterioration other than normal wear and tear. Lessee agrees to use the
equipment only in a manner reasonably contemplated by the manufacturers.
Lessee shall use the equipment either in the regular course of its business
or for the benefit of some other governmental entity, but in no event shall
Lessee authorize or allow persons other than Lessee's employees to operate
the equipment. Lessor shall have the right, during normal working hours,
to enter upon the premises where the equipment is located to check or inspect
the equipment.
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14. Indemnity. Lessee agrees to indemnify and hold the Lessor
harmless from any and against all claims by others arising out of the owner-
ship, selection, leasing, operation, control and maintenance of the equipment,
including but not limited to accidents causing personal injury, property da-
mage or death, unless occasioned by the negligence of Lessor, its agents or
employees. The equipment manufacturer shall not be construed to be an agent
of Lessor.
15. Quiet Use and Enjoyment. Lessor hereby covenants to provide
Lessee during the term of this agreement with quiet use and enjoyment of the
equipment described hereinabove and Lessee shall during the said term peace-
fully and quietly have and hold and enjoy the equipment described herein
without suit, or hindrance from Lessor except as expressly set forth in this
agreement. Any assignee of Lessor shall not interfere with such quiet use
and enjoyment during the contract term so long as Lessee is not in default of
any of the covenants set out herein.
16. Insurance. At its own expense. Lessee shall cause comprehen-
sive general insurance to be carried and maintained with respect to the
equipment described hereinabove. All insurance proceeds from casualty losses
shall be payable solely to Lessee; provided, however, Lessee shall remit said
proceeds to Lessor unless Lessee provides satisfactory proof to Lessor that
said equipment has been replaced or restored to good working order. On
Lessee's acceptance of the equipment, Lessee shall provide evidence to Lessor
of comprehensive general insurance.
Lessee shall carry workmen's compensation insurance in Texas
statutory amounts covering all employees working on, in. near or about the
hereinabove described equipment and shall require any other person or entity
working on, in, near or about said equipment to carry such coverage. Upon
request, Lessee shall supply to Lessor evidence of such coverage throughout
the contract term.
17. Risk of Loss. Lessor shall bear all risk of loss to the equip-
ment until delivery to Lessee. Upon delivery, Lessee shall bear all risk of
u
loss to the equipment.
18. Transportation. The lessor shall be responsible for all trans-
portation charges relative to the shipping of equipment to Lessee's location.
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19. Delivery. Lessor will deliver the equipment no later than
thirty (30) days after this agreement has been executed. For purposes of
this agreement, delivery shall occur when the Lessor causes said equipment
to be put and held at Lessee's disposition at the 8th floor of the Nueces
Building, 317 Peoples Street, Corpus Christi, Texas, during the hours from
8 a.m. until 5 p.m., Monday through Friday (not including national holidays)
or during times mutually agreeable to the parties, and giving Lessee any noti-
fication reasonably necessary to enable Lessee to take possession. Such
notification shall be given to Lessee's Data Processing Manager.
20. Delay in Delivery. If delay in delivery is foreseen, Lessor
shall give immediate written notice to Lessee's Purchasing Office. Lessee
has the right to extend the delivery date if the reasons appear to Lessee to
be valid. Until delivery of all of the equipment, Lessor shall keep Lessee
advised at all times of the status of the order.
21. Costs Incurred Prior to Acceptance. Prior to Lessee's written
acceptance, Lessor shall be responsible and pay for all costs relating to the
equipment. including that for installation, equipment debugging, and mainte-
nance.
22. Assignment. Lessee will not sublet or assign this agreement
or any part of it without the prior written approval of Lessor. Any assign-
ment or transfer of Lessor's right, title or interest in the equipment or
this lease, including the right to receive further rental payments. to other
than Security Pacific National Bank
and subsequently
to a subsidiary or affiliate thereof, without the prior written consent of
Lessee, shall be void. No assignment or transfer of Lessor's right, title or
interest in the equipment or this lease shall have any force or effect prior
to Lessee's written acceptance of the equipment. Upon assignment, the Lessor
( TGIF ) shall continue to assume and faithfully
perform and discharge all of the terms, covenants and obligations to be per-
formed by Lessor under this lease. Lessee shall not assert against any
assignee or transferee of Lessor's rights (by way of defense to any claim of
such assignee or transferee), an defense, counterclaim, offset, or recoup-
ment of any kind which Lessee may now or hereafter have against Lessor;
provided, however, that in the event of cancellation of this lease for non-
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appropriation, Lessee shall not be obligated to make any payments beyond the
end of the last fiscal year in which appropriation for payments under this
lease was made by the City Council of the City of Corpus Christi.
23. Lessee Default. Any of the following events will constitute
an Event of Lessee Default under this lease:
a) Lessee fails to make any payment required when due and
such failure continues after written notice (certified mail, re-
turn receipt requested, addressed to Lessee's Director of Finance)
by Lessor for a period of fifteen (15) days after the receipt of
such written notice; or
b) Lessee fails to observe or perform any other covenants,
conditions, agreements or warranties of the lease and such failure
continues for thirty (30) days without cure after Lessor provides
Lessee written notice (certified mail, return receipt requested,
addressed to Lessee's City Manager) of the failure.
24. Lessor Remedies for Lessee Default. Upon the occurrence of
an Event of Lessee Default, then Lessor may, at its option, take any of the
following actions:
a) Without retaking possession of the leased property, hold
Lessee liable for all rents and other sums which shall become due
under the terms of this lease subject, however, to the nonappro-
priation provisions of Section 8 of this agreement.
b) Terminate the lease and all rights of the Lessee with res-
pect to the equipment. After complying with Lessee's security
regulations, Lessor may then enter the premises where the equip-
ment is located and take possession thereof or require Lessee to
deliver the equipment at a reasonably located place on Lessee's
premises where Lessor may take possession of the equipment. Upon
such termination, Lessor will hold, possess and enjoy or sell,
lease or otherwise deal with the equipment free from any right of
Lessee or its successors in such equipment.
c) Lessee will be'liable to Lessor for all costs associated
with Lessor's regaining possession of said equipment or enforce-
ment of the performance of this contract; provided, however, that
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Lessee will in no event be liable for any deficiency in the amount
of the proceeds of the Lessee's subsequent disposition, if any,
of the equipment.
25. Lessor Default. Any of the following events will constitute
an Event of Lessor Default under this lease.
a) Failure to deliver all of the equipment by the delivery
date specified in this agreement, unless Lessee extends the de-
livery date; or
b) Failure to deliver all of the equipment before expiration
of Lessee's last extension, if any, of the delivery date; or
c) Failure to properly install all of the equipment within
a reasonable time, not to exceed five (5) days, after delivery of
all of the equipment; or
d) Failure of any or all equipment to operate and perform
satisfactorily within a reasonable time, not to exceed five (5)
days, after delivery of all of the equipment; or
e) Failure of Lessor to provide or have available to Lessee
during the installation, and for at least two (2) days prior there-
to, a.consultant for planning and installation of the equipment,
connecting cables, air conditioniing, power and location; or
f) Failure of any or all equipment to be accepted for mainte-
nance by its manufacturer within a reasonable time, not to exceed
five (5) days, after delivery of all of the equipment; or
g) Failure of any or all equipment to meet the specifica-
tion requirements set out in Bid Invitation No. 7506/78 ; or
h) Failure of any or all equipment to operate and perform
satisfactorily due to latent defect or design defect of the
equipment.
26. Lessee Remedies for Lessor Default. Upon the occurrence of
an Event of Lessor Default, then Lessee may, at its option, take any one of
the following actions:
a) Purchase or lease any or all of the equipment elsewhere
and charge the full increase in cost and handling to the default-
ing Lessor.
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b) Terminate this lease. in whole or in part with respect
to any or all of the equipment. returning to Lessor, at Lessor's
expense, the equipment with respect to which the lease has been
terminated.
c) Pursue any other remedy provided by law.
27. Equal Opportunity. Lessor, during the performance of this
contract. will (a) treat all applicants and employees without discrimination
as to race, color, religion, sex or national origin, and (b) identify itself
as an equal opportunity employer in all help -wanted advertising or requests.
Lessor is hereby placed on notice that any complaints filed with the Lessee
alleging that Lessor is not an equal opportunity employer during the six
months preceding the date of receipt of bids which resulted in this contract,
will be referred to the Human Relations Commission of the City of Corpus
Christi through its Human Relations Administrator for the purpose of review
and recommendations. The report of the Human Relations Commission will be
transmitted to the Purchasing Agent or the Director of Engineering and Phy-
sical Development who will include a summary of such report with any future
bid award recommendations for which the Lessor is a bidder and bring to the
attention of the City Council of the City of Corpus Christi any such report
received prior to the issuance of authority to deliver or a work order to
Lessor. A copy of this report shall be sent to the Lessor. The Human
Relations Administrator will follow up any such report and bring to the
attention of the Commission any further action by the Lessor which would in-
clude that the findings of the Commission should be modified. Any such
modified findings of the Commission will be delivered to the Director of
Engineering and Physical Development or Purchasing Agent with a copy to the
Lessor and be included in any future bid award recommendations.
28. Modifications. This agreement, including the bid documents,
as outlined above, expresses the entire understanding of the parties with
reference to the subject matter hereof, and no representations or agreements
modifying or supplementing the terms of this agreement shall be valid unless
in writing signed by persons authorized to sign agreements on behalf of each
party.
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EXECUTED in duplicate originals this day of
, by the duly authorized representatives of Lessor and Lessee.
ATTEST:
Secretary LESSOR
ATTEST: CITY OF CORPUS CHRISTI. TEXAS
By
City Secretary R. Marvin Townsend, City Manager
APPROVED:
DAY OF , 1980:
J. BRUCE AYCOCK, CITY ATTORNEY
By
Assistant City Attorney
birector of Finance
Corpus Christi, Texas
9 day of
9J
TO THE MEMBERS OF THE CITY COUNCIL
Corpus Christi, Texas
For the reasons set forth in the emergency clause of the foregoing ordinance, a
public emergency and imperative necessity exist for the suspension of the Charter
rule or requirement that no ordinance or resolution shall be passed finally on
the date it is introduced, and that such ordinance or resolution shall be read
at three meetings of the City Council; I, therefore, request that you suspend
said Charter rule or requirement and pass this ordinance finally,on the date it
is introduced, or at the present meeting of the City Council.
Respectfully,
/`e.
MAYOR Jr
THE CI OF CORPUS CHRISTI, TEXAS
The Charter rule was suspended by the following vote:
Luther Jones
Edward L. Sample
Dr. Jack Best
David Diaz
Jack K. Dumphy
Betty N. Turner
Cliff Zarsky
The above ordinance was passe by the following vote:
Luther Jones
Edward L. Sample
Dr. Jack Best
David Diaz
Jack K. Dumphy
Betty N. Turner
Cliff Zarsky
15468