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HomeMy WebLinkAbout16289 ORD - 06/03/1981AN ORDINANCE TERMINATING THE AGREEMENT AUTHORIZED BY ORDINANCE 15468 AND AMENDED BY ORDINANCE 15724, MADE BETWEEN TEXAS GOVERN- MENTAL AND INDUSTRIAL FINANCE, INC., AND THE CITY OF CORPUS CHRISTI TO UPGRADE CERTAIN DATA PROCESSING EQUIPMENT PUR- SUANT TO THE LEASE AGREEMENT FOR GROUP B DATA PROCESSING EQUIPMENT, DATED MARCH 7, 1978, WITH SYSTEM MARKETING, INC. AND ASSIGNED TO SECURITY PACIFIC NATIONAL BANK; AND IN SUB- STITUTION THEREFOR, AUTHORIZING THE CITY MANAGER TO EXECUTE AN UPGRADE AGREEMENT WITH TEXAS GOVERNMENTAL AND INDUSTRIAL FINANCE, INC. WITH PURCHASE OPTION, FOR A RENTAL OF $3,536.00 PER MONTH FOR A TERM OF 33 MONTHS ALL AS MORE FULLY SET FORTH IN THE UPGRADE AGREEMENT TO LEASE DATA PRO- CESSING EQUIPMENT WITH THE PURCHASE OPTION, A SUBSTANTIAL 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. WHEREAS, by Ordinance 15468, the City has previously accepted and approved the assignment of the right to make data processing equipment upgrade from Security Pacific National Bank to Texas Governmental and Industrial Finance, Inc. (hereinafter called TGIF); WHEREAS, the upgrade supplement agreement previously authorized by Ordinances 15468 and 15724 has not been performed by TGIF because of delays in securing approval from its financer, Security Pacific National Bank and because of changes in the market conditions; WHEREAS, the City still desires to upgrade certain disk drive equip- ment acquired pursuant to the lease agreement for Group B data processing equipment, dated March 7, 1978 with System Marketing, Inc. and assigned to Security Pacific National Bank; WHEREAS, market conditions are such and financing is available to carry out the purposes of these previous agreements with minor modifications, WHEREAS, the City needs to acquire additional disk storage space as soon as possible in conjunction with the installation of the new central processing unit; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: SECTION 1. That the agreement authorized by Ordinance No. 15468 and amended by Ordinance No. 15724, made between TGIF and the City of Corpus Christi to upgrade certain data processing equipment pursuant to the lease 16289 MICROFILMED SEP 4 7 i984 'agreement for Group B data processing equipment, dated March 7, 1978, with Systems Marketing, Inc. and assigned to Security Pacific National Bank, be terminated. -SECTION •2. That the City Manager be and is hereby authorized to execute an upgrade agreement with TGIF to lease data processing disk drive equipment, with purchase option, for a rental of $3,536.00 per month for a term of 33 months, with a City option.to terminate the lease after 21 months upon giving TGIF and its assigns at least 60 days advance written notice. SECTION 3. That the termination of the agreement authorized by Ordinance No. 15468 and amended by Ordinance No. 15724, and the authoriza— tion for the City Manager to execute the new upgrade agreement provided for herein are contingent upon: _(a) TGIF paying on behalf of the City to Security Pacific National Bank that portion of the City's outstanding indebt- edness on one IBM 3333 and three IBM 3330 disk -drives acquired as part of the aforesaid March 7, 1978 lease agreement with Systems Marketing, Inc. for Group B equipment;. (b) .Security Pacific National Bank reducing the amount of the City's monthly rental payment approximately $2,900.00 for a period.of 21 months under the aforesaid Systems Marketing, Inc. lease agreement; and (c) TGIF pays to the City $4,500.00 for sustaining higher costs of maintaining. service on one IBM 3333 and three IBM 3330 disk drives, rather than on one IBM 3350 Model A2 and two IBM 3350 Model B2 disk drives, which equipment would have been furnished to the City under the previous agreement with TGIF, dated July 25, 1980. SECTION 4. That the City Manager -be and is hereby authorized to execute any -and all documents necessary to implement the aforesaid upgrade agreement. SECTION 5. The necessity to terminate the agreement previously authorized and in lieu thereof to execute an upgrade agreement, all as more fully set forth hereinabove, creates a public necessity requiring the sus- pension of the Charter rule that no ordinance or resolution shall be passed finally on the date of its introduction but that such ordinance or resolution shall be read at three several meetings of the City Council, and the Mayor or Council members, having declared that such emergency and necessity exists, having requested the suspension of the Charter rule and that this ordinance 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 ORDAINED, this 3 day of June, 1981. ATTEST: /f. i ecret s''retc5e ary MAYOR de THE TY OF CORPUS CHRISTI, TEXAS APPROVED .. DAY OF JUNE, 1981: J. BRUCE AYCOCK, CITY ATTORNEY By Assis nt NIty Attorney UPGRADE AGREEMENT TO LEASE DATA PROCESSING EQUIPMENT WITH PURCHASE OPTION THE STATE OF TEXAS COUNTY OF NUECES This Agreement is made between Texas Governmental & Industrial Finance, Inc., herein called LESSOR, and City of Corpus Christi, a municipal corporation located 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 following described personal property for a period of thirty-three (33) 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; provided, however, that Lessee may terminate this agree- ment after twenty-one (21) months of the term upon giving Lessor and its assigns at least sixty (60) days advance written notice. EQUIPMENT TYPE MODEL DESCRIPTION QUANTITY MANUFACTURER IBM 3370 Al Controller/Disk 1 IBM — — Access Storage Device IBM 3370 B1 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 specifi- cations 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 at 1015 Santa Fe, Corpus Christi, Texas, during normal business hours or at times mutually agree- able to the parties. Lessor shall bear all risk of loss for this equipment upon taking such delivery and shall be responsible 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 mainte- nance on the said equipment. Lessee specifically disclaims all other warranties in relation to such equipment, including, but not limited to, warranties of merchantability and fitness for a particular use. 4. Rental. Total rental payable by Lessee to Lessor under this upgrade supplement shall be payable in monthly installments, the first install- ment to be paid thirty (30) days after written acceptance by Lessee. The pay- ments under this upgrade supplement for the equipment listed in paragraph 2 above will be as follows: Payments No. 1 through 33 -$3536.00 each Lessor or its assigns shall bill Lessee for each monthly installment. Such billing shall be sent to Lessee's Chief Accountant. 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, possession or use thereof. Should the legislative body of the State of Texas or any local govern- mental 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 requirement, 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 non- payment or late payment of such taxes which resulted from Lessor's failure to timely forward such assessment and Lessor's invoice. 2 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 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, or any extension thereof, and upon payment 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, including the twelve month extension, less the total portion of those payments attributable to interest. 3 8. Cancellation for Nonappropriation. Lessee may cancel this agree- ment 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 agree- ment. No penalty shall attach in the event of any such nonappropriation. 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 law to take possession of the above described equipment in the event of such cancellation. 9. Consultant. Lessor will supply consultant for planning and install- ation 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 Governmental & Industrial Finance (TGIF) 11325 Pegasus, W-253 Dallas, Texas 75238 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. 4 13. Maintenance and Inspection. Subject to the requirement that the equipment be installed, operational, and accepted by the manufacturer for main- tenance, Lessee at its own cost and expense shall maintain the equipment in good operating condition, repair and appearance and protect the same from deteriora- tion other than normal wear and tear. Lessee agrees to use the equipment only in a manner reasonable 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. 14. Indemnity. Lessee agrees to indemnify and hold the Lessor harm- less from any and against all claims by others arising out of the ownership, selection, leasing, operation, control and maintenance of the equipment, in- cluding but not limited to accidents causing personal injury, property damage 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 covenantssetout 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. 5 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 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. 19. Delivery. Lessor will deliver the equipment no later than thirty (30) days after this agreement has been executed. For purpose of this agreement, delivery shall occur when the Lessor causes said equipment to be put and held at Lessee's disposition at 1015 Santa Fe, Corpus Christi, Texas, during the hours from 8 a.m. until 5 p.m., Monday through Friday (not in- cluding national holidays) or during times mutually agreeable to the parties, and giving Lessee any notification reasonably necessary to enable Lessee to take possession. Such notification shall 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 extendthedelivery 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 maint-. 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 of this lease, including the right to receive further rental payments, to other than City National Bank of Plano, Texas, 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 equip- ment or this lease shall have any force or effect prior to Lessee's written 6 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 performed 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), any defense, counterclaim, offset, or recoupment 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 - 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, 7 7 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 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 conditioning, 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. 8 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. 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 pTaced 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. 9 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. 29. Supersedes Previous Agreement. This agreement supersedes the previous agreement between the parties dated July 25, 1980, and authorized by ordinances 15468 and 15724. EXECUTED in duplicate originals this day of 1981, by the duly authorized representatives of Lessor and Lessee. ATTEST: TEXAS GOVERNMENTAL & INDUSTRIAL FINANCE, INC. Secretary LESSOR ATTEST: CITY OF CORPUS CHRISTI, TEXAS City Secretary APPROVED: ® /� BY GJa Assistant City Attorney Bob Poe, Data Processing Manager BY R. Marvin Townsend, City Manager LESSEE Corpus Christi, Texas 3 day of , 1981 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, but that such ordinance or resolution shall be read at three meetings of the City Council; I/we, 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, Respectfully, Council Members The City of Corpus Christi, Texas The Charter rule was suspended by the following vote: Luther Jones Betty N. Turner Jack K. Dumphy Bob Gulley Herbert L. Hawkins, Jr. Dr. Charles W. Kennedy Cliff Zarsky The above ordinance was passed by the following vote: Luther Jones Betty N. Turner Jack K. Dumphy Bob Gulley Herbert L. Hawkins, Jr. Dr. Charles W. Kennedy Cliff Zarsky 16289,