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.
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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.
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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.
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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.
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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
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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,
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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.
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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.
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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,