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HomeMy WebLinkAboutC2009-213 - 6/9/2009 - ApprovedI Financial Services EFFECTIVE DATE: March 25, 2[109 MASTEK LEASE A(9KEEMkN I LESSOR: DELL FINANCIAL SERVICES L.L.C. LESSEE Payment Address: Principal Address: Payment Processing Center City of Corpus Christi, Texas 4319 Collection Center Dr. 9201 Leopard St. Chicago, IL 60693 Cor us Christi Texas 78401 ~~ ~~ ~~~ _~.~ Fax: _ Attention: ~I f2.Ci-o.' - ~1 This Master Lease Agreement (this "Agreement"), effective as of the l=ffective Date set forth above, is between the Lessor and Lessee named above. Capitalized terms have the meaning set forth in this Agreement. 1. LEASE. (a) Lessor hereby ceases to Lessee and Lessee hereby leases the equipment ("Products"), Software {defined below), and services or fees, where applicable, as described in any lease schedule {"Schedule"}. Each Schedule sha11 incorporate by reference the terms and conditions of this Agreement and contain such other terms as are agreed to by Lessee and Lessor. Each Schedule shall constitute a separate lease of Products ("Lease"). In the event of any conflict between the terms of a Schedule and the terms of this Agreement, the terms of the Schedule shall prevail. Lessor reserves all rights to the Products not specifically granted to Lessee in this Agreement or in a Schedule. Execution of this Agreement does not create an obligation of either party to lease to or from the other. (b) Administration under DIR Contract No. DIR-SDD-890. (i) For requests involving the leasing of Products, each potentia€ Lessee will submit its request directly to the Lessor. Lessor shall apply the then current Product pricing discounts as stated within Section 4 of the DER Contract No. DIR-SDD-890 or the price as agreed upon by Lessee and Lessor, whichever is lower. Lessor shall submit the lease proposal and all o#her applicable documents directly to the potential Lessee and negotiate the Schedule terms directly with the potential Lessee. (ii} All leasing activities in conjunction to this MLA shall be treated as a "purchase sale" in regards to solely the requirements of the Lessor to report the sale and make payment of the DIR administrative fee as defined within Section 5 of the DIR Contract No. DIR-SDD-890. (iii)- Upon agreement by Lessor and Lessee on pricing, availability and the like, Lessee may issue a purchase order in the amount indicated on the Schedule to Lessor for the Products and reference said DIR Contract No. DIR-SDD-890 on the purchase order. Any pre-printed terms and conditions on the purchase order submitted by the Lessee shalt not be effective with respect to the lease of Products hereunder. Rather, the terms and conditions of this MLA and applicable Schedule terms and conditions shall control in all respects. (iv) Nothing herein shall require the Lessor to use this MLA exclusively with Lessees. Further, this MLA shall not constitute a requirements Agreement and Lessor shall not be obl'Igated to enter into any Schedule far the lease of Products with any Lessee. ACCEPTANCE GATE; SCHEDULE. (a) Subject to any right of return provided by the Product seller ("Seiler") named on the Schedule, Products are deemed to have been irrevocably accepted by Lessee upon delivery #o Lessee's ship to location ("Acceptance Date"}. Lessee shall be solely responsible for unpacking, inspecting and installing the Products. (b) Lessor shall deliver to Lessee a Schedule for Products. Lessee agrees to sign or otherwise authenticate (as defined under the Uniform Commercial Code, "UCC") and return each Schedule by the later of the Accoptance Date or five {5) days a##er Lessee receives a Schedule from Lessor. If the Schedule is not signed or otherwise authenticated by Lessee within the time provided in the prior sentence. then upon written notice from Lessor and 2009-213 of such notice, Lessor may M2009-150 ~y paying the Product cost OG/09/09 charged by the Seller, plus any shipping charges, Taxes or Duties (defined below) and interest at the Overdue Rate accruing from the date the Products are shipped through the date of payment. If Lessee returns any leased Products in accordance with the Seller's return policy, it will notify Lessor. When Lessor receives a credit from the Seller for the returned Product, the Schedule will be deemed amended to reflect the return of the Product and Lessor will adjust its billing records and Lessee's invoice far the applicable Lease. In addition, Lessee and Lessor agree that a signed Schedule may be amended by written notice from Lessor to Lessee provided such notice is (i) to correct the seria! (or service tag) number of Products or {ii) to adjust the related Rent (defined below) on the Schedule (any increase up to 15% or any decrease) caused by any change made by Lessee in Lessee's order with the Seller. 3. TERM The initial term (the "Primary Term") for each Lease shall begin on the date set forth on the Schedule as the Commencement Date (the "Commencement Date"). The period beginning an the Acceptance Date and ending on the last day of the Primary Term, together with any renewals or extensions thereof, is defined as the "Lease Term. The Lease is non- cancelable by Lessee, except as expressly provided in Section 5. RENT; TAXES; PAYMENT dBLIGATIQN. (a) The rental payment amount ("Rent"), and the payment period for each installment of Rent ("Payment Period"} shall be stated in the Schedule. A prorated portion of Rent calculated based on a 30-day month, 90-day quarter or 360-day year (as appropriate) far the period from the Acceptance Date to the Commencement Date shall be added to the first payment of Rent. All Rent and other amoun#s due and payable under this Agreement or any Schedule shall be paid to Lessor in lawful funds of the United States of America at the payment address for Lessor set forth above or at such other address as Lessor may designate in writing from time to time. Whenever Rent and other amounts payable under a Lease are not paid when due, Lessee shalt pay interes# on such amounts at a rate equal to the lesser of 1 % per month or the highest such rate permitted by applicable law ("Overdue Rate"). Rent shall be due and payable whether or not Lessee has received an invoice showing such Rent is due. Late charges and reasonable attorney's fees necessary to recover Rent and o#her amounts owed hereunder are considered an integral part of this Agreement. (b} EACH LEASE SHALL BE A NET LEASE. in addition to Rent, Lessee shall pay sates, use, excise, purchase, property, added value or other taxes, fees, levies or assessments lawfully assessed or levied against Lessor or with respect to the Products and the Lease ("collectively "Taxes"), and customs, duties or surcharges on imports or exports (collectively, "Duties"}, plus ail expenses incurred in connection with Lessor's purchase and Lessee's use of the Products, including but not limited to shipment, delivery, installation, and insurance. Unless Lessee provides Lessor with a tax exemption certificate acceptable to the relevant taxing authority prior to Lessor's payment of such Taxes, Lessee shall pay to Lessor all Taxes and Duties upon demand by Lessor. Lessor may, at its option, invoice Lessee for estimated personal property tax with the Rent Payment. Lessee shall pay all utility and other charges incurred in the use and maintenance of the Products. (c) EXCEPT AS EXPRESSLY PROVIDED IN SECTION 5, LESSEE'S OBLIGATION TO PAY ALL RENT AND OTHER AMOUNTS WHEN DUE AND TO OTHERWISE PERFORM AS REQUIRED UNDER THIS AGREEMENT AND EACH SCHEDULE SHALL BE ABSOLUTE AND UNCONDITIONAL, AND SHALL NOT BE SUBJECT TO ANY ABATEMENT, REDUCTION, SET- OFF, DEFENSE, CDUNTERCLAIM, INTERRUPTION, .DEFERMENT OR RECOUPMENT FOR ANY REASON WWATSOEVER WHETHER ARISING Page 1 of 5 Dell Financial Services OUT DF ANY CLAIMS BY LESSEE AGAINST LESSOR, LESSOR'S ASSIGNS, THE SELLER, OR TFfE SUPPLIER OR MANUFACTURER OF THE PRODUCTS, TOTAL OR PARTIAL LOSS OF TWE PRODUCTS OR TMEIR USE OR POSSESSION, OR OTHERWISE. If any Product is unsatisfactory for any reason, Lessee shall make its claim solely against the Seller of such Product (or the Licensor in the case of Software, as defined below) and shall nevertheless pay Lessor or its assignee aft amounts due and payable under the Lease. 5. APPROPRIATION OF FUNDS. {a) Lessee intends to continue each Schedule for the Primary Term and to pay the Rent and other amounts due thereunder. Lessee reasonably believes that legally available funds in an amount sufficient to pay all Rent during the Primary Term can be obtained and agrees to do all things lawfully within its power to obtain and maintain funds from which the Rent and other amounts due may be paid. (b) Lessee may terminate a Schedule In whole, but not in part by giving at least sixty (60) days notice prior to the end of the then current Fiscal Period (as defned in the Lessee's SecretarylClerk's Certificate provided to Lessor} certifying that: (1) sufficient funds were not appropriated and budgeted by Lessee's governing body ar will not otherwise be available to continue the Lease beyond the current Fiscal Period; and (2} that the Lessee has exhausted all funds legally available for payment of the Rent beyond the current Fiscal Perind. Upon termination of the Schedulo, Lessee's obligations under the Schedule {except those that expressly survive the end of the Lease Term) and any interest in the Products shall cease and Lessee shall surrender the Products in accordance with Section 8. Notwithstanding the foregoing, Lessee agrees that, without creating a pledge, lien or encumbrance upon funds available to Lessee in other than its current Fiscal Period, it will use its best efforts to take all action necessary to avoid termination of a Schedule, including making budget requests for each Fiscal Period during each applicable Loose Term for adequate funds to meet its Lease obligations and to continue the Schedule in force. (c) Lessor and Lessee intend that the obligation of Lessee to pay Rent and other amounts due under a Lease constitutes a current expehse of Lessee and is not to be construed to be a debt in contravention of any applicable constitutional ar statutory limitation on the creation of indebtedness or as a pledge of funds beyond Lessee's current Fiscal Period. 6. LICENSED MATERIALS. Software means any operating system software or computer programs included with the Products (collectively, "Software"). "Licensed Materials" are any manuals and documents, end user license agreements, evidence of licenses, including without limitation, any certificate of authenticity and a€her media provided in connection with such Software, all as delivered with or affixed as a label to the Products. Lessee agrees that this Agreement and any Lease (including the sale of any Product pursuant to any purchase option) does not grant any title or interest in Software or Licensed Materials. Any use of the terms "sell," "purchase," "license," "[ease," and the like in this Agreement or any Schedule with respect to Licensed Materials shall be interpreted in accordance with this Section 6. 7. USE; LOCATION; INSPECTION. Lessee shall {a) comply with all terms and conditions of any Licensed Materials and (b) possess and operate the Products only (i) in accordance with the Setter's supply con#ract and any service provider maintenance and operating manuals, documentation and applicable laws; and (ii) for the business purposes of Lessee. Lessee agrees not tc move Products from the location(s) specified in the Schedule without providing Lessor with at least 30 days prior written notice, and then only to a location within the continental United States and at Lessee's expense. Without notice to Lessor, Lessee may temporarily use laptop computers at other locations, including outside the United States, provided Lessee complies with the United States Export Control Administration Act of 1979 and the Export Administration Act of 1985, as those Acts are amended from time to time (or any successor or similar legislation). Provided Lessor complies with Lessee's reasonable security requirements, Lessee shall allow Lessor to inspect the premises where the Products are located from time to time during reasonable hours after reasonable notice in order to confirm Lessee's compliance with its obligations under this agreement. 8. RETURN. At the expiration or earlier termination of any Schedule, and except far Products purchased pursuant to any purchase option under the Lease, if any, Lessee wilt (a) remove all proprietary data from the Products; and (b) return OIR.UFS Pu611c MLA -Texas ~rR4 Page them to Lessor at a place within the contiguous United States designated by Lessor. Upon return of the Products, Lessee's right to the operating system Software in returned Products will terminate and Lessee wilt return the Products with the original certificate of authenticity (attached and unaltered) far the original operating system Software. Lessee agrees to deinstall and package the Products for return in a manner which will protect them from damage. Lessee shall pay all costs associated with the packaging and return of the Products and shall promptly reimburse Lessor for all costs and expenses far missing or damaged Products ar operating system Software. if Lessee fails to return all of the Products at the expiration of the Lease Term or earlier termination {other than for non-appropriation} in accordance with this Section, the Lease Term with respect to the Products that are not returned shall continue to be renewed as described in the Schedule. 9. RISK OF LOSS; MAINTENANCE; INSURANCE. (a} From the time the Products are delivered to Lessee's ship to location until the Products are returned to Lessor's designated return location or purchased by Lessee, Lessee agrees: {i} to assume the risk of loss or damage to the Products; (li) to maintain the Products in good operating condition and appearance, ordinary wear and tear excepted, {iii) to comply with all requirements necessary to enforce all warranty righ#s; and (iv} to promptly repair any repairable damage to the Products. For the Lease Term, Lessee shall ensure That the Products are covered by a manufacturer approved maintenance agreement or, with Lessor's prior consent, are self-maintained in accordance with the standards set forth herein. At all times, Lessee shall provide the following insurance: {x) casualty foss insurance for the Products for no less than the Stipulated Loss Value (defined below) naming Lessor as a loss payee: (y) liability insurance with respect to the Products for no less than an amount as required by Lessor, with Lessor named as an additional insured; and (z} such other insurance as may be required by law which names Lessee as an insured and Lessor as an additional insured. Upon Lessors prior written consent, Lessee may provide this insurance pursuant to Lessee's existing self insurance pcllcy or as provided for under state law. Lessee shall provide Lessor with either an annual certificate of third party insurance or a written description of i#s self insurance policy or relevant law, as applicable. The certificate of insurance will provide that Lessor shall receive at least ten (10} days prior written notice of any material change to or cancellation of the insurance policy or Lessee's self-insurance program, if previously approved by Lessor. If Lessee dons not give Lessor evidence of insurance in accordance with the standards herein, Lessor has the right, but not the obligation, to obtain such insurance covering Lessor's interest in the Products for the Lease Term, including renewals. If Lessor obtains such insurance, Lessor will adtl a monthly, quarterly or annual charge (as appropriate) to the Rent to reimburse Lessor for the insurance premium and Lessor's then current insurance administrative fee. (b} If the Products are lost, stolen, destroyed, damaged beyond repair or in the event of any condemnation, confiscation, seizure ar expropriation of such Products ("Casualty Products"), Lessee shall promptly (i) notify Lessor of the same and (ii) pay to Lessor the Stipulated Loss Value for the Gasualty Products. The Stipulated Loss Value is an amount equal to the sum of (a) all Rent and other amounts then due and owing (including interest at the Overdue Rate from the due date until payment is received) under the Lease, plus (b) the present value of all future Rent to become due under the Lease during the remainder of the Lease Term, plus (c) the present value of the estimated in place Fair Market Value of the Product at the end of the Primary Term as determined by Lessor; plus (d) all other amounts fc become due and owing during the remaining Lease Term. Unless priced as a tax-exempt Schedule, each of {b) and (c) shall be calculated using the federal funds rate target reported in the Wall Street Journal on the Commencement Date of the applicable Schedule. The disceunt rate applicable to tax-exempt Schedules shall be federal funds rate target reported in the Wall Street Journal on the Commencement Date of the applicable Schedule less 100 basis points. 10. ALTERATIONS. Lessee shall, at its expense, make such alterations to the Products during the Lease Term as are legally required or provided at no charge by Seller. Lessee may make other alterations, additions or improvements to the Products provided that any alteration, addition or improvement shall be readily removable and shall not materially impair the value or utility of the Products. Upon -the return of any Product to Lessor, any alteration, addition or improvement that is not removed by Lessee shall become the property of Lessor free and clear of all liens and encumbrances. 11. IZEPRESENTAT[ONS AND WARRANTIES OF LESSEE. Lessee represents, warrants and covenants to Lessor and wilt provide to Lessor at Lessor's request a[I documents deemed necessary or appropriate by Lessor, including Certificates of Insurance, financial statements, Secretary or of 5 Gterk Certificates, essential use information or documents (such as affidavits, notices and similar instruments in a form satisfactory to Lessor) and Opinions of Counsel (in substantially such form as provided to Lessee by Lessor and otherwise satisfactory to Lessor) to the effect that, as of the time Lessee enters into this Agreement and each Schedule That: (a) Lessee is an entity duly organized and existing under and by virtue of the authorizing statute ar constitutional provisions of its state and is a state or political subdivision thereof as described in Section 103(a) of the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder as in effect and applicable to the Agreement or any Schedule, with full power and authority to enter into Phis Agreement and any Schedules and perform all of its obligations under the Leases; (b) This Agreement and each Schedule have been duly authorized, authenticated and delivered by Lessee by proper action of ifs governing board at a regularly convened meeting and attended by the requisite majority of board members, or by other appropriate official authentication, as applicable, and all requirements have been met and procedures have occurred in order to ensure the validity and enforceability of this Agreement against Lessee; (c) This Agreement and each Schedule constitute the valid, legal and binding obligations of Lessee, enforceable in accordance with their terms; (d) No other approval, consent or withholding of objection is required from any federal, state or local governmental authority or instrumentality with respect to the entering into or performance by Lessee of the Agreement or any Schedule and the transactions contemplated thereby; (e) Lessee has complied with such public bidding requirements and other skate and federal laws as may be applicable to the Agreement and any Schedule and the acquisition by Lessee of the Products; (f) The entering 'snto and performance of the Agreement or any Schedule will not (i) violate any judgment, order, law or regulation applicable to Lessee; (ii) result in any breach of, or. constitute a default under, any instrument to which the Lessee is a party or by which it or its assets may be bound; or (iii) result in the creation of any lien, charge, security interest or other encumbrance upon any assets of the Lessee or on the Products, other than those created pursuant to this Agreement; (g) There are no actions, suits, proceedings, inquiries or investigations, at ]aw or in equity, before or by any court, public board or body, pending or threatened against or affecting Lessee, nor to the best of Lessee's knowledge and belief is there any basis therefor, which if determined adversely to Lessee will have a material adverse effect on the ability of Lessee to fulfill its oblige#ions under the Agreement or any Schedule; (h) The Products are essential to the proper, efficient and economic operation of Lessee or to the services which Lessee provides to its citizens. Lessee expects to make immediate use of the Products, for which it has an immediate need that is neither temporary nor expected to diminish during the applicable Lease Term. The Products will be used for the sole purpose of performing one ar more of Lessee's governmental or proprietary functions consistent within the permissible scope of Lessee's authority; and (i) Lessee has, in accordance with the requirements of law, fully budgeted and appropriated sufficient funds to make all Rent payments and other obligations under this Agreement and any Schedule during the current Fiscal Period, and such funds have not been expended for other purposes. 12. WARRANTY ASSIGNMENT; EXCLU510N OF WARRANTIES; LIMITATIONS ON LIABILITY; FINANCE LEASE. (a) Provided no Event of Default has occurred and is continuing, Lessor assigns to Lessee for the Lease Term the benefit of any Product warranty and right of return provided by any Seller. (b) LESSEE ACKNOWLEDGES THAT LESSOR DID NOT SELECT, MANUFACTURE, SUPPLY OR LICENSE ANY PRODUCT AND THAT LESSEE HAS MADE THE SELECTIQN OF PRODUCTS BASED UPON ITS OWN JUDGMENT AND EXPRESSLY DISCLAIMS ANY RELIANCE ON STATEMENTS MADE BY LESSOR DR ITS AGENTS. LESSOR LEASES THE PRODUCTS AS-f5 AND MAKES NO WARRANTY, EXPRESS, IMPLIED, DR OTHERWISE, INCLUDING, BUT NOT LIMITED T0, ANY WARRANTIES OF DESIGN, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. LESSEE HEREBY WAIVES ANY CLAIM IT MIGHT HAVE AGAINST LESSOR OR ITS ASSIGNEE FOR ANY LOSS, DAMAGE OR EXPENSE CAUSED 8Y OR WITH RESPECT TD ANY PRODUCTS. {c) IN NO EVENT SHALL LESSOR BE LIABLE FOR ANY ACTUAL, ~IR.I7F5 Pudllc t1El.A -Texas DfR9 Page SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARIS[NG OUT OF OR RELATED TO THIS AGREEMENT, ANY SCHEDULE OR THE SALE, LEASE OR USE OF ANY PRODUCTS EVEN IF LESSOR IS ADVISED IN ADVANCE OF THE POSSIBILITY OR CERTAINTY OF SUCH DAMAGES AND EVEN IF LESSEE ASSERTS OR ESTABLISHES A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED IN THIS AGREEMENT. (d) Lessee agrees that it is the intent of both parties that each lease qualify as a statutory finance lease under Article 2A of the UCC. Lessee acknowledges either {i) that Lessee has reviewed and approved any written supply contract covering the Products purchased from the Seller for lease to Lessee or (ii) that Lessor has informed or advised Lessee, in writing, either previously or by this Agroement, that Lessee may have rights under the supply contract evidencing the purchase of the Products and that Lessee should contact the Seller for a description of any such rights. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, LESSEE HEREBY WAIVES ALL RIGHTS AND REMEDIES CONFERRED UPON A LESSEE BY ARTICLE 2A OF THE UCC. 13. EVENTS OF DEFAULT. It shall be an event of default hereunder and under any Schedule ("Event of Default"} if: {a) Lessee fails io pay any Rent or other amounts payable under this Agreement or any Schedule within 15 days after the date such payment is due; (b) Any representation ar warranty made by Lessee to Lessor in connection with this Agreement, any Schedule or any other Documents is at the time made materially untrue or incorrect; (c) Lessee fails to comply with any other obligation or provision of this Agreement or any Schedule and such failure shall have continued for 30 days after notice from Lessor; ' {d) Lessee (i) is generally not paying its debts as they become due or (ii) takes action for the purpose of invoking the protection of any bankruptcy or insolvency law, or any such law is invoked against or with respect to Lessee or its property and such petition is not dismissed within 60 days; {e) Any provision of this Agreement ceases to be valid and binding on Lessee, is declared nul3 and void, or its validity or enforceability is contested by Lessee or any governmental agency or authority whereby the loss of such provision would materially adversely affect the rights or security of Lessor, ar Lessee denies any further liability or obligation under this Agreement; or (#1 Lessee is in default under any other lease, contract, or obligation now existing or hereafter entered into with Lessor or Seller or any assignee of Lessor. 14. REMEDIES; TERMINATION. (a) Upon an Event of Default under any Schedule, all of Lessee's rights (including its rights to the Products), but not its obligations thereunder, shall au#omatically be canceled without notice and Lessor may exercise one or more of the following remedies in its sole discretion: (i) require Lessee to return any and all such Products in accordance with Section 8, or if requested by Lessor, to assemble the Products in a single location designated by Lessor and to grant Lessor the right to enter the premises where such Products are located (regardless of where assembled) for the purpose of repossession; (ii) sell, (ease or othenxise dispose of any or all Products (as agent and attorney-in-fact far Lessee to the extent necessary) upon such terms and in such manner (at public or private safe) as Lessor deems advisable in its sole discretion ("^isposilion"); (iii) declare immediately due and payable as apre-estimate of liquidated damages for loss of bargain and not as a penalty, the Stipulated Lass Value of the Products in lieu of any further Rent, in which event Lessee shall pay such amount to Lessor within 14 days after the date of Lessor's demand; or (iv) proceed by appropriate court action either at law or in equity (including action for specific performance} to enforce the pertormance by Lessee or recover damages associated with such Event of Default or exercise any other remedy available to lessor in law or in equity. (b) Lessee shall pay all costs and expenses arising or incurred by Lessor, including reasonable attorney fees, in connection with or related to an Event of ^efault or the repossession, transportation, re-furbishing, storage and Disposition of any or all Products ("Default Expenses"). In the event Lessor recovers proceeds (net of Default Expenses) from its Disposition of the . 3 of 5 Products, Lessor shall credit such proceeds against the owed Stipulatod Loss Value. Lessee shall remain liable to Lessor for any deficiency. With respect to this Section, to the extent the proceeds of the Disposition (net of Default Expenses) exceed the Stipulated Loss Value owed under the Lease, ar Lessee has paid Lessor the Stipulated Loss Value, the Default Expenses and all other amounts owing under the Lease, Lessee shall be entitled to such excess and shall have no further obligations with respect to such Lease. All rights of Lessor are cumulative and not alternative and may be exercised by Lessor separa#ely ar #ogether. 15. QUIET ENJOYMENT. Lessor shall not interfere with Lessee's right to possession and quiet enjoyment of Products during the relevant Lease Term, provided no Event of Default has occurred or is continuing. Lessor represents and warrants that as of the Commencement Date of the applicable Schedule, Lessor has the right to lease the Products to Lessee. 16. INDEMNIFIGATION. To the extent permitted by law, Lessee shall indemnify, defend and hold Lessor, its assignees, and their respective officers, directors, employees, representatives and agents harmless from and against, all claims, liabilities, casts ar expenses, including legal fees and expenses (collectively, "Claims"), arising from or incurred in connection with this Agreement, any Schedule, or the selection, manufacture, possession, ownership, use, condition, or return of any Products {including Claims for personal injury or death or damage to property, and to the extent Lessee is responsible, Claims related to the subsequent use or Disposition of the Products or any data in or alteration of the Products. This indemnity shall not extend to any loss caused solely by the gross negligence or wi3lfui misconduct of Lessor. Lessee shall be responsible for the defense and resolution of such Claim at its expense and shalE pay any amount far resolution and all vests and damages awarded against or incurred by Lessor or any other person indemnified hereunder; provided, however, that any person indemnified hereunder shall have the right to participate in the defense of such Claim with counsel of its choice and at its expense and to approve any such resolution. Lessee shall keep Lessor informed at all times as to the status of the Claim. 17. OWNERSHIP; LIENS AND ENCUMBRANCES; LABELS. As between Lessor and Lessee, title to the Products (other than the Licensed Materials} is and shaft remain with Lessor. Products are considered personal property and Lessee shall, at Lessee's expense, keep the Products free and clear of liens and encumbrances of any kind (except those arising through the acts of Lessor) and shall immediately notify Lessor if Lessors interest is subject to compromise. Lessee shall not remove, cover, or alter plates, labels, or other markings upon Products by Lessor, Seller or any other supplier. 18. NON-PERFORMANCE BY LESSEE. If Lessee shall fail to perform any of its obligations hereunder or under any Schedule, Lessor shall have the right but not the obligation to effect such performance and Lessee shall promptly reimburse Lessor for all out of packet and other reasonable expenses incurred in connection with such pertormance, with interest at tho Overdue Rate. 19. NOTICES. All notices shall be given in writing and, except for billings and communications in the ordinary course of business, shall be delivered by overnight courier service, delivered personally or sent by certified mail, return receipt requested, and shall be effective on the date of receip# unless mailed, in which case the effective date will be four (4} Business days after the date of mailing. Notices to Lessor by Lessee shall be sent to: Dell Financial Services L.P., Legal Department, One Dell Way, Round Rock, TX 78682, or such other mailing address designated in writing by Lessor. Notice to Lessee shall be to the address on the first page of this Agreement or such other mailing address designated in writing by Lessee. 20. ASSIGNMENT. {a) LESSEE MAY ASSIGN THIS AGREEMENT OR ANY SCHEDULE, OR SUBLEASE ANY PRODUCTS} WITH THE PRIOR WRITTEN CONSENT OF LESSOR (SUCH CONSENT NOT TO BE UNREASONABLY WITHHELD). LESSOR, AT ITS SOLE DISCRETION, MAY ASSESS AN ADMINISTRATIVE FEE FOR ANY APPROVED ASSIGNMENT OR SUBLEASE. No assignment or sublease shalt in any way discharge Lessee's obligations to Lessor under this Agreement or Schedule. (b) Lessor may at any time without notice to Lessee, but subject to the rights of Lessee, transfer, assignor grant a security interest in any Product, this DIR.DFS Puhlle MLA --Texas DIR9 Page Agreement, any Schedule, or any rights and obligations hereunder or thereunder in whole or in part. Lessee hereby consents to such assignments, agrees to comply fully with the terms thereof, and agrees to execute and deliver promptly such acknowledgments, opinions of counsel and other instruments reasonably requested to effect such assignment. {c) Subject to the foregoing, this Agreement and each Schedule shall be binding upon and inure to the beneft of Lessor, Lessee and their successors and assigns. 21. GOVERNING LAW; JURISDICTION AND VENUE; WAIVER OF JURY TRIAL. THIS AGREEMENT AND EACH SCHEiULE SHALL 8E GOVERNED BY TEXAS LAW WITHOUT REGARD TO ITS CONFLICTS OF LAW PRINCIPLES AND, Tp THE EXTENT APPLICABLE, THE ELECTRONIC SIGNATURES IN GLOBAI. AND NATIONAL COMMERCE ACT. LESSEE CONSENTS TO THE JURISDICTION OF ANY FEDERAL COURT LOCATED IN NUECES COUNTY, TEXAS AND WAIVES ANY OBJECTION TO VENUE IN SUCH COURT, AND FURTHER WAIVES ANY RIGHT TO A TRIAL BY JURY. 22. MISCELLANEOUS . (a) The headings used in this Agreement are for convenience only and shall have no legal effect. This Agreement shall be interpreted without any strict construction in favor of or against either party. (b) The provisions of Sections 6, 8, 11, 12(b), 12(c), 12(d}, 16, 21 and 22 shall continue in full force and effect even after the termination or expiration of this Agreement or any Schedule. (c} Failure of Lessor at any time to require Lessee's pertormance of any obligation shall not affect the right to require performance of that obligation. No term, condition or provision of this agreement or any Schedule shall be waived or deemed to have been waived by Lessor unless it is in writing and signed by a duly authorized representative of Lessor. A valid waiver is limited to the specific situation for which it was given. (d) Lessee shall furnish such financial statements of Lessee (prepared in accordance with generally accepted accounting principles) and other information as Lessor may from time to time reasonably reques#. (e) If any provisions} of this agreement is deemed invalid or unenforceable to any extent (other than provisions going to the essence of this Agreement) the same shall not in any respect affect the validity, legality or enforceability (to the fullest extent permitted by law) of the remainder of this Agreement and the parties shall use #heir best efforts to replace such illegal, invalid or unenforceable provision with an enforceable provision approximating, to the extent possible, the original intent of the parties. (f) Unless otherwise provided, all obligations hereunder shall be performed or observed at the respective party's expense. (g} Lessee shall take any action reasonably requested by Lessor for the purpose of fully effectuating the intenk and purposes of this Agreement or any Schedule. If any Lease is determined to be other than a true lease, Lessee hereby'grants to Lessor a first priority security interest in the Products and all proceeds thereof, Lessee acknowledges that by signing this Agreement, Lessee has authorized Lessor to frle any frnancing statements or related filings as Lessor may reasonably deem necessary or appropriate. Lessor may file a copy of this Agreement or any Schedule in lieu of a financing statement. (h) This Agreement and any Schedule may be signed in any number of counterparts each of which when so executed or otherwise authenticated and delivered shall be an original but all counterparts shall together constitute one and the same instrument. To the extent each Schedule would constitute chattel paper as that term is defined in the UCC, no security 'Interest may be created through the transfer or control or possession, as applicable, of a counterpart of a Schedule other than the original in Lessor's possession marked by Lessor as either "original" or "Counterpart Number 9 ". (i) This Agreement and the Schedules hereto between Lessor and Lessee set forth all of the understandings and agreements between the parties and supersede and merge atl prior written or oral communications, understandings, or agreements between the part'ses relating to the subject matter contained herein. Except as permitted herein, this Agreement and any Schedule may be amended only by a writing duEy signed or otherwise authenticated by Lessor and Lessee. EXECUTED by the undersigned on the dates set forth below, #o be effective as of the Effective Date. 4pf5 C{ty of Corpus Christi, Texas "Lessee' !~ / ! ~ . C C0' ~- NAME: riTLE: Cr ~ ~G~. DELL FINANCI ~ SERVICES L.L.C. "Lessor=' BY: NAME: a~o~_ ~~~ ~uT~~~z~~ •.. ~(.~t ++nn I~~ Approved as to form: ~~` ~ ~ ~~~ Lisa Aguilar Assistant City Attorney Far City Attorney piR,~FS ;'u611c MLA -Texas OIR9 Page 5 Of 5 ''Financial Services SecretarylClerk Certificate Instructions In the blocks under paragraph (ii) with the headings "NAME OF AUTHORIZED SIGNATORY", "TITLE OF AUTHORIZED SIGNATORY" and "SIGNATURE OF AUTHORIZED SIGNATORY", all persons who are authorized to execute and deliver the Master Lease Agreement and any related Lease Schedule(s) from time to time thereunder between the Public Entity and Defl Financial Services L.L.C. should write or type hislher name under the "Name of Authorized Signatory" heading, write or type hislher title under the "Title of Authorized Signatory" heading, and sign hislher name under the "Signature of Authorized Signatory" heading in the. black across from hislher name and title. The person{s) listed and executing in the blocks under paragraph {ii) must not be the same person executing the Certificate on behalf of the Public Entity (Clerk, Secretary, etc.) listed at the top of the. Certificate and executing in the signature block at the bottom of the Certificate under the "In Witness Whereof" language; 2. The Clerk, Secretary, etc. should insert the Master Lease Agreement No. in paragraph {iii), if known; 3. The Clerk, Secretary, etc. should strike paragraph (v) of the Certificate if this paragraph is not applicable to the Public Entity; 4. If paragraph (v) of the Certificate is applicable to the Public Entity, the Clerk, Secretary, etc. should insert "regular" or "special" in the first blank and then insert the date of the meeting of the governing body of the Public Entity in the second blank; 5. The Clerk, Secretary, etc. should write or type the Fiscal Period of the Public Entity in paragraph (ix); 6. The Clerk, Secretary, etc. should write or type hislher name, title, name and State of the Public Entity in the #op portion of the Certificate and date, sign & print hislher name and title at the bottom of the Certificate under the "In Witness Whereof' language; and 7. If required by local law, the Certificate should be notarized by a notary public. The notary public should be a person other than the Clerk, Secretary, etc. executing under the "In Witness Whereof' language of the Certificate. DFS Pu61ic Seerelary-Clerk Ce>Yilicale &stnmtions.012208 SECRETARYICf,ERK CERTIFICATE 1, Armando Chapa, do hereby certify that: (i) I am the duly qualified, and acting City Secretary (Clerk, Secretary, etc.} of the City of Carpus Christi, a Texas home rule municipality, (the "Public Entity"). (ii) Each of the persons whose name, title and signature appear below is a duly authorized representative of the Public Entity and holds on the date of this Certificate the formal title set forth opposite his/her name and the signature appearing opposite each such person's name is his/her genuine signature: NAME OF AUTHORIZED SIGNATORY TITLE OF AUTHORIZED SIGNATORY SIGNATURE OF AUTHORIZED r- SIGNATORY 'An el R. Escobar Michae! Barrera Gabriel Maldonado Michael Armstrong John S less Daisy Humada Gabriel Cuellar Cit Mana er Materials Management ~~ Director Senior Bu_ e~ MI5 Director, CIO Business Unit Mana er Team Leader Technical S ecialist Clarence Cartwright Technical Specialist (iii) Each such representative is duly auth rl ed for and on behalf of the Public Entity to execute and deliver that certain Master Lease Agreement No. .a~`r~l (the "Agreement"} and any related Lease Schedules from time to time thereunder (the "Schedules"} between the Public Entity and dell Financial Services L.L.C., a Delaware limited liability company or its assignee (collectively, "Lessor"), and all agreements, documents, and instruments in connection therewith, including wi#hout limitation, schedules, riders and certificates of acceptance. {iv) The execution and delivery of any such Agreement andlor Schedule and all agreements, documents, and instruments in connection therewith for and on behalf of the Public Entity are not prohibited by or in any manner restricted by the terms of the Charter or other document pursuant to which it is organized or of any Loan agreement, indenture or contract to which the Public Entity is a party or by which it or any of its property is bound. (v) (STi~IICE IE' NAT APPLICABLE] The Public Entity did, at a duly called regular (regular or special) meeting of the governing body of the Public Entity attended throughout by the requisite majority of the members thereof held on June 9, 2009, by motion duly made, seconded and carried, in accordance with ail requirements of law, approve and authorize the execution and delivery of the Agreement, the related Schedule(s) and a!l agreements, documents, and instruments in connection therewith on its behalf by the authorized representative(s) ofi the Public Entity named in paragraph (ii) above. Such action approving. the Agreement, the related Schedules} and all agreements, documen#s, and instruments in connection therewith and authorizing the execution thereof has not been altered or rescinded by the Public Entity. (vi) No event or condition that constitutes, or with the giving of notice or the lapse of time or both would constitute, an Event of Default (as such term is defined in the Agreement) exists at the dale hereofi. (vii) A!I insurance required in accordance with the Agreement is currently maintained by the Public Entity. DFS LLC Public Secretary-Clerk Cartificate.0601 OB ` (viii) The Public Entity has, in accordance wi#h the rectuirements of law, fully budgeted and appropriated sufficient funds for the current budget year to make the Rent payments scheduled to come due during the first Fiscal Period and #o meet its other obligations for the first Fiscal Period {as such terms are defined in the Agreement) and such funds have not been expended for other purposes. (ix) The Fisca! Period of the Public Entity is-from August 1 to July 31 of the following year. (x} The foregoing authority and information shah remain true and in full force and effect, and Lessor shall be entitled to rely upon same, until written notice of the modifica#ion, rescission, or revoca#ion of same, in whole or in part, has been delivered to Lessor, but in any event, shall be effective with respect to any documents executed or actions taken in reliance upon the foregoing authority prior to the delivery to Lessor of said written no#ice of said modification, rescission or revocation. IN WITNESS WHEREOF, I have hereunto set my hand this d day of _~~ 2p0~ By: Name: Armando Chapa Title: City Secretary ~[ Subscribed to and sworn before me this~day of ~ , 200 Notary Public: ~ 1*, Naiary Public My commission expires ~~ ~;~ STATE F TE)(A5 ~~,,'ear~~"°` ~Y Camm, Exp, OS-OP-2012 Apprc~ed by: r r,.^1 'A el .Escobar y Manager Approveed as to farm on June 16, 2009 By: r7~,~L+yt ~? Lisa Aguilar, Assis ant City Attorney DFS LLC PuSlic Secretary-Clark CertiPicate.060108 BELLING-AND LEASE SCHEDEJLE INFORMATION L ~~~~~~~~ ~~~~~~~~ (THIS FORM MUST BE COMPLETED BYTHE INDIVIDUAL SIGNING THE DOCUMENTS AND A MEMBER OF YOUR ACCOUNTS PAYABLE TEAM} ~ ! . INVOICINGBILLING: 1 Will your accounts payable be for: 1, ~ 1 Central Location r 1 for each Dept, Campus, Agency (need address for each} ~ Customer's accounts payable address for invoices Company Name: City of Corpus Christi, Texas City of Corpus Christi '~, (as filed with your Secretary of State) PO BOX 9277 Address: Corpus:Christi, Texas 78469 City, State, Zip: ~ Nueces County: Gabriel Cuellar Attention: 361-826-3835 Telephone Number: 361-826-3047 Fax: Number: gabl7elc@cctexas.cam E-Mail Address: Is a Purchase Order # required on the invoice? ~ Yes ~ No TAX: Where required, SaleslUse Tax will be assessed and invoiced.~v Does. the Customer hold a valid exemption or direct pay certificate? %~ Yes ~ No If yes, please ATTACH a copy of the certificate for each state to this document. {NOTE: A certificate must be provided far each slate in which leased Products are located.) UCC Information Required: Federal Tax ID#: 74-6000574 Type Of Organization: Municipality State Of Organization: TEXAS State ID#: NA How will your Purchase Orders. be placed? WEII one Purchase Order cover: r 1 Order Release ~ Multiple Order Releases ~ Blanket Purchase Order ~ 1 Ship to Address ~ Multiple Ship. To Locations ~ 1 Group Only ~ Multiple Groups (Deets, Campuses, Agencies) Billing Info PuiulicvOB012001 Entire Lease Term ~ Specific Periods - Expl Please Describe your Requirements? Will Shipping be: ~ Financed ~ Billed Separately ~ No charge by Dell 1 Can you have: ~ More than one PO#Ilnvoice r Only 1 PO#/Invoice ~ Can your PO be: ~ Split between 2 or more invoices r Must be fulfilled in 1 Invoice Wiil you lease: Dell Equipment only ~ Other Vendor(s) Equipment j Please Describe your Organizational Structure: r Commerciai ~ PubliclMunicipal ~ Other-Explain ~ 1 Group Only ~ Multiple Groups (Deets, Campuses, Agencies} p~ 1 Accounts Payable ~ Multiple Accounts Payable (1 per Dept, Campus, Agency) !` Lease Schedules will be reviewed by one person r Requires multiple step approval process Commencement is: 1st of following month Interim Rent is: ~ Charged Property Tax is: Acceptance r Other -Explain _ ~ Not charged ~' Rebilled Annually Fiscal Year is from August 1 st to July 31st. Notations: ~ Other -Explain ~ Other - Expiain 11. PREPARING CUSTOMER'S A/P SYSTEM TO REMIT PAYMENTS TO DPS: Below is information commonly requested by customers in order to assist them in setting up their accounts payable system to pay DF'S: Payee Name and Address: DF5 Acceptance P.O. Box 99355 Billing Info Publicv08012001 Chicago, IL 60693 DF5's Federal Tax ID # is: 74-2825828 What information will you require in order to set up payments to DFS as a recurring payable? W9 1!!. PAYMENT METHODS fo DFS VIA CHECK MaII To: DFS Accepkance P.O. Box 99355 Chicago, IL 60693 VIA WIRE TRANSFER Please reference all information listed below to ensure proper credit each time a wire transfer is made: Payable to: Dell Financial Services L.L.C. ABA #: 026009593 Account #: 81882-04944 Contract: Schedule #: DF5 Invoice #: VIA A CH Payable to: Dell Financial Se rvices L.L.C. ABA #: 1211-0825-0 Account #: 818$2-04944 Contract: Schedule #: DFS Invoice #: !V. LEASE SCHEDULES: Please refer to fhe Lease Schedule Sample attached. Name of recipient(s) to receive monthly Lease Schedules to reconcile: Attention: Gabriel Cuellar Address: PO BOX 9277 City, State Zip: Corpus Christi, Tx 78469 Phone & FAX Numbers: Phone 361-826-3835, Fax 361-828-3047 E-mail address: gabrielc@cctexas.com Name of individual(s) to sign monthly Lease Schedules (this individual should be named as an authorized signatory on the Secretary/Clerk Certificate}: Billing Info Public~08012001 Attention: Gabriel Cuellar Address: PO BOX 9277 City, State Zip: Corpus Christi, Tx 78469 Phone & FAX Numbers: Phone 361-826-3835, Fax 361-826-3047 E-mail address: gabrielc@cctexas V. LEASED ASSET REPORT Please refer to fhe aftached Lease Assef Report Sample. Will you require a Leased Asset Report? ~ Yes ~ No If yes, haw frequent? ~ Monthly r Quarterly ~ Annually ~ Other Attention: Address: City, State Zip: Telephone Number: Fax Number:. E-mail address: Gabriel Cuellar PO BOX 9277 Corpus Christi, Texas 78469 361-826-3835 361-826-3047 gabrielc@cctexas.com Would you prefer to have your Leased Asset Report posted to your Premiere Page? ~ Yes r No Login: gabrielc@cc#exas.com Address: http:llpremier.dell.comlportalls#andardconfig.aspx?~ck=mn&c=US&1=en&s=slg&cs=RC971944 PLEASE ADVISE LESSOR AT THE ADDRESS LISTED BELOW OF CHANGES IN THE INFORMATION PROVIDED ABOVE. Please return this document along with ail other required documents to: DELL FINANCIAL SERVICES L.L.C, Public Segment Lease Administration 12234 N iH 35 Austin TX 7$753 Attn: Aga Hernandez Completed By: Lessee: s ocum n# Signatory ssee Accou is P yabl Representative By. Name: John Spiess abriel Cuellar Title: Business Uni# Manager Technical Specialist Date: 11 June 2009 11 June 2DD9 Billing Info Puhlicv08012Q01 TEXAS SALE5 TAX EMEMPTION CERTIFICATE . Name or purchaser, firm or aeenev _ City of Corpus Christi _ '. Address l.Street & number. P. 0. Box or Route number) ~ Phone i Area code and number- P. O. Boa 92'17^.T. T (361} 880-3160 ,~ ,_,.._._. City. State. Zip Code Cor us Christi. Tezas 78469 I, the purchaser named above. claim an exemption from payment of sales taxes for the purchase of taxable items described below or on the attached order or invoice from: Seller: Street address: Description of items to be purchased. or on the attached order or invoice: :-ALL 5AL S BETWEEN: CITY Op' CORPUS CHRiSTi .3.ND: Purchaser claims this exemption for the following reason: MUNICIPAL GOVERNMENT 74-6000574 City, State. Zip Code: Purchaser Sign Here - ,J I understand that I will be Iiable for payment of sales tax which may become due for failure to comply with the provisions of the state. city, metropolitan transit authority. cin transit department and/or counn~ sales and use tax laws and Comptroller rules regarding exempt purchases. inability for the tax will be determined by the price paid far the taxable items purchased or the fair market rental value for the period of time used. C understand that it is a misdemeanor to give an exemption certificate to the seller for taxable item which 1 know, at the time of purchase, will be used in an manner other than that expressed in this certificate and that upon conviction may be tined not more than $SQO per offense. Title Date ~, Materials Management MOTE: This certificate cannot be issued for the purchase. lease or rental of a motor ~-ehicle. THIS CERTIFICATE DOES NOT REQUIRE A NUMBER TO BE VALID Sales and Use Tax "Exemption Numbers" or "Tax Exempt" '.~lurni~ers do not exist. This certificate should be furnished to the supplier. Do not send the completed cerrificate to the Compaoller of Public .'~CC.oL1nLS. SELF-INSURANCE QUESTIONNAIRE 1. Does the Lessee intend to self-insure for: a. damage or destruction to the Products? Yes __ No ___'~____ b. liability for injury {including death) to persons? Yes ~ No 2. What are the limits (in dollars) of they. iabili#y th Le ~~ proposer~ss. to as ume for ~~~ ~ ~,~..~ ~,.~, ~ ~L,(~, r~~ claims under question (1) above? ~,~ ~ . .~lc.~us ~G~~ ~~~,~ (%'~~' ~, ~ ~ ~) . ~~J ~.. ftL~ CrL ` 3. Does the Lessee maintain an umbrella insurance,galicy for claims in excels ~~ Lesses self-11V~dd insurance limits under question (2) above? Yes ~__ _ __ No _ ~. If yes, a. Does the umbrella policy provide all-risk property damage coverage and coverage for ~ r liability for injuries, including death, to persons? Yes ~ No ~=_t~-r~c~~~.~:~ .l~,~r.~~~ b. .What the ~umbre poGc 's limits fcu such property damage and liability coverage? Q. 1 wha.~~... sourc oes t e L ssee o Main funds Ito ay ,its self-insured liabilities? .~~~~~l-!~ ~rff~ x"71 d~c~ eN~~~.,2-~y.~ a. Does the Lessee maintain aself-insurance fund? Yes ~ No _________,_ If yes, Are the monies in this fund subject to annual appropriations? Yes 1~_____....... No ii. What total amount is maintained in the fund to cover the Lessee's self-insurance liabilities? iii, Are amo is paid from the fund subject tv limitations per each claim? Yes _ _ No iv. If the Lessee does not maintain an umbrella policy, are claims limited only to amounts available in the fund,S'or may a claimant pursue other avenues of relief against the Lessee? Yes •~i __ No v. Who or what is the d sic aking a thvri y,.~f. r payme aims sib ittlgd against the Lessee? ~ ~. ~~'z~~ f.G~~s'y .~' (,yc. p~~~~ vi. If a claimant receives an adverse decision from the entity described in question 4(a)(v) above, does the claimant have recourse to the courts or to another administrative agency (i.e. who/what is the authority of last resort for paying a claim 1,t ,against. 1~the ~ Lessee's self-insurance liability}? b. If the Lessee does not maintain aself-insurance fund, from what source(s) dues the Lessee obtain ~r~fr~ls to pay claims against its self-insured liability? What are the limitations arr~~,,d amounts. payable for claims against these funding sources? +°'~~t ii. WholWhat is the entity authorizing yment from a claim against the Lessee's self-insurance liability? _ __ ,~ iii. WholWhat is the authority of last rss rt.for paying a claim against the Lessee's self-insurance IiabiGty? ~ I/~ ' DFS public [neurenco letsers & questionnaire.012208 June 18, 2009 ~v~~~ ~~s®u~cEs PO Box 9277 Corpas Christi Texas 78469-9277 Phone 361-826-3300 Fax 361-826-3322 Health Benefits Fax 361-844-1730 Risk Maraagenaerat Phone 36i-826-3680 Fax 361-826-3697 www.cctexas.com ~It-A~ne~icaeic~ Dell Financial Services, L. L. C. Attention: Lease Administration Manager One Dell Way, Building P35B Round Rock, Texas 78682 Re: Master Lease Agreement #:6458214, Effective March 25, 2409 To Whom It May Concern: The City of Corpus Christi is a self insured public entity as allowed by the State of Texas for General Liability, Auto Liability, and Workers' Compensation. Liability limits are established by the Texas Tort Claims Act. The City of Corpus Christi's liability under the Act is limited. Under the Act, liability in cases of personal injuries or death is limited to a maximum amount of $250,000 per person and $500,000 for each single occurrence. . The Risk Liability Fund is funded by the City of Corpus Christi in accordance with generally accepted accounting practices through actuarially calculated annual contributions. Information regarding filing a claim with the City of Corpus Christi can be obtained from the Risk Management office at City Hall, 1201 Leopard Street, Corpus Christi, Texas 78401, or by phone at (361) 826-3300. Sincerely, i ~y7~_c~Yt~~ Dorlna James-Spruce Safety & Risk Manager DJS/vlt June 16, 2009 PO Box 9277 Corpus Christi Texas 78469-9277 Phone 361-880-3360 Fax 361-880-3239 Mauzic'ipal Cnt[L't Prosecutor's Office 120 N. ChapaLZa] Corpus Christi Texas 78401. Phone 361-886-2530 Fax 361-8$6-2567 Jacwenale Court Pmsecutor's Of,~ice 226 Enterprise Pkwy Suite 103 CO1'plls C13L75C1 Texas 78405 Phone 361-826-4014 Fax 361-826-4309 Police Legcrl Advisor 32] John SaL'tain corpus chL~sa Texas 78401 Phone 361-886-2608 Fax 36[-886-2634 www.cctexas.caLm lily-Ame~lca Cibi t Dell Financial Services L.L.C. 12234 N. IH 35 Austin, TX 78753-1705 Ladies and Gentlemen: We are legal counsel to City of Corpus Christi, Texas (the "Lessee") and in that capacity we have examined Master Lease Agreement No. 6458214, dates as of March 25, 2009 and Lease Schedule No. (number not applicable as per Dell Financial Services) to Master Lease Agreement No. 6458214 thereto, dates as of March 25, 2009. (collectively the "Agreement"), between the Lessee and Dell Financial Services L.L.C. {the "Lessor"}. Based on our examination of the Agreement and such other examinations as we have deemed appropriate, we are of the opinion as follows: {a) The Lessee is an entity duly organized and existing- under and by virtue of the authorizing statute or constitutional provisions of the State of Texas and is a state or political subdivision thereof as described in Section 103(a) of the Internal Revenue Code of 1986, as amended, with full power and authority to enter into the Agreement and the Transactions contemplated thereby and to perform all ofi its obligations thereunder; (b} The Agreement has been duly authorized, executed and delivered by City Manager of the Lessee, who is an Authorized Signatory of Lessee under the Agreement, by proper action of its governing board at a meeting duly tailed, regularly convened and attended throughout by the requisite majority of the members thereof or by other appropriate official approval, and all requirements have been met and procedures have occurred in order to ensure the validity and enforceability of the Agreement against the Lessee; {c) The Agreement constitutes the valid, legal and binding obligation of the Lessee, enforceable in accordance with its terms; (d) No approval, consent or withholding of objection is required from any federal, state or local governmental authority or instrumentality with respect to the entering into or performance by the Lessee of the Agreement and the transactions contemplated thereby; (e) Lessee has complied with any applicable public bidding requirements and other applicable state and federal laws in connection with the Agreement and the transactions contemplated thereby; (~ The entering into -and performance of the Agreement will not violate any judgment, order, law or regulation applicable to the Lessee or result in any breach of, or constitute a default under, any instrument to which the Lessee is a party or by which it or its assets may be bound, or result in the creation of any lien, charge, security interest or other encumbrance upon any assets of the Lessee or on the Products, other than those created by the Agreement; (g) The Products are tangible personal property and when subject to use by the Lessee wiH not be or become fixtures or real property under the laws of the State of Texas; (h) There are no actions, suits, proceedings, inquiries or investigations, at law or in equity, before or by any court, public board or body, pending or threatened against or affecting, nor to the best of our knowledge and belief is there any basis therefore, which, if determined adversely to Lessee, will have a material adverse effect on the ability of the Lessee to fulfill its obligations under the Agreement; and (i) Lessee has, in accordance with the requirements of law, fully budgeted and appropriated sufficient funds for Lessee's current fiscal Period to make the Rent payments scheduled to come due during Lessee's current Fiscal Period and to mee# its other obligations under the Agreement for the current Fiscal Period, and such funds have not been expended for other purposes. This opinion is delivered to the addressee for its benefit and the benefit of its assigns for the purpose contemplated by the Agreement Very truly yours, Lisa A uila~ g Assistant City Attorney A Financial Services City of Corpus Christi, Texas TRt3E LEASE SCHEDULE NO. XXX-6458214-XXX TO MASTER LEASE AGREEMENT NO. 645$214 THIS SCHEDULE IS SUB.iECT TO AND INCORPORATES THE TERMS AND CONDITIONS OF MASTER LEASE AGREEMENT NO. 6458214 ("Agreement") DATED March 25, 2009 BETWEEN DELL FINANCIAi_ SERVICES L.L.C. ("Lessor"} AND Cit of Car us Christi, Texas "Lessee" AND 15 PURSUANT TO DIR CONTRACT NO. DIR-SDD-890. Lessor hereby agrees fo lease andlor make available to Lessee subjec# to the terms, conditions and provisions set forth in this Schedule and in fhe Agreement, the Products described below. Any capitalized term used herein and not defined herein shall have the meanin ascribed to it in the A reement. PRODUCT DESCRIPTION AND LOCATION: See below or Exhibit "A" attached to and made a part hereof. PRODUCT SELLER: DeiE Inc., One Deli Wa ,Round Rock, TX 78682] Product Description Product Location Lessee Purchase Rent* Prima___ r~„Term Mos. Commencement Date*** Order No. Total Product Acquisition Cost RPnt~is payable: R~arJvance; ~,in arrears (specify] Pnym~.nt Period: ~[Jlnnthly Quarterl,d Annually Other (specffyl - lessee is responsii~;e i r ~F,pli~:€,ble taxes shipF~ing, and cth ~ an~oui~ts as d ~r.ribcci in Elie ,vgreement, anti, ~r~ith the first payment of Rent, ~rry prorated Rent, if apFli ~~'adc. Such amcunta are fin~ther des ribe~;i m ~ :hi%~it ".A'". " Try' Co'n~meacemFr~fl7~fe mar r~ ~xtcnd~~i fc~r one p~~~;~m?nt Period uniil the Schedule is returned in aerordenc~ ;vith t!~,e terms st~~te~ in the Ag~e~^ient Lessormay chard LessoN prorated ~'a~nt accruing f~~ r~the h+ Loptance !]ate to the Comrr~eF~cerr~er~t Date, as such date is #inallydeterminFd TRIFI* LASE PROVISIONS The fallowing provisions shall apply to #his Schedule in addition to the provisions in the Agreement: 1. TRUE LEASE: The parties intend for this lease to constitute a true lease of Products under the UCC and all applicable laws. If this Lease is determined to be a lease intended as security, in no event shall Lessee be obligated to pay any time price balance differential in excess of the maximum amount permitted by applicable law (as specified herein or the state where the Products are located, whichever law permits the greater amount). In the event Lessor shall receive anything of value under a Lease that is deemed interest which would exceed the maximum amount of interest allowed under the law, the excess amount shall be applied to the reduction of the unpaid time price balance or shall be refunded to Lessee. In order to reduce the unpaid time price balance, any amount deemed interest shall, to the fullest extent permitted by applicable ]aw, be amortized and spread uniformly throughout the Lease Term." 3. END OF LEASt; OPTIONS. (a) Provided that no Event of Default has occurred and is continuing, and at least 90 days but no more than 1$0 days prior to the expiration of the Primary Term (the "Expiration Date"), Lessee will give irrevocable wriften notice to Lessor of its intention to either. (i) purchase ail of the Products at the Fair Market Value (as defined below); (ii) renew the Lease Term for a minimum of six (6) months at a rate and for a term agreed upon by both parties; or (iii) return all of the Products in accordance with the Agreement. (b) If Lessee exercises the option to purchase the Products then, upon receipt of payment of the "Fair Market Value" (defined below), plus applicable taxes, Lessor will sell the Products to Lessee AS IS-WHERE IS, WITHOUT WARRANTY OR RECOURSE, EXPRESS, IMPLIED OR OTHERWISE, INCLUDING ANY WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR AGAINST INFRINGEMENT. The Fair Market Value purchase price shall be paid on or before the last day of the Primary Term. "Fair Market Value" means the price of the Products, installed, in use and in the condition required by the Agreement as de#ermined by Lessor in its reasonable judgment. If Lessee disagrees with the Fair Market Value, Lessee shall notify Lessor in writing within 60 days prior to the Expiration Date and, upon Lessee's request, and within ten Page 1 of 2 DFS LLC Public TL Schedule.uni~ersaLO6D1D8 (14) days after receipt of Lessee's notice, Lessor shall appoint a qualified appraiser reasonably acceptable to Lessee to appraise the retail value of the Products. The amount determined by such appraiser shall be the final Fair Market Value. Lessor and Lessee shall share the expense of such appraisal equally. (c} I# Lessee desires to renew a lease, Lessee and Lessor shall enter into a supplement to this Schedule describing the length of the renewal Lease Term and the renewal Rent provided, however, all other terms of this Schedule and the Agreement shall remain in full force and effect. (d) Whether or not Lessee has given Lessor notice if its intent as described above, if Lessee does not retum or purchase the Products or renew the Lease as required above, the Lease Term shall automatically extend on a month-to-month basis at the Rent in effect on the Expiration Rate (prorated on a monthly basis if the Payment Period was other than monthly during the Primary Term}. Such extension sha11 continue until Lessee: (i) provides thirty (30}days prior written notice of its intention to re#urn or purchase the Products (to take effect on the next Rent payment date That is at least 30 days after the notice is received by Lessor) and (ii) either returns or purchases all of the Products in accordance with the End of Lease options above. Payments of Rent during the month-to-month extension are due and payable monthly as specified in Lessor's invoice. if Lessee fails to return or purchase any Products, the Schedule and associated Rent for the Products that have not been returned or purchased shall ex#end on a month-to-month basis in accordance with the prior sentence. 4. COMPLETION OF SCHEDULE. Lessee hereby authorizes Lessor to insert or update the serial numbers of the Products from time to time if necessary. By signing below, each ofi the parties hereto agrees to be bound by the terms of the Agreement, this Schedule and the attached Exhibit "A". City of Corpus Christi, Texas DELL FINANCIAL SERVICES L.L.C. (Lessee) (Lessor) By: (Authorized Signature) (NamelTitle) (Date) By: ;Authorized Signature) (i'~1ai11~ITlt~e~ f~atel Page2of2 AF5 LLC Puhlic 7L Schedule.universak.060108 ~ Financial Services City of Corpus Christi, Texas DELL FLEX LEASE PURCHASE SCHEDULE NO. XXX-6458274-XXX TO MASTER LEASE AGREEMENT NO. 8458274 THIS SCHEDULE IS SUBJECT TO AND INCORPORATES THE TERMS AND CONDITIONS OF MASTER LEASE AGREEMENT NO. 6458214 ("Agreement") DATED March 25, 20x9 BETWEEN DELL FINANCIAL SERVICES L.L.C. ("Lessor") AND City of Corpus Christi, Texas ("Lessee")AND IS PURSUANT TO DIR CONTRACT NO. DIR-SDD-890. Lessor hereby agrees to lease and/or maEce oval{able to Lessee subject to the terms, conditions and provisions set forth in this Schedule and in the Agreement, the Products described below. Any capitalized term Used herein and not defined herein shall have the meaning ascribed to it in the Agreement. PRODUCT DESCRIPTION AND LOCATION: See below or Exhibit "A" attached to and made a part hereof. PRODUCT SELLER: [Dell Inc., One Dell Way, Round Rock, TX 78682] Product Description Product Location Lessee Purchase Primary Term Corr~menCernent Order No. Mos. ©ate* ,_ ~ yr - ~.~r1t is payable '~~nvance; _ ~r: ~ir~~ars [specify] ;~= "' I - ~ - - i P~, i#~'dt';t Period ~ i,7or~t#5!y Ouar~ori A~+r~u~i;y°: C~t#~~r_~specify,; ) ' Lessee is rest~~risii le fr~r ~p~,Ncabl~ #axvs, sfi[p{~in~,a ~r)d otYt~„r~ amotint~ as described in the A~re~ment and, with~~iho ~:r~t fi~Ent of Rent ~~s~y prvrat~~.j R~r~t if al~ph~~l~le 5tir'h ~rf~L~unts ~rt~''furth~ tipscribed in Exhibit "A r , , -. , . "* The CGn~~ ~en~,ement Da#e may ~? ~~ftehcltrd for o~~ P yment F'erlod un~€ t Schedule is returned in accordance v~ith the terms in the ~gr~:errt~trt, r Lessor may ci r~rg~~L~~e~ prorate Genf accruing from the Acceptance Date to the Commencement Date, as su~~~;~~fat~ is fitr~~t~~ determined. . ~_, ~. LEASE PURCHASE PROVISIONS The following provisions shall apply wi#h respect to this Schedule in addition to those provisions in the Agreement: 7. SECTION 4. RENT; TAXES; PAYMENT OBLIGATION. Insert as a new last sentence to subsecticn (a) the fallowing: "For the purposes of this Schedule, the Rent and Purchase Price (as of the applicable Purchase Date) are shown in the chart below or on Exhibit "B", attached #o and made a part hereof. Payment Numherl Rent Purchase Date Interest Portion Principal Portion Purchase Price" Add as a new last sentence to subsection (b) the fallowing: "Because the Praducfs will be used for a governmental or proprietary purpose of Lessee, they are exempt from all sales, use and property taxes." 2. SECTION 3. TERM. Insert as a new second paragraph the following: "TECHNOLOGY REFRE5H WITH NEW FINANCING OPTION. Provided no Event of Default has occurred ar is continuing under this Schedule and the Agreement, Lessee may exercise the following technology re#resh option ("Tech Refresh Option") by DFS LLC Public LP Schedule De€IFIexOption.o&0108 Page i of 3 delivering to Lessar an irrevocable written election notice to exercise the Tech Refresh Option at least 120 days prior to fhe expiration of the Primary Term and by completing all of the following on or before the beginning of the last month of the Primary Term (the "Tech Refresh Date'): (i) Lessee returns all (but not less than all) of the Products on this Schedule ("Original Products") to Lessar in the same manner as described in the Agreement; and (ii) Lessee enters into a new Schedule under the Agreement (the "New Lease") with a primary term of at least 24 months for new equipment ("New Products") which are, as determined by Lessor, of the same manufacture, type and quality as the Original Products and which have a Total Product Cost that is at least 75% of the Total Product Cost of the Original Products. When Lessee completely fulfills the terms and conditions of the Tech Refresh option and has made all payments and performed all other obligations under the Schedule and the Agreement, then this Schedule shall terminate and, except as provided in the Agreement, Lessee shall be relieved of all obligations under this Schedule. Notwithstanding the election by Lesser of the Tech Refresh Option, the Schedule and Agreement shall remain in full force and effect and if the terms and condition of the Tech Refresh Option are not fulfilled before the Tech Refresh Date, the Tech Refresh Option shall be null and void and Lessee shall pay the final Rent payment due on the Tech Refresh Date. 3. SECTION 11. REPRESENTATIONS, WARRANTIES AND COVENANTS OF LESSEE. For purposes of this Schedule, add paragraphs Q) through (t) as follows: "Q} Lessee will comply with the information reporting requirements of Section 149(e} of the Code, including but not limited to, the execution (and delivery to Lessor) of informa#ion statements requested by Lessor; (k) Lessee will not do, cause to be done or fail to do any act if such act or failure to act will cause this Agreement, or an transaction hereunder, to be an Arbitrage Bond within the meaning of Section 148 of the Code nr ~ Private Activity E+~t~tf -~itt'~lfi the meaning of Section 141 of the Code; ,, .::.. .:. (I) The total cost of thPPrvducfs listed~irt t# Schedule wil(~z~itiJe les3 than the total Prfmripal F~eirt~on of fhe Rent fisted"in this Schedule; - , !m'i °1;h~, Products ifst~~i €rt,this Scheduto ~hav~ car will he err~~I~~ati withrni~#,~,n~rstli,:afrtt~e dates I'tereof in order to ccrilni~nce <.. _ >_,. uct~`Schedule; ~~ ~ > in~.T~1e, Products irsted u~ thfs ched~,le art.? ~fL~cked ta~be d~lr~~red ~nr~~,installed, and the Sefier ~fuUy p~irt sw~t~in one y~~f frc~im`Eh~:;Jate IieP~~(;r I . f _ ., , _.i (o) No fund or ar,nunt which sect:rtes, r cttt~rwise r' ` 's to the Rent has keen established; ~~~~~C'~ssee w'rot sell, encumber or otherwise dispose of any property comprising this Schedule prior to the final maturity or "'''feimination of such Schedule without a written opinion of nationally recognized bond counsel to the effect that any such disposition will not adversely affect the exclusion of interest on the Rent from gross income for federal income tax purposes; (q) Lessee agrees to execute, deliver and provide Lessor with satisfactory evidence of the filing of such documentation, as may be required for the purposes of properly reporting this Schedule, including, without limitation, IRS forms 8038-G or 8038-GC, as required under the Code; (r) It is expected that Rent under this Schedule will be paid from periodic appropriations of the Lessee deposited into the general fund of the Lessee, that such appropriations will equal the Rent due during each Fiscal Period of Lessee, and that all amounts paid for Rent will be from an appropriation made by the Lessee during the Fiscal Period in which such Rent is made; (s} To the best of our knowledge, information and belief, the above expectations are reasonable; and (t) Lessee will comply with all applicable provisions of the Cvde, including without limitation Sections 103, 141 and 148 thereof, and fhe applicable regulations of the Treasury Department to maintain the exclusion of the interest components of Rent from gross income for purposes of federal income taxation. Without limiting the generality of the foregoing, Lessee shall acknowledge any assignment of this Schedule in writing and complete an accurate record of all such assignments in a manner that complies with Section 149(x) of the Code and the Treasury Regulations promulgated thereunder." TO Ti-IE EXTENT PERMITTED BY LAW, AND IN ADDITION TO LESSE'S OBLIGATION UNDER SECTION 16 OF THE AGREEMENT, LESSEE HEREBY ASSUMES LIABILITY FOR, AND SHALL PAY WHEN DUE, AND SHALL INDEMN[FY AND DEFEND LESSOR AND ITS SUCCESSORS AND AS5IGNS AGAINST, ANY AND ALL LIABILITIES, LOSSES, DAMAGES, CLAIMS AND EXPENSES (INCLUDING REASONABLE ATTORNEY FEES) RELATING TO OR ARISING OUT OF LESSEE'S BREACH OF -ANY OF ITS REPRESENTATIONS, WARRANTIES, OR COVENANTS CONTAINED IN Page 2 of 3 Di=S LE.C Public LP Schedule DeIIFIexOpiion.060108 SECTION 11 OF THE AGREEMENT AS SUPPLEMENTI=D HEREIN. 4. SEGTION 12. WARRANTY ASSIGNMENT; EXCLUSION OF WARRANTIES; LIMITATIONS ON LIABILITY; FINANCE LEASE. For purposes of this Schedule, delete "FINANCE LEASE" in the title of this Section and delete paragraph (d). 5. SECTION 17.OWNERSHIP; LIENS AND ENCUMBRANCES; LABELS. Insert at the end of this paragraph the following: "Notwithstanding the first sentence of this Secticn ,upon Lessee's acceptance of the Products under this Schedule, title to the Products shall vest in Lessee subject to Lessor's rights under the Agreement; provided that, upon an Event of Default or any termination of this Schedule, other than by Lessee's purchase of the Products, title to the Products shall immediately and without any action by either party vest in Lessor, and Lessee shall immediately surrender possession of the Products to Lessor. Any such transfer of title shall occur automatically without the necessity of any bill ofi sale, certificate of title or other instrument of conveyance. Lessee shall, nevertheless, execute and deliver any such instruments as Lessor may request to evidence such transfer. 6. PURCHASE OPTION. Provided that no Event of Defaulf has occurred and is continuing, and at least 60 days but no more than 180 days before the purchase da#e ("Purchase Date"} selected by Lessee, Lessee will give irrevocable wri#ten notice to Lessor of its intention to: (i) purchase the Products far $1.00 at the end of the Primary Term; (ii) purchase the Products at the Purchase Price as stated in Paragraph (i) above ar as lisfed on Exhibit B, so long as all other amounts due on the Purchase Date have been paid in full; or (iii) return the Produc#s in accordance wi#h the Agreement for a fee agreed upon by both parties. Upori satisfaction by Lessee of such conditions, Lessee shah be entitled to Lessor's interest i~,tl~Q Products, AS fS.,''~~t"~~~' ' iS, WITHOUT WARRANTY OR RECOURSE, EXPRESS, IMPLIEp ~t3R ~:~t~~~'vNISE, FS'~~ OR AGAINST ,L~~SOR, INCLUDING ANY WARRANTIES OF DESIGN, MERCFf~~~ABILi~,-1TNE~S'~C~~? A e~~,t~TICULAR PURP~ OR AGAINST INFRINGEPutENT, otherthar+fh~:~hsence of any;iierr~: by, through, ur under L~~.,r. ~' ~ A~;:4tttinuing security frr°~essee's obhg~tlurrs'hareunder, t_.~~.;cr~ hereby grants to Le~~~' a f~rst~p~iority security interu,t in ail ~f Le~cee's rights e~3d interest in and tc~ t('te `+~~,j iurts snd:°nll ;rri~ceeds tf?areafi fr2e`~ri~f`clear of ;~}} security irrterests~ Ijens or - ~ ~ - _ .,~ P ~_. ~; , r~~~3n-rbrances what5_~~ ~µr;.:- - _ ~ , . 7 - ~C?MPLETIpN QF SGFiI fTlILE. ~~5ae~ harit,y ~utiloriGd~ ~c-.~sc~r tp Snsert or update the sar~a;1~ nuf~' ~~f ~he I~rpducts . , frrrn~tirn~ to tir~ie 25 si~c.es~aflf ...~:, . ,, ~, e . - .-.,,- F. l By siyr~~nq t~etptilr~ each of the panics herato agreio be baurid by the terms of the Agreement, this Schedule and the attac~ri~cl, E.>:hi~cl~`"A" and `B" City of Corpus Christi, Texas DELL FINANCIAL SERVICES L.L.C. (Lessee) (Lessor) By: (Authorized Signature) (NamelTitle) (Date) DFS LLC Public LP Schedale DeIIFIexOpYion.0601D8 Page 3 of 3 (Authorized Signature) (Name/Title) {Date)