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HomeMy WebLinkAboutCMS, Inc. - 2005-03-07Council/Agency Meeting Held: / &03 Deferred/Continued to: 'Approved ❑ Conditionally Approved © Denied *tyrk' Sign Council Meeting Date: 3/7/2005 Department Number: LS 05-01 CITY OF HUNTINGTON BEACH _ REQUEST FOR CITY COUNCIL ACTION o q � SUBMITTED TO: HONORA LE MAYOR CITY COUNCIL MBERS SUBMITTED BY: PENE ECU E - RAFT, ITY A M IST T R PREPARED BY: RON HAYDE,N, DIRECTOR OF LIBRARY SERVIC �- BEHZAD ZAMANIAN, ACTING INFORMATION SERVICES DIRECTO SUBJECT, APPROVE LEASEIUSE AGREEMENTS TO REPLACE THE LIBRARY'S COMPUTER AND PHOTOCOPYING SYSTEMS Statement of issue, Funding Source, Recommended Action, Alternative Action(s), Analysis, Environmental Status, Attachment(s) Statement of Issue: The computer system for the Library, including the circulation system and photocopiers, is over 10 years old and needs to be replaced because a current system is antiquated and no longer serviceable.���� r l Funding Source:i $150,000 FY03-05 Equipment replacement - account 10400211.84000 - 10042154C $ 7,500 California State Library Grant for the purchase of a library server 161 790 FY02-05 Library equipment replacement - account 88050151.84000 $319,290 Total combined equipment replacement funding in current budget. Recommended Action: 1) Motion to approve and authorize the execution by the Mayor and City Clerk of the licenseluse agreement between the city of Huntington Beach and ❑ynix Corporation for application software to replace the Library's automated circulation system. (See Attachment #1) 2) Motion to approve and authorize the execution by the Mayor and City Clerk of the license/use agreement between the city of Huntington Beach and the CMS lease agreement for copiers. (See Attachment #2) Alternative Action(s): 1. Do not approve the Dynix or CMS agreements and select other vendors, Analysis: The Huntington Beach Public Library currently has an automated computer system from the GEAC Company. This system is 10 years old. Throughout the past four years, staff have done all they could to preserve the GEAC computer for as long as possible. Due to its age, parts and maintenance are difficult to obtain. It needs to be replaced. The following are the primary justifications for recommending the replacement of the GEAC computer system and the current photocopiers: 1�— — • Huntington Beach is one of only two California libraries to use GEAC. The other city library, Altadena Public Library, is in the process of selecting another system. Therefore, Huntington Beach will soon be the only California public library using GEAC. • GEAC is more costly to manage, less reliable, and more prone to catastrophic failure. • If GEAC is not replaced, the Library is susceptible to significant loss of data, including over 250,000 resident records, 1 million circulation records, and 400,000 item records. GEAC was "down" 12 times in the last two years and unavailable for patron use for up to a week at a time. • Library computer peripherals such as printers and copiers are over 10 years old. There have been many patron complaints about the frequency of out -of -order signs on the aging equipment. • The server hardware is an IBM RS/6000 Powerserver purchased in 1994 and is no longer in production. Replacement parts are difficult to obtain. • The server had to be serviced 4 times in the last 6 months making it costly to maintain. • In December 2005, the Library's current book ordering system will no longer be supported. Therefore, we will not be able to order books electronically and economically without a new system. • In July 2005, the Library's cataloging software will no longer be supported. In addition to not being able to order books, the staff will not be able to edit and add book inventory data. The Library Department has been planning for a new system for five years. A development and evaluation committee comprised of Library staff prepared specifications, conducted site visits to other public libraries, and offered recommendations to the Library Director for the purchase of the new circulation system. Additionally, a review, selection and negotiating committee was established which included staff from the Library Department, Information Systems Department, Administrative Services Department — Purchasing and Finance Divisions, and City Attorney. This committee analyzed the vendor responses to the Request for Proposal (See Exhibit B). The following are the bidding companies, with their respective bids (See Exhibit A for Dynix RFP Responses): K After an extensive analysis of the bid responses, staff is recommending to the City Council that Dynix be selected for the Library's new computer system. The Purchasing Division, with the assistance of the Finance Officer, conducted a comprehensive review of the financial background of Dynix and concluded that the company is in good financial condition and a reputable company. Dynix was established in 1983 and is the largest company of the five bidders with 405 employees. Dynix also has the largest number of libraries with 4,272 public libraries and 5,494 non-public libraries as clients. A number of local cities selected Dynix for their public library circulation system including Newport Beach, Long Beach, Anaheim, Fullerton, Pasadena -Glendale, Redondo Beach, Buena Park and Downey. Dynix will provide an efficient and effective computer system. The new Dynix system will have the following benefits: • Improve customer service to library patrons by increasing system reliability and availability, faster system response times, and adding new features that are easier to use. • Provide more reliability with new computer servers, workstations, copiers, and printers. • Provide user-friendly software which makes it easier for staff and patrons to use. The new catalog will have an easy to use modern interface similar to Amazon.com. • Save approximately $23,000 annually in annual maintenance costs due to reduced staff time to maintain. • Provide more security by using the latest technology to encrypt sensitive information which protects patron's circulation records and Library processing records. • Reduce staff time needed to support the new system. Many tasks can be automated such as scheduling reports, processing transactions and back up activities. • Provide a "Kids Informational Portal" which draws children into a world of exploration through colorful icons and easy to use navigation of the Library's collection. • Allow staff to do an inventory of the collection, which will result in more accurate circulation data, reduced mistakes in overdues and missing books. • Provide faster response time when searching for materials. (Currently staff and patrons must wait for the 10-year-old server to respond.) • Provide more compatibility with surrounding libraries that have modem computer systems such as Dynix. The library will be able to more efficiently share data with other libraries such as borrowing material or interlibrary loans. The costs related to the replacement of the Library's computer with the Dynix and CMS systems is $319,290. They are entirely funded within FY03/04 and FY04/05 budget approved by the City Council. Additionally, a California State Library grant in the amount of $ 7,500 will be applied to the new computer system. 3 Along with the new Dynix library system, the library's obsolete computers, copiers, and printers will be replaced. The new system includes an arrangement for new copiers with five at the Central Library and one refurbished at each of the four branches. The current copiers are over eight years old and are heavily used. Working with Administrative Services and Information Services departments, library staff is recommending a lease agreement with CMS to provide copiers and printers for the public. Many public libraries use CMS_ With the assistance of the Information Systems Department and Administrative Services Department -- Central Services Division, it was determined that CMS provided a unique product which is used by many local public libraries. Since CMS has proprietary software for this program, it is the recommendation of Central Services to lease the proposed equipment, under CMS, in order to reduce administrative costs and eliminate trouble- shooting problems. The cost of the CMS equipment is $2,010.61 per month for a 60-month lease (a total of $120,637). After City Council approval, the implementation will begin in March. The following are critical dates for the project, including the "go live" or use by the public on July 27, 2005. Project Start March 7, 2005 First Payment Delivery of Programs (30%) March 14, 2005 Second Payment Complete Test Data Load (30%) June 27, 2005 Third Payment Delivery of Server (30%) July 19, 2005 Go Live July 27, 2005 Final Payment (10%) August 10, 2005 In conclusion, the Library's 10-year-old computer system and photocopiers must be replaced. After an extensive evaluation by a number of city departments, staff is recommending that Dynix be selected for the new automated circulation system. Staff is also recommending that CMS be selected for the leasing of the photocopiers. The costs for the entire system $319,290 and is fully funded in the current budget and by a California State grant. Environmental Status: NIA 2. RCA author: Hayden License/use agreement between the city of Huntington Beach and Dynix Corporation for application software CMS Document Management and .Supp Servic s Agreeme t 4 02/11/2005 City of Huntington Beach Ron Hayden 7111 Talbot Avenue Huntington Beach, CA 92648 re: City of Huntington Beach Property Schedule No. 22247801 Dear Mr. Hayden Enclosed you will find the lease documents for the financing of your equipment. I have prepared these documents at the request of Adam Huhn of IFC Credit Corporation. Please refer to the enclosed Document Checklist when you are signing the documents. L executed, you may return the original documents to me in the enclosed, pre -paid, self-addressed Airborne ess package. e contact either Adam Huhn at 847-324-1548 or me at 847-663-6700 with any questions. Sincerely, Lori Yungerman Contract Administrator .ATTACHMENT #2 CMS Document Management and Support Services Agreement This agreement is dated March _77-*, 2005 by and between CMS Inc. (hereafter CMS) 1571 North E Street, San Bernardino, CA 92405 and the City of Huntington Beach, a California municipal corporation, (hereafter Customer), whose Central Library is located at 7111 Talbert Avenue, Huntington Beach, CA 92648 Customer Requirements The following documents are included and made part of this agreement that are required in order for CMS to fulfill obligations as outlined in this CMS Document Management and Support Services Agreement: • CMS Document Management and Support Services Agreement • CMS Lease agreement dated March 1Z'2005 Installation and operation CMS will install all software and hardware components of the agreed upon solution and will ensure its functionality and operation. So that the solution is not adversely affected CMS requires, and the customer agrees, that no changes to the Customers network, operating systems, servers or client software will be altered or changed without prior notification to CMS. Customer may, however, install service packs or other such modifications propagated by the original software vendor. CMS fee is inclusive of normal installation charges. Customer and CMS will perform a pre -installation walk-thru. Customer agrees to complete the pre -installation checklist and return checklist to CMS prior to CMS ordering or assembling any equipment or services for the customer. Upon acceptance and consummation of these Agreements, CMS will provide the Customer with a Complete installation plan detailing all periods and schedules. Contract additions/modifications CMS and Customer agree that additional services may require a signed amendment to this agreement. Where such is deemed necessary, said agreement shall be executed prior to implementation of such additional services. Insurance CMS will carry and keep in force workers' compensation insurance for its employees and automotive and general commercial liability insurance in the amounts and types of coverage as more specifically set forth below. Customer agrees to keep in force necessary insurance coverage naming CMS as an additional insured on the equipment provided in this and/or the lease agreement. LIABILITY, INDEMNIFICATION AND DEFAULT INDEMNIFICATION AND HOLD HARMLESS. CMS hereby agrees to protect, defend, indemnify and hold harmless CITY, its officers, elected or appointed officials, employees, agents and volunteers from and against any and all claims, damages, Page I of 12 Huntington Beach PL 2005 Jan 28 losses, expenses, demands and defense costs (including, without limitation, costs and fees of litigation of every nature or liability of any kind or nature) arising out of or in connection with CMS 'S performance of this Agreement or its failure to comply with any of its obligations contained in this Agreement by CMS , its officers, agents or employees except such loss or damage which was caused by the sole negligence or willful misconduct of CITY. CMS will conduct all defense at its sole cost and expense, and CITY shall approve selection of CMS 'S counsel. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by CMS. INSURANCE WORKERS' COMPENSATION INSURANCE. Pursuant to California Labor Code section 1861, CMS acknowledges awareness of Section 3700 et seq. of said Code, which requires every employer to be insured against liability for workers' compensation; CMS covenants that it will comply with such provisions prior to commencing performance of the work hereunder. CMS shall maintain workers' compensation insurance in an amount of not less than One Hundred Thousand Dollars ($100,000) bodily injury by accident, each occurrence, One Hundred Thousand Dollars ($100,000) bodily injury by disease, each employee, Two Hundred Fifty Thousand Dollars ($250,000) bodily injury by disease, policy limit. CMS shall require all sub -contractors to provide such workers' compensation insurance for all of the sub -contractor's employees. CMS shall furnish to CITY a certificate of waiver of subrogation under the terms of the workers' compensation insurance and CMS shall similarly require all sub -contractors to waive subrogation. GENERAL LIABILTY INSURANCE. In addition to the workers' compensation insurance and CMS'S covenant to indemnify CITY, CMS shall obtain and furnish to CITY, a policy of general public liability insurance, including motor vehicle coverage covering the services to be performed by CMS pursuant to this Agreement, which services may sometimes hereinafter be referred to at "the PROJECT." Said policy shall indemnify CMS, its officers, agents and employees, while acting within the scope of their duties, against any and all claims of arising out of or in connection with the PROJECT, and shall provide coverage in not less than the following amount: combined single limit bodily injury and property damage, including products/completed operations liability and blanket contractual liability, of $1,000,000 per occurrence. If coverage is provided under a form which includes a designated general aggregate limit, the aggregate limit must be no less than $1,000,000. Said policy shall name CITY, its officers, and employees as Additional Insureds, and shall specifically provide that any other insurance coverage which may be applicable to the PROJECT shall be deemed excess coverage and that CMS'S insurance shall be primary. Under no circumstances shall said above -mentioned insurance contain a self -insured retention, or a "deductible" or any other similar form of limitation on the required coverage. CERTIFICATES OF INSURANCE; ADDITIONAL INSURED ENDORSEMENTS. Prior to commencing performance of the work hereunder, CMS shall furnish to CITY certificates of insurance subject to approval of the CITY Attorney evidencing the foregoing insurance coverages as required by this Agreement; said certificates shall: Page 2 of 12 Huntington Beach PL 2005 Jan 28 a) provide the name and policy number of each carrier and policy; b) shall state that the policy is currently in force; c) shall promise to provide that such policies will not be canceled or modified without thirty (30) days' prior written notice of CITY; and d) shall state as follows: "The above -detailed coverage is not subject to any deductible or self -insured retention, or any other form of similar -type limitation," CMS shall maintain the foregoing insurance coverages in force until the work under this Agreement is fully completed and accepted by CITY. The requirement for carrying the foregoing insurance coverages shall not derogate from the provisions for indemnification of CITY by CMS under the Agreement. CITY or its representative shall at all times have the right to demand the original or a copy of all said policies of insurance. CMS shall pay, in a prompt and timely manner, the premiums on all insurance hereinabove required. A separate copy of the additional insured endorsement to each of CMS's insurance policies, naming the CITY, its officers and employees as Additional Insureds shall be provided to the CITY Attorney for approval prior to any payment hereunder. Equipment CMS will provide/install/continue to maintain the following equipment at the customer's site in those areas as agreed to by CMS. Location Description Qt Equipment Detail Platen Cover Paper Bank (500 x 2) Main Library Savin 4018 5 Cabinets — one ADA Coin/bill unit included with copiers CMS interface. Coin/bill units will escrow funds. Kyocera 1920N printers 2 Black & White printers CMS DigiNet Print Release 2 Coin/bill unit. Coin/bill units will escrow Stations funds. Office supply machine 1 CMS supplied and owned CMS supplied and owned Microform machines 2 1 read only 1 read and print Page 3 of 12 Huntington Beach PL 2005 Jan 28 Microform machine — digital 1 Library owned Sharp AR 286 1 CMS supplied and owned — staff copier Color copiers 2 CMS supplied and owned Refurbished copiers 4 Coin/bill units Branches Kyocera 1920N printers 4 Typewriter 1 CMS owned — Banning Branch CMS DigiNet Print Release Station 1 Oakview with coin/bill unit Library System CMS DigiNetlPC Cop Unlimited client license Equipment Configurations The above represents the configuration of equipment CMS will provide and install. Models of equipment, but not functionality, are subject to change without notice. The library may maintain the equipment noted above as existing. However, these items specified in this following section do not generate revenue for the library. Staff copier: The existing staff copier, a Sharp AR 286, serial number 96504026, will remain as a rental machine. The library will continue to receive 6000 free copies per month with additional copies charged at $0.031 per copy plus sales taxes applicable. Copies made on this machine do not create any revenue for the library. Office supply vend machine: Revenue from this machine does not generate revenue for the library_ Color copier(s): Revenue from the color copier(s) does not generate revenue for the library. Typewriters: Revenue from the typewriters does not generate revenue for the library. Warranties CMS will warrant all equipment provided by CMS for the term of this agreement for all equipment, products and software provided as part of this agreement as either the manufacturer, Dealer, servicing agent or distributor of all products provided_ In the event there is a defect, malfunction or failure, CMS will repair, replace or remedy any malfunctioning equipment and software products provided by CMS as part of this agreement. CMS warranty does not cover damage caused by abuse, misuse, mishandling, misapplication Qnd computer viruses. CMS guarantees an average up time of 98% for the equipment proved in this contract. Page 4 of 12 Huntington Beach PL 2005 Jan 28 Customer provided equipmentiproducts Customer agrees to provide the necessary computing equipment support and service for the print release stations and the data base server according to CMS specifications provided. Customer agrees to provide all necessary electrical outlets, network connections and/or cables to allow CMS to successfully install and maintain the equipment. Customer agrees to provide CMS with VPN capabilities by using the latest Cisco client to enable CMS to remotely troubleshoot update and/or support the network printing system. Customer agrees to provide equipment that meets at least the minimum following specifications and maintained in good working order with necessary virus and security protection: Description Of Computer Quantity Detailed Description of Computer Equipment • Pentium 3, 750 GHz • 1GB Memory • Keyboard, Monitor, Mouse Backend Server: • 2 Hard Drives 40GB 7.2K RPM IDE • RAID Level I Central MS SQL Server Database. This 1 • Onboard NIC 10/100 machine will service all Customer • 48X IDE CD ROM locations via Customer WAN/LAN. • Same Day 4Hr Response Parts + Onsite Labor (M-F 8am-6pm) Hardware Support Services • Windows 2000 Server with 50 Client Licenses, 4GB Utility Partition • MS SQL Server 2000 • Pentium 3, 750 GHz • 256MB Memory • Keyboard and Mouse Kiosks: • 15 or 17 inch CRT color • 20GB Hard Drive (7200 RPM) Computers for Add Value Stations Print 6 . No Floppy Drive, use with CD-ROM Release Stations. • Windowsp XP Professional using NTFS • 10/100 3Com NIC • 10/24X CD-ROM • Norton Antivirus 2002 • I COM1 ports RS-232 Electronic Controls, Service and Cash Collection Services CMS personnel will routinely replenish the supplies for all equipment on a CMS scheduled basis. The Customer will assist (load supplies, clear misfeeds, administer software, etc.) CMS with these services outside of the scheduled hours or service visits of CMS. During periods of peak activity, supplies may be replenished more frequently to ensure that the needs of the end user are met on a mutually agreed upon schedule. CMS will coordinate with the customer regularly scheduled service and supply visits to inspect, replenish and perform preventative maintenance along with testing the solutions and equipment provided by CMS for this contract. CMS will train the customer on all normal course of business support for this program to include but not be limited to: loading of paper, toner, clearing of misfeeds, software administration and support. Page 5 of 12 Huntington Beach PL 2005 Jan 28 CMS will collect and process all cash from vend devices and will process all funds and remit the rebate monthly. Billing and Reporting (a) Usage Reports CMS personnel will download all electronically stored information from each unit monthly. CMS will compile the information and detailed reports will be provided to the customer the following month. (b) Billing Report(s) Billing report(s) identify machine locations, gross copies, and charges for copies/prints, and the net amount due CMS. Reports will be provided to the customer approximately 30 days from the last day of each month's end. Hours of Service CMS will provide equipment maintenance from: Monday through Friday 8:00 AM to 5:00 PM Saturda t 0:00 AM to 3:00 PM These hours may be adjusted as deemed appropriate by CMS and approved by the customer and/or as mutually requested by the Customer and agreed upon in writing by both parties, dependent upon volume, workload and other requirements. CMS will provide emergency service response within a six (6) hour average for all actual service calls placed by the customer to CMS 800 service line and/or electronic e-mail request during CMS business hours. CMS will respond to service calls within this 6 hour average except for reasons attributed to causes not within CMS' control (including and not limited to natural disasters, major traffic delays, power outages, out of coin/change, etc.). The Customer understands and acknowledges that service hours for holidays will be adjusted to CMS' calendared holidays as indicated below. • Christmas Day • Thanksgiving Day • Independence Day • New Years Day • Memorial Day • Labor Day • Martin Luther King Jr. Day • President's Day • Easter • Veterans Day • Columbus Day Page 6 of 12 Huntington Beach PL 2005 Jan 28 Weekend and after hour services CMS provides weekend and after hours support and service as part of its Document Services Agreement. Phone and e-mail support are provided at no charge Monday - Friday 8 AM-5 PM and Saturday 10 AM-3 PM PST with all others times and support functions billed at $150.00 per hour. Contractor will provide service Saturday 10 AM to 3 PM for catastrophic service issues. Catastrophic service issues include issues such as no copy/printing services available at a service outlet or the print system software down. Storage/use area Term Customer agrees to provide CMS with a secure area in which to store supplies. The term of this agreement is for sixty (60) months. This agreement may be renewed for additional one (1) year periods upon the written mutual consent of both parties not to exceed three (3) additional years in total, unless canceled in writing 60 days prior to the end of any 12 month extension period_ CITY shall have the right to terminate this Agreement upon not less than 60 days advance written notice. CITY shall nonetheless remain obligated to pay all accrued charges owed at the time of termination under this Agreement. Financial Consideration Price includes all proposed equipment, service, supplies, including paper, parts, and labor for all equipment/software included in this agreement. Customer agrees to pay CMS $0.031 per staff machine copy after 400 free copies per month per location. CMS will provide staff with 400 free staff copies per month per location using a bypass key or keys that will be given to each location. Bypass keys will be provided as needed. The 400 copies are not cumulative. Staff copying and printing will be charged at the rate of three point one cents ($0.031) each for black and white copy for copies exceeding the 400 free copy limit per site. Customer agrees to pay a flat leasing fee of $2010.61 per month for sixty (60) months plus CMS will collect the vend revenue to maintain the equipment and provide the other services outlined in this agreement. The $2010.61 monthly fee does not include any applicable taxes. Assignment CMS agrees not to assign or transfer any of its obligations under this agreement without the prior written consent of the customer, whose consent shall not be unreasonably withheld. Collections CMS will collect and process all copy and print revenue and will provide Customer with appropriate reports_ CMS will record all necessary meter readings. CMS collects all revenue generated from the vend towers, print and copy solutions. Page 7 of 12 Huntington Beach PL 2005 Jan 28 1. CMS counts, and processes the entire collection. Any refunds or credits are then accounted for. 2. The entire amount, less any refunds or credits, is then deposited. 3. Customer will be billed for copies and/or service charges as they may apply. 4. CMS submits invoices) to the customer for the contracted fee far its services, applicable taxes and any overage or other charges as agreed upon. 5. Customer agrees to pay CMS within thirty (30) days of receipt or date of invoice. 6. CMS will rebate to the customer twenty percent (20%) of the revenue for all copies/print revenue over $1800 per month. Revenue from the supply machine and other machines noted in this contract does not count in the $1800 revenue. Additional services CMS will provide all printer and copier supplies including paper. CMS and Customer may add additional services, personnel and/or equipment by amending these agreements. CMS will supply customer with a refund cash bag for the main library and the branches. The cash bag for the main library will be $30 and each branch will have a $15 cash bag. CMS will deliver and install/provide the equipment and software proposed by CMS at CMS expense. Customer agrees to provide adequate space, electrical, computer and network requirements. CMS will configure DigiNet so library patrons can print to the print release stations from their laptop computers. CMS will train the Customer employees in all CMS provided services including CMS software products, equipment support and administration of services_ Initially, CMS will provide a one hour training session on Saturday as well as training for staff during business hours, Monday through Friday. After all initial training is completed, training is charged at $150.00 per hour. Customer agrees to assist CMS with paper security. Customer also agrees to load paper and toner when needed. See Attachment A for details. CMS will provide, at customer's request, additional copiers for peak demand times, such as tax season. There is a $550 charge for delivery and pickup of the copier or copiers (if delivered at same time). This fee will be waived for tax season 2005, but be effective after May 1, 2005. All revenue from these machines will be collected by CMS and added to the customer's monthly revenue except for tax season 2005. Chargeable services It is CMS intent that all fees and charges are included in the Document Service agreements except for items as they relate to taxes, filing fees and other State, Federal and local charges. In the event the customer places service demands on CMS outside of the proposed solution, such as causing service issues by changing operating systems, print drivers, network configurations and any other such items that would create a service issue. In these instances CMS will invoice and the Customer agrees to reimburse CMS at the rate of $150.00 per hour for calls created in this manner. CMS recommends that any changes of this nature be brought to the attention of CMS prior to implementing so that CMS may assist/guide the customer through the process to avoid any downtime or performance issues. Page 8 of 12 Huntington Beach PL 2005 Jan 28 Pricing structure: Staff copies; $0.031 Cash Copying/printing black and white $0.20 Color copies Costs and Attorney Fees $1 _00 CMS and CITY agree that CITY is not liable for payment of any subcontractor work involving legal services, and that such legal services are expressly outside the scope of services contemplated hereunder. CMS understands that pursuant to Huntington Beach City Charter Section 309, the City Attorney is the exclusive legal counsel for CITY; and CITY shall not be liable for payment of any legal services expenses incurred by CMS . In the event suit is brought by either party to construe, interpret and/or enforce the terms and/or provisions of this Agreement or to secure the performance hereof, each party shall bear its own attorney's fees, such that the prevailing party shall not be entitled to recover its attorney's fees from the non -prevailing party. Governing Law This Document Services Agreement shall be governed by the laws of the State of California. Taxes, fees and licenses Customer will be responsible for any and all applicable taxes as it relates to the operation of this program and any licenses and other fees as billed or charged_ Page 9 of 12 Huntington Beach PL 2005 Jan 28 IN WETNESS WHEREOF, the parties have caused this agreement to be signed by their duly authorized representatives on the dates set for below. Title L.l DrGcr`l.{i f�b(Z Date: APPROVED AS TO FORM: City Attorney CMS Inc. By: Lou Barassi Secretary Date: d 7! d 5- By: jkml. Tami Leslie Vice President Date: See Full Signature Page IN WITNESS WHEREOF, the City of Huntington Beach has executed the aforesaid CMS DOCUMENT MANAGEMENT AND SUPPORT SERVICES AGREEMENT by and through its authorized officers on —MAc14 -�L 52005. REVIEWED AND APPROVED: Ciey Administrator INITIATED AND AP 0VED: Director o)Xibrary Services Director of Information Services See Other Signature Page fthv 031-Ila- APPROVED AS TO FORM: C' City Attorney U Attachment A: Key Operator Responsibilities KEY OPERATOR RESPONSIBILITIES - PRINT QUEUE and PC Library will provide Key Operators and MIS Staff to operate the Print Queue System and hardware installed by CMS. The Key Operators, after receiving the full and complete training as provided under the terms of this Agreement, will do the following: 1. Load Paper 2. Clear Paper Jams 3. Replace Toner Cartridges when they run out of toner. 4. Reset the Print Queue Workstation if the station is not recognizing the print jobs. 5. Check and verify the Print Queue Workstations are logged onto the server. 6. Manually Print a "Test Page" to check that the printer is working and printing. 7. Notify CMS after verification that the problem is not Network related, or if it requires supplies, paper, toner, or the machine will not take money. Every time a Workstation Printer is reported "not working" a Key Operator or MIS Staff who has a working knowledge of the Library network will make a good faith effort to determine if the problem is either NETWORK related or is a PRINT QUEUE workstation problem. NETWORK PROBLEMS ARE LIBRARY RESPONSIBILITY 1. Client is not logged on to the Network 2. Print Queue Workstation is not logged on to Network 3. Print server down or locked up due to bad data packets from Internet printing 4. Client workstation locked up due to corrupt data sending to print server 5. Client workstations with improper driver loaded 6. Client workstations with improper log on numbers 7. Client workstation dropping PCL code due to overloaded cache 8. Network losing printer address PRINT QUEUE PROBLEMS ARE CMS RESPONSIBILITY 1. Printer does not deliver a "Test Page" when a manual test is started 2. Coin/Bill unit is jammed 3. Coin/Bill unit displays a "error code" 4. Coin/Bill unit won't take money Key Operators or MIS Staff will immediately notify CMSS of any problem requiring technical assistance that is beyond Key Operator or MIS Staff responsibilities identified above by calling our toll -free number, 800-527-3331. In the event the Key Operator, MIS Staff or other authorized Library personnel call Page 11 of 12 Huntington Beach PL 2005 Jan 28 CMS for service and the problem is found to be NETWORK related or a Key Operator responsibility a minimum service charge of $150 per hour for each hour will be charged to Library. [During the initial 30-day period after installation of all of the equipment all service charges will be waived.] KEY OPERATOR RESPONSIBILITIES — COPIERS Library will provide Key Operators for the copier installed by APS. The Key Operators, will do the following: 1. Load Paper 2. Clear Paper Jams 3. Replace Toner Cartridges when they run out of toner. Page 12 of 12 Huntington Beach PL 2005 Jan 28 ASSIGNMENT OF PAYMENTS RE. Lease Schedule No. 22247801 under Master Lease Agreement No. 22247801 dated Fegruary 11, 2005 (the "Lease") between IFC Credit Corporation dba FIRSTCORP, an Illinois corporation, as Lessor ("Lessor") and CITY OF HUNTINGTON BEACH as Lessee ("Lessee") The undersigned Lessor has granted a security interest in and made an assignment of the Lease and the equipment leased thereunder (the "Equipment") to HTLF CAPTIAL CORP (the "Assignee"). Until further directed, Lessee is hereby directed, and by signature below agrees, to pay directly to the Assignee at the address set forth below all Lease Rental Payments and other payments required to be paid by the Lessee under the terms of the Lease including, but not limited to, Lease Rental Payments, sales and/or use tax, casualty and/or loss payments, accelerated payments upon default, attorneys' fees, and expenses of collection and enforcement of the Lease, all hereinafter referred to as "Payments". All Payments from time to time payable by the Lessee under the Lease shall be paid directly to the Assignee at its offices at World Trade Center, 1625 Broadway, Suite 370, Denver, CO 80202 _ , As of , 2005, there are twenty (20) successive quarterly Lease Rental Payments of $6,001.02 plus applicable taxes each due under the Initial Term of Lease Schedule No.22247801 Lessee's obligation to make all Payments under the Lease and the rights of the Assignee in and to such amounts, shall be absolute and unconditional and shall not be subject to any abatement, reduction, set-off, defense, counterclaim, or recoupment whatsoever; The Payments are due whether or not Lessee receives an invoice from Lessor or Assignee. Lessee will not modify or consent to any modification of the terms of the Lease or enter into any sublease of the Equipment without the prior written consent of the Assignee; the Lease represents the sole agreement between Lessor and Lessee with respect to the Lease, the Equipment, the Lease Rental Payments, and all other Payments due under the Lease; the Assignee shall have and be entitled to exercise any and all rights and powers of the Lessor under the Lease, but shall not have any affirmative obligation under the Lease except to take no action to impair Lessee's quiet enjoyment and use of the Equipment so long as the Lessee is not in default under the terms of the Lease. Additionally, Lessee agrees that (i) Nvill make payments as outlined above; (ii) that the Lease is in full force and effect' (iii) that Lessee is not in default; (iv) the Equipment ]eased under the Lease has been installed and accepted by Lessee; and (v) that Lessor is fully performing at the present time all the matters it has obligated itself to perform as provided in the Lease. THIS IS AN ASSIGNMENT OF PAYMENTS ONLY. IFC CREDIT CORPORATION DBA FIRSTCORP RETAINS TITLE TO THE EQUIPMENT AND ANY INQUIRIES REGARDING YOUR LEASE, EARLY TERMINATION, OPTIONS, ET CETERA SHOULD BE DIRECTED TO IFC CREDIT CORPORATION DBA FIRSTCORP. The parties intend and agree that a carbon copy, photocopy or facsimile of this document with their signature thereon and all counterparts when taken together, shall be treated as an original, and shall be deemed to be as binding, valid, genuine, and authentic as an original - signature document for all purposes, including all matters of evidence and the "best evidence" rules. WITNESS the due execution hereof and agreement hereto this 2005. ESSOR: C Credit Corporatiorn dbbaa FIRSTC `—'��. J : ILI uthotized Signature Susan M. Yates director of Contract Admin. LESSEE: CITY OF G AC I b Syr Authorized Signatur ,i( U 1} - Ron Rayden Name Director of ibrary Services Title Tax -Exempt Lease/Purchase Agreement No. 22247801 Dated 'ebrua 11, 2005 IFC Credit Corporation 8700 Waukegan Road, Ste 100 Morton Grove, IL 60053 / Name: Title: Agreed to by Lessee: =1TF,�VENUE GTON BEACH EACH, CA 92648 Name: R H den Title: Director of Libra Date: February 11, 2005 AGREEMENT: Lessor hereby leases to Lessee and Lessee hereby rents from Lessor all the Property described in Properly Schedule incorporated herein by reference, upon the terms and conditions set forth herein and as supplemented by the terms and conditions set forth in the Property Schedule. This Tax -Exempt Lease / Purchase Agreement together with the Property Schedule shall be defined as the Agreement. LEASE TERM: The Lease Term of the Property listed in the Property Schedule shall commence upon the date of acceptance of the Property by Lessee and continue for the time period set forth in the Property Schedule. This Agreement cannot be canceled or terminated by Lessee except as expressly provided herein. This Agreement is a triple net lease. LEASE PAYMENTS: Lessee shall pay rent to Lessor for the Property in the amounts, and on the dates specified, in the Property Schedule. Lessor and Lessee intend that the obligation of Lessee to pay Lease Payments hereunder shall not in any way be construed to be a debt of Lessee in contravention of any applicable constitutional or statutory limitations or requirements concerning the creation of indebtedness by Lessee, nor shall anything contained herein constitute a pledge of the general tax revenues, funds or monies of Lessee, NO OFFSET: SUBJECT TO THE RIGHT TO NON -APPROPRIATE, THE OBLIGATIONS OF LESSEE TO PAY THE LEASE PAYMENTS DUE UNDER THE PROPERTY SCHEDULE AND TO PERFORM AND OBSERVE THE OTHER COVENANTS AND AGREEMENTS CONTAINED IN THIS AGREEMENT SHALL BE ABSOLUTE AND UNCONDITIONAL IN ALL EVENTS WITHOUT ABATEMENT, DIMINUTION, DEDUCTION, SET-OFF OR DEFENSE, FOR ANY REASON, INCLUDING WITHOUT LIMITATION, ANY DEFECTS, MALFUNCTIONS, BREAKDOWNS OR INFIRMITIES IN THE PROPERTY OR ANY ACCIDENT, CONDEMNATION OR UNFORESEEN CIRCUMSTANCES, THIS PROIA&ON SHALL NOT LIMIT LESSEE'S RIGHTS OR ACTIONS AGAINST ANY VENDOR. Lessee shall pay when due all taxes and governmental charges assessed or levied against or with respect to the Property. LATE CHARGES: Should Lessee fail to duly pay any part of any Lease Payment or other sum to be paid to Lessor under this Agreement on the date on which such amount is due hereunder, then Lessee shall pay late charges on such delinquent payment from the due date thereof until paid at the rate of 12% per annum or the highest rate permitted by law, whichever is less. MAINTENANCE OF PROPERTY: At all times during the Lease Term, Lessee shall, at Lessee's own cost and expense, maintain, preserve, and keep the Property in good working order, and condition, and from time to fime make or cause to be made all necessary and proper repairs, replacements, and renewals to the Property, which shall become part of the Property. The Property is and will remain personal property. INSURANCE OF PROPERTY: All risk of loss to the Property shall be borne by the Lessee. At all times during the Lease Term, Lessee shall, at Lessee's own cost and expense, cause casualty, public liability, and property damage insurance to be carried and maintained (or shall provide Lessor with a certificate stating that adequate self-insurance has been provided) with respect to the Property, sufficient to protect the full replacement value of the Property and to protect from liability in all events for which insurance is customarily available. Lessee shall furnish to Lessor certificates evidencing such coverage throughout the Lease Term. Any insurance policy to be carried and maintained pursuant to this Agreement shall be so written or endorsed as to make losses, if any, payable to Lessee and Lessor as their respective interests may appear. All such liability insurance shall name Lessor as an additional insured. Each insurance policy carried and maintained pursuant to this Agreement shall contain a provision to the effect that the insurance company shall not cancel the policy or modify it materially or adversely to the interest of the Lessor without first giving written notice thereof to Lessor at least 30 days in advance of such change of status. QUIET ENJOYMENT AND TERMINATION OF LESSOR'S INTEREST: To secure Lessee's obligations hereunder, Lessor is granted a security interest in the Property, including substitutions, repairs, replacements and renewals, and the proceeds thereof, which is a first lien thereon. Lessee hereby authorizes Lessor to file all financing statements which Lessor deems necessary or appropriate to establish, maintain and perfect such security interest. Provided there does not exist an Event of Default as defined herein, the Lessee shall have the right of quiet enjoyment of the Property throughout the Lease Term. If Lessee shall have performed all of its obligations and no default shall have occurred and be continuing under this Agreement, and this Agreement shall not have been earlier terminated with respect to the Property, then, at the end of the Lease Term with respect to any item of Property, Lessor's interest in such Property shall terminate. Unless otherwise required by law, title to the Property shall be in the name of Lessee, subject to Lessor's interest hereunder, TAX EXEMPTION: The parties contemplate that interest payable under this Agreement will be excluded from gross income for federal income tax purposes under Section 103 of the Internal Revenue Code of 1986, as amended (the "Code"). The tax-exempt status of this Agreement provides the inducement for the Lessor to offer financing at the Interest rate set forth herein. Therefore, should this Agreement be deemed by any taxing authority not to be exempt from taxation, Lessee agrees that the interest rate shall be adjusted, as of the date of loss of tax exemption, to an interest rate calculated to provide Lessor or its assignee an after tax yield equivalent to the tax exempt rate and Lessor shall notify Lessee of the taxable rate. Provided, however, that the provision of the preceding sentence shall apply only upon a final determination that the interest payments are not excludable from gross income under Section 103(a) of the Code, and shall not apply if the determination is based upon the individual tax circumstances of the Lessor, or a finding that the party seeking to exclude such payments from gross income is not the owner and holder of the obligation under the Code. REPRESENTATIONS AND WARRANTIES OF LESSEE: Lessee hereby represents and warrants to Lessor that: (a) Lessee is a State, possession of the United States, the District of Columbia, or political subdivision thereof as defined in Section 103 of the Code and Treasury Regulations and Rulings related thereto. If Lessee is incorporated, it is duly organized and existing under the Constitution and laws of Its jurisdiction of incorporation and will do or cause to be done all things necessary to preserve and keep such organization and existence in full force and effect. (b) Lessee has been duly authorized by the Constitution and laws of the applicable jurisdiction and by a resolution of its governing body (which resolution, if requested by Lessor, is attached hereto), to execute and deliver this Agreement and to carry out its obligations hereunder. (c) All legal requirements have been met, and procedures have been followed, including public bidding, in order to ensure the enforceability of this Agreement. (d) The Properly will be used by Lessee only for essential governmental or proprietary functions of Lessee consistent with the scope of Lessee's authority and will not be used in a trade or Page 1 of 2 business of any person or entity, by the federal government or for any personal, family or household use. Lessee's need for the Property is not expected to diminish during the term of the Agreement. (e) Lessee has funds available to pay Lease Payments until the end of its current appropriation period, and it intends to request funds to make Lease Payments in each appropriation period, from now until the end of the term of this Agreement. (f) The Lessee shall comply at all times with all applicable requirements of the Code, including but not limited to the registration and reporting requirements of Section 149, to maintain the federal tax-exempt status of the Agreement. The Lessee shall maintain a system with respect to this Agreement, which tracks the name, and ownership interest of each assignee who has both the responsibility for administration of, and ownership interest in this Agreement. (g) Lessee's exact legal name is as set forth on the first page of this Agreement. Lessee will not change its legal name in any respect without giving thirty (30) days prior written notice to Lessor. INDEMNIFICATION OF LESSOR: To the extent permitted by law, Lessee shall indemnify and save Lessor harmless from and against all claims, losses, costs, expenses, liability and damages, including legal fees and expenses, arising out of (a) the use, maintenance, condition or management of, the Property by Lessee, (b) any breach or default on the part of Lessee in the performance of any of its obligations under this Agreement or any other agreement made and entered in connection with the lease of the Property, (c) any act of negligence of Lessee, or its successors or assigns, or any of its agents, contractors, servants, employees, or licensees with respect to the Property, (d) the acquisition, delivery, and acceptance of the Property, (a) the actions of any other party including, but not limited to, the ownership, operation, or use of the Property by Lessee, or (f) Lessors exercise and performance of its powers and duties hereunder. No indemnification will be made for negligence or breach of duty under this Agreement by Lessor, its directors, officers, agents, employees, successors, or assignees. Lessee's obligations under this Section shall remain valid and binding notwithstanding termination or assignment of this Agreement. NON -APPROPRIATION: If sufficient funds are not appropriated to make Lease Payments under this Agreement, this Agreement shall terminate and Lessee shall not be obligated to make Lease Payments under this Agreement beyond the then current fiscal year for which funds have been appropriated. Upon such an event, Lessee shall, no later than the end of the fiscal year for which Lease Payments have been appropriated, deliver possession of the Property to Lessor. If Lessee fails to deliver possession of the Property to Lessor, the termination shall nevertheless be effective but Lessee shall be responsible for the payment of damages in an amount equal to the portion of Lease Payments thereafter coming due that is attributable to the number of days after the termination during which the Lessee fails to deliver possession and for any other loss suffered by Lessor as a result of Lessee's failure to deliver possession as required. Lessee shall notify Lessor in writing within seven (7) days after the failure of the Lessee to appropriate funds sufficient for the payment of the Lease Payments, but failure to provide such notice shall not operate to extend the Lease Term or result in any liability to Lessee. ASSIGNMENT BY LESSEE: Without Lessor's prior written consent, Lessee may not, by operation of law or otherwise, assign, transfer, pledge, hypothecate or otherwise dispose of the Property, this Agreement or any interest therein. ASSIGNMENT BY LESSOR: Lessor may assign, sell or encumber all or any part of this Agreement, the Lease Payments and any other rights or interests of Lessor hereunder. Such assignees may include trust agents for the benefit of holders of certificates of participation. EVENTS OF DEFAULT: Lessee shall be in default under this Agreement upon the occurrence of any of the following events or conditions ("Events of Default"), unless such Event of Default shall have been specifically waived by Lessor in writing: (a) Default by Lessee in payment of any Lease Payment or any other indebtedness or obligation now or hereafter owed by Lessee to Lessor under this Agreement or in the performance of any obligation, covenant or liability contained in this Agreement and the continuance of such default for ten (10) consecutive days after written notice thereof by Lessor to Lessee, or (b) any warranty, representation or statement made or furnished to Lessor by or on behalf of Lessee proves to have been false in any material respect when made or fumished, or (c) actual or attempted sale, lease or encumbrance of any of the Property, or the making of any levy, seizure or attachment thereof or thereon, or (d) dissolution, termination of existence, discontinuance of the Lessee, insolvency, business failure, failure to pay debts as they mature, or appointment of a receiver of any part of the property of, or assignment for the benefit of creditors by the Lessee, or the commencement of any proceedings under any bankruptcy, reorganization or arrangement laws by or against the Lessee. REMEDIES OF LESSOR: Upon the occurrence of any Event of Default and at any time thereafter, Lessor may, without any further notice, exercise one or more of the fallowing remedies as Lessor in its sole discretion shall elect: (a) terminate the Agreement and all of Lessee's rights hereunder as to any or all items of Property; (b) proceed by appropriate court action to personally, or by its agents, take possession from Lessee of any or all items of Property wherever found and for this purpose enter upon Lessee's premises where any item of Property is located and remove such item of Property free from all claims of any nature whatsoever by Lessee and Lessor may thereafter dispose of the Property; provided, however, that any proceeds from the disposition of the Property in excess of the sum required to (i) pay to Lessor an amount equal to the total unpaid principal component of Lease Payments under the Property Schedule, including principal component not otherwise due until future fiscal years, (ii) pay any other amounts then due under the Property Schedule and this Agreement, and (iii) pay Lessor's costs and expenses associated with the disposition of the Property and the Event of Default (including attorneys fees), shall be paid to Lessee or such other creditor of lessee as may be entitled thereto, and further provided that no deficiency shall be allowed against Lessee; (c) proceed by appropriate court action or actions to enforce performance by Lessee of its obligations hereunder or to recover damages for the breach hereof or pursue any other remedy available to Lessor at law or in equity or otherwise; (d) declare all unpaid Lease Payments and other sums payabte hereunder during the current fiscal year at the Lease Term to be immediately due and payable without any presentment, demand or protest and 1 or take any and all actions to which Lessor shall be entitled under applicable law. No right or remedy herein conferred upon or reserved to Lessor is exclusive of any right or remedy herein or at law or in equity or otherwise provided or permitted, but each shall be cumulative of every other right or remedy given hereunder or now or hereafter existing at law or in equity or by statute or otherwise, and may be enforced concurrently therewith or from time to time. Lessee agrees to pay to Lessor or reimburse Lessor for, in addition to all other amounts due hereunder, all of Lessor's costs of collection, including reasonable attorney fees, whether or not suit or action is filed thereon. Lessee and Lessor hereby irrevocably waive all right to trial by jury in any action, proceeding or counterclaim (whether based on contract, tort or otherwise) arising out of or relating to this Agreement. NOTICES: All notices, and other communications provided for herein shall be deemed given when delivered or mailed by certified mail, postage prepaid, addressed to lessor or Lessen at their respective addresses set forth herein or such other addresses as either of the parties hereto may designate in writing to the other from time to time for such purpose. AMENDMENTS AND WAIVERS: This Agreement and the Property Schedule executed by Lessor and Lessee constitute the entire agreement between Lessor and Lessee with respect to the Property and this Agreement may not be amended except in writing signed by both parties. CONSTRUCTION: This Agreement shall be governed by and construed in accordance with the laws of the Lessee's State. Titles of sections of this Agreement are for convenience only and shall not define or limit the terms or provisions hereof. Time is of the essence under this Agreement. This Agreement shall inure to the benefit of and shall be binding upon Lessor and Lessee and their respective successors and assigns. This Agreement may be simultaneously executed in counterparts, each shall be an original with all being the same instrument. Page 2 of 2 EXHIBIT A Property Description to Tax Exempt Lease/Purchase Agreement No: 22247801 Description Qty Equipment Detail Sarin 4018 5 Platen Cover Paper Bank (500 x 2) Cabinets — one ADA Coinlbill unit included with copiers CMS interface. Coin/bill units will escrow funds. Kyocera 1920N printers 2 Black & White printers CMS DigiNet Print Release Stations 2 Coin/bill unit. Coin/bill units will escrow funds. Office supply machine 1 Microform machines 2 C1 read only 1 read and print Microform machine — digital 1 Sharp AR 286 1 Staff copier Color copiers 2 Refurbished copiers 4 Coin/bill units Kyocera 1920N printers 4 Typewriter 1 CMS DigiNet Print Release Station 1 Oakview with coin/bill unit CMS DigiNet/PC Cop Unlimited client license Property Schedule to Tax -Exempt Lease/Purchase Aureement This Property Schedule is entered into pursuant to Tax -Exempt Lease/Purchase Agreement No. 22247801 dated as of February 11, 2005 between Lessor and Lessee. 1. Interpretation. The terms and conditions of the Tax -Exempt Lease/Purchase Agreement (the "Agreement') are incorporated herein. 2. Property Description . The Property subject to this Property Schedule is described in Exhibit A, attached hereto. 3. Term and Payments. Lease Term and Lease Payments are per the table below. If the Payment Due Dates are not defined, they shall be defined as the first day of each month in the table below commencing with the Acceptance Date as stated in the Certificate of Acceptance, attached as Exhibit B, hereto. If the parties enter into an escrow agreement for the acquisition of the Property, then the escrow agreement shall be attached hereto as Exhibit D. In lieu of the Acceptance Date for commencement of Lease Payments, the date of deposit of the Property Cost into the escrow by Lessor shall be used. 4. Expiration. Lessor, at its sole determination, may choose not to accept this Property Schedule if the fully executed, original Agreement (including this Property Schedule and all ancillary documents) are not received by Lessor at its place of business by March 10, 2005 5, Property Cost. The total acquisition cost of the Property is $104,924.89 6. Ooinion of Counsel. Lessee has provided the opinion of its legal counsel substantially in the form as attached as Exhibit C, hereto. Payment No. Payment Due Date Lease Payment Principal Portion Interest Portion Concluding Balance (with Lease Payment on Due Date SEE ATTACHED EXHIBIT D IN WITNESS WHEREOF, Lessor and Lessee have caused this Property Schedule to be executed in their names by their duly authorized representatives. l Lessor: IFC CRf1DIT CORPORATION B: Name: Title: Le*ee(C1_JYPF HUNTINGTON BEACH B Name: Ron Hayden Title: Director of Library Attest: B Name: Title: EXHIBIT B Certificate of Acceptance to Tax -Exempt Lease/Purchase Agreement No: 22247801 This Certificate of Acceptance is pursuant to Tax -Exempt Lease/Purchase Agreement dated as of February 11, 2005 and the related Property Schedule, between Lessor and Lessee. (the "Agreement"). 1. Property Acceptance. Lessee hereby certifies and represents to Lessor that the Property referenced in the Agreement has been acquired, made, delivered, installed and accepted as of the date indicated below. Lessee has conducted such inspection and/or testing of the Property as it deems necessary and appropriate and hereby acknowledges that it accepts the Property for all purposes. Lessee will immediately begin making Lease Payments in accordance with the times and amounts specified herein. LESSOR MAKES NO (AND SHALL NOT BE DEEMED TO HAVE MADE ANY) WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE DESIGN, OPERATION OR CONDITION OF, OR THE QUALITY OF THE MATERIAL, EQUIPMENT OR WORKMANSHIP IN, THE PROPERTY, ITS MERCHANTABILITY OR ITS FITNESS FOR ANY PARTICULAR PURPOSE, THE STATE OF TITLE THERETO OR ANY COMPONENT THEREOF, THE ABSENCE OF LATENT OR OTHER DEFECTS (WHETHER OR NOT DISCOVERABLE), AND LESSOR HEREBY DISCLAIMS THE SAME; IT BEING UNDERSTOOD THAT THE PROPERTY IS LEASED TO LESSEE "AS IS" ON THE DATE OF THIS AGREEMENT OR THE DATE OF DELIVERY, WHICHEVER IS LATER, AND ALL SUCH RISKS, IF ANY, ARE TO BE BORNE BY LESSEE. 2. Bank Qualification. Lessee designates this Property Schedule as a "qualified tax-exempt obligation" as defined in Section 265(b)(3)(B) of the Internal Revenue Code of 1986, as amended. Lessee reasonably anticipates issuing tax-exempt obligations (excluding private activity bonds other than qualified 501(c)(3) bonds and including all tax-exempt obligations of subordinate entities of the Lessee) during the calendar year this Property Schedule was funded, in an amount not exceeding $10,000,000. Lessee initial here, only if Bank Qualification is applicable. IN WITNESS WHEREOF, Lessee has caused this Certificate of Acceptance to be executed by their duly authorized representative. Acceptance Hate: Lessee: CITY HUNTINGTON BEACH B ! � N/0_5 Name: Ron Ha den Title: Director of Library M� 4° TTY Jennifer McGrath City Attorney February 10, 2005 CMS, Inc. 1571 N. E Street San Bernadino, CA 92405 OFFICE OF CITY ATTORNEY P.O. Box 190 2000 Main Street Huntington Beach, California 92648 Telephone: (714) 536-5555 Facsimile: (714) 374-1590 Re: Tax Exempt Lease/Purchase Agreement dated CMS, Inc, as Lessor, and City of Huntington Beach, as Lessee Ladies and Gentlemen: Paul D'Alessandro, Assistant City Attorney Scott Field, Assistant City Attorney Lee Burke, Deputy City Attorney John Fujii, Deputy City Attorney Lennie Mulvihill, Deputy City Attorney Sarah Sutton, Deputy City Attorney 2005 between I am City Attorney for the City of Huntington Beach, California, a municipal corporation and charter city duly organized and existing under and by virtue of the Constitution and the laws of the State of California. This opinion is delivered in connection with the Tax Exempt Lease/Purchase Agreement between CMS, Inc., (the "Lessor"), and City of Huntington Beach (the "Lessee") dated , 2005. All capitalized terms herein shall have the same meaning as in the foregoing Agreement. In rendering the opinion set forth herein, I have made no search, inquiry, investigation or other examination concerning the records or files of any court, public board or body, or other public records, other than the Lessee, and my opinion as expressed herein does not extend to any matter which might be disclosed as a result of any further search, inquiry, investigation or other examination. Whenever a statement herein is qualified "to the best of my knowledge," it is intended to indicate that, during the course of my representation of the Lessee in connection with this transaction, no information that would give me actual knowledge of the inaccuracy of such statement has come to my attention. I have not undertaken any independent investigation to determine the accuracy of such statements, and any limited inquiry undertaken by me during the preparation of this opinion letter should not be regarded as such investigation. No inference as to my knowledge of any matters bearing on the accuracy of any such statements should be drawn from the fact of my representation of the Lessee. My opinion set forth herein does not extend to, and I express no opinion herein with respect to, (a) any laws of any jurisdictions (including any federal law), other than the laws of the State of California, and (b) any matters covered by the securities, usury or tax laws, decisions, rules or regulations of any jurisdiction. Based on the foregoing, I am of the opinion that: PDA/051etters/CMS letter opinion of lessee's counsel CMS, Inc. Page 2 2/ 11 /05 (1 } Lessee is a public body corporate and politic, duly organized and existing under the laws of the State, and has a substantial amount of one or more of the following sovereign powers: (a) the power to tax, (b) the power of eminent domain, and (c) police power; (2) Lessee has the requisite power and authority to purchase the Property referenced in the Agreement, to execute and deliver the Agreement, and to perform its obligations under the Agreement; (3) The Agreement and the other documents either attached thereto or required therein have been duly authorized, approved and executed by and on behalf of Lessee, and the Agreement is a valid and binding obligation of Lessee enforceable in accordance with its terms; (4) The authorization, approval and execution of the Agreement and all. other proceedings of Lessee relating to the transactions contemplated thereby have been performed in accordance with all open meeting laws, public bidding laws and all other applicable state laws; and (5) To the best of my knowledge, and without exercising any investigation or due diligence, there is no proceeding pending or threatened in any court or before any governmental authority or arbitration board or tribunal that, if adversely determined, would adversely affect the transactions contemplated by the Agreement or the security interest of Lessor or its assigns, as the case may be, in the Equipment. Lessor, its successors and assigns, including without limitation any registered owners, and any counsel rendering an opinion on the tax-exempt status of the interest components of Lease Payments are entitled to rely on this opinion. Very truly yours, JENNIFER MCGRATH, City Attorney PDA/05laters/CMS letter opinion of lessee's counsel EXHIBIT D Page 1 City of Huntington Beach Compound Period ........: Monthly Nominal Annual Rate ....: 5.632 % Effective Annual Rate ...: 5.780 % Periodic Rate .................: 0.4694 % Daily Rate ......................: 0.01543 % CASH FLOW DATA Event Start Date Amount Number Period End Date 1 Loan 03/10/2005 104,924.89 1 2 Payment 04/10/2005 2,010.60 60 Monthly 03/10/2010 AMORTIZATION SCHEDULE - Normal Amortization Date Payment Interest Principal Balance Loan 03/10/2005 104,924.89 1 0411012005 2,010,60 492.47 1,518.13 103,406.76 2 05/10/2005 2,010.60 485.35 1,525.25 101,881.51 3 06/10/2005 2,010.60 478.19 1,532.41 100,349.10 4 07/10/2005 2,010.60 471.00 1,539.60 98,809.50 5 08110/2005 2,010.60 463.77 1,546.83 97,262.67 6 09/10/2005 2,010.60 456.51 1,554.09 95,708.58 7 10/10/2005 2,010.60 449.21 1,561.39 94,147.19 8 11/10/2005 2,010.60 441.89 1,568.71 92,578.48 9 12/10/2005 2,010.60 434.52 1,576.08 91,002.40 2005 Totals 18,095.40 4,172.91 13,922.49 10 01/10/2006 2,010.60 427.13 1,583.47 89,418.93 11 02/10/2006 2,010.60 419.69 1,590.91 87,828.02 12 03/10/2006 2,010.60 412.23 1,598.37 86,229.65 13 04/10/2006 2,010.60 404.72 1,605.88 84,623.77 14 05/10/2006 2,010.60 397.19 1,613.41 83,010.36 15 06/10/2006 2,010.60 389.61 1,620.99 81,389.37 16 07/10/2006 2,010.60 382.01 1,628.59 79,760.78 17 08/10/2006 2,010.60 374.36 1,636.24 78,124.54 18 09/10/2006 2,010.60 366.68 1,643.92 76,480.62 19 10110/2006 2,010.60 358.97 1,651.63 74,828.99 20 11/10/2006 2,010,60 351.21 1,659.39 73,169.60 21 12/10/2006 2,010.60 343.43 1,667.17 71,502.43 2006 Totals 24,127.20 4,627.23 19,499.97 22 01/10/2007 2,010.60 335.60 1,675.00 69, 827.43 23 02/10/2007 2,010.60 327.74 1,682.86 68,144.57 24 03/10/2007 2,010.60 319.84 1,690.76 66,453.81 25 04/10/2007 2,010.60 311.91 1,698.69 64,756.12 26 05/10/2007 2,010.60 303.93 1,706.67 63,048.45 27 06/10/2007 2,010.60 295.92 1,714.68 61,333.77 02/02/2005 Page 2 City of Huntington Beach Date Pavment Interest Principal Balance 28 07/10/2007 2,010.60 287.87 1,722.73 59,611.04. 29 08/10/2007 2,010.60 279.79 1,730.81 57,880.23 30 09/10/2007 2,010.60 271.66 1,738.94 56,141.29 31 10/10/2007 2,010.60 263.50 1,747.10 54,394.19 32 11/10/2007 2,010.60 255.30 1,755.30 52,638.89 33 12110/2007 2,010.60 247.06 1,763.54 50,875.35 2007 Totals 24,127.20 3,500.12 20,627.08 34 01 /10/2008 35 02/10/2008 36 03/10/2008 37 04/10/2008 38 05/10/2008 39 06/10/2008 40 07/10/2008 41 08/10/2008 42 0911012008 43 10/10/2008 44 11 /10/2008 45 12/10/2008 2008 Totals 46 01/10/2009 47 02/10/2009 48 03/10/2009 49 04/10/2009 50 05/10/2009 51 06/10/2009 52 07/10/2009 53 08/10/2009 54 09/10/2009 55 10/10/2009 56 11110/2009 57 12/10/2009 2009 Totals 2,010.60 2,010.60 2,010.60 2,010.60 2,010.60 2,010.60 2,010.60 2,010.60 2,010.60 2,010.60 2,010.60 2,010.60 24,127.20 2,010.60 2,010.60 2,010.60 2,010.60 2,010.60 2,010.60 2,010.60 2,010.60 2,010.60 2,010.60 2,010.60 2,010.60 24,127.20 238.79 230.47 222.12 213.72 205.29 196.81 188.30 179.75 171.15 162.52 153.85 145.13 2,307.90 136.38 127.58 118.74 109.86 100.94 91.98 82.97 73.93 64.84 55.70 46.53 37.31 1,046.76 1,771.81 1,780.13 1,788.48 1,796.88 1,805.31 1,813.79 1,822.30 1,830.85 1,839.45 1,848.08 1,856.75 1,865.47 21,819.30 1,874.22 1,883.02 1,891.86 1,900.74 1,909.66 1,918.62 1,927.63 1,936.67 1,945.76 1,954.90 1,964.07 1,973.29 23,080.44 58 01/10/2010 2,010.60 28.05 1,982.56 59 02/10/2010 2,010.60 18.74 1,991.86 60 03/10/2010 2,010.60 9.40 2,001.20 2010 Totals 6,031.80 56.19 5,976.61 Grand Totals 120,636.00 15,711.11 104,924.89 49,103.54 47,323.41 45,534.93 43,738.05 41,932.74 40,118.95 38,296.65 36,465.80 34,626.35 32,778.27 30,921.52 29,056.05 27,181.83 25,298.81 23,406.95 21,506.21 19,596.55 17,677,93 15,750.30 13,813.63 11,867.87 9,912.97 7,948.90 5,975.61 3,993.06 2,001.20 0.00 02/02/2005 Page 3 City of Huntington Beach Last interest amount increased by 0.01 due to rounding. Schedule 1 SECURED PARTY: IFC Credit Corporation DEBTOR: City of Huntington Beach This financing statement covers all of Debtor's right, title and interest, whether now owned or hereafter acquired, in and to the equipment leased to Debtor under Property Schedule No. 22247801 to that certain Tax -Exempt Lease Purchase Agreement dated as of February 11, 2005 in each case between Debtor, as lessee, and Secured Party, as lessor, together with all accessions, substitutions and replacements thereto and therefor, and proceeds (cash and non -cash), including, without limitation, insurance proceeds, thereof (but without power of sale), including without limiting, all equipment described on Exhibit A attached hereto and made a part hereof. Debtor has no right to dispose of the equipment. Form 8038-G I Information Return for Tax -Exempt Governmental Obligations (Rev. May 1999) ► Under Internal Revenue Code Section 149 (e) 1" See separate instructions °up."me"'°ilh.tweury Caution: Use Form 8038-GC if the issue price is under $100,000 ntarnal Revenue Sorel e OMB No. 1545-0720 Reporting Authority If Amended Return, Check here ' LJ 7 Issuers name 2 Issuer's employer Identification NTV rnr- NI lNTItJrTn J RFAr`N X X 3 Number and street (or P. O. box if mail is not delivered to Street address) Room/suite 4 Report number 7111 TALBOT AVENUE G 2000 - 5 City, town, or post office, state, and ZIP code 6 Date of Issue HUNTINGTON BEACH, CA 92648 7 Name of issue 8 CUSIP number Tax -Exempt Lease/Purchase Agreement 9 Name and title of officer or legal representative whom the IRS may 10 Telephone number of officer or legal representative X X Type Of Issue check OppliCablO box ea ana enter the Issue pricej See instrucuonns ana auacn scneawe 77 11Education . . . . ...... . . . . . . . ....... . . . . . . . ...... . . . . . . . . . . . . . . . 12 ❑ Health and hospital . . . . .. " ...... . . . . . . . " .... . . . . . .. .. ...... 13 Transportation . . . . . . . . . . . . " ..... . . . . . . ....... . . . . . . ............ 14 Public safety . .... ..... . . . . . . . . ... ... . . . . . . . ...... . . .. . . . . . . . . 15 ❑ Environment (including sewage bonds) . .... .. . . . . . ....... . . . . . . . . . . . . . . . . . 16 Housing ............................................... ... 17 Utilities ..... . . . . . . . . . . . . .... . . . . . . .... . . . . . . . . . . . . . . . " .. . .. 78 ® Other. Describe (see instructions) k aE ui ment8038G* 19 If obligations are TANS or RANs, check box lo ❑ If obligations are BANS, check box ❑ 20 If obligations are in the form of a lease or installment sale, check box 1t 12 13 14 15 16 17 18 104,924.89 Descrintion of Obligations (Comolete for the entire issue for which this form is being filed) (a) Final Maturity date (b) Issue Price ( c) Stated redemption price at maturity (d) Weighted average maturity (e) Yield 21 NIA 1 104,924.89 $ NIA 5,78 uses or rroceeas of tsonas issue itincivaing underwniers- atscounr nua 22 Proceeds used for accrued interest .... " " . " . . . . . . .. .... . . . . . . . . . .. . . . .. . . . .. . .. . . 22 23 Issue Price of entire issue (Enter amount from line 21, column (b) .... . . . . . . ...... . . . . . . . . 23 24 Proceeds used for bond issuance costs (including underwriters' discount) ... . . . . . . . . . . 24 25 Proceeds used for credit enhancement .... . .. . . . . .. . .... . . . . . . . .. .... 25 26 Proceeds allocated to reasonably require reserve or replacement fund . . . . . ...... .. . 26 27 Proceeds used to currently refund prior issues . . . . . ... " ... . . . . . . ........ 27 28 Proceeds used to advance refund prior issues ...... . . . . . . .. . . . . . . . . . . . . 28 29 Total (add lines 24 through 28) ..... . . . . . . . . ...... . . . . . .. ..... . . . . . . . . . . . . . . . . . 29 30 Nonrefundinproceeds of the issue subtract line 29 from line 23 and enter amount here 30 Descrlotion of Refunded Bonds (Complete this part only for refunding bonds. NIA 31 Enter the remaining weighted average maturity of the bonds to be currently refunded . ................. years 32 Enter the remaining weighted average maturity of the bonds to be advanced refunded . . . . . . . . . . . . . . " . " ► years 33 Enter the last dale on which the refunded bonds will be called . . . ..... . . . . . . . . .. .. . . .. ..... . 34 Enter the dates(s) the refunded bonds were issued ► Miscellaneous N/A 35 Enter the amount of the state volume cap allocated to the issue under section 141 (b)(5) . . . . . . . . . . . . . . . . . . 36a tinter the amount of gross proceeds invested or to be invested in a guaranteed investment contract (see instructions) b Enter the final maturity date of the guaranteed investment contract 37 Pooled financings: a Proceeds of this issue that are to be used to make loans to other governmental units b If this issue is a loan made from the proceeds of another tax-exempt issue, check box ❑ and enter the name of the issuer and the date of the issue 1 38 If the issuer has designated the issue under section 265 (b)(3)(e)(i)(lll) (smaller Issuer exception), check box . . . . . . . ...... ❑ 39 If the issuer has elected to pay a penalty in lieu of arbitrage rebate, check box . .... . . . . . . . . . . . . . . . . . . .... ❑ 40 If the issuer has identified a hedge, check box .... . . . . . . . . ..... . . . . . . . ❑ Under penalties of perjury, I declare that I have examined this return and accompanying schedules and statements, and to Please I the best of my knowledge and belief, they are true, correct and complete. Sign Here Februa 11 2005 Ron Hayden, Director of Library Signature of Issuer's authorized representative Date Type or print name and tills For Paperwork Reduction Act Notice, see page 2 of the Instructions. Cat. No. 63773S Form 803843 TO: Insurance Company: Contact Name: Telephone Number: Fax Number: FROM: Customer/Lessee Name Contact Name: Telephone Number: Fax Number: City of Huntington Beach 7111 Talbot Ave Huntington Beach, CA 92648 Ron Hayden 714-375-5105 Request for Certificate of Insurance City of Huntington Beach, is in the process of financing certain equipment from IFC Credit Corporation In order to facilitate this transaction, please submit a Certificate of Insurance to: I FC Credit Corporation 8700 Waukegan Road, Suite 100 Morton Grove, IL 60053 City of Huntington Beach requests that IFC Credit Corporation be listed as: "IFC Credit Corporation and its Assigns" and named ADDITIONAL INSURED as to public liability coverage and SOLE LOSS PAYEE as to property coverage. A copy of said certificate should be forwarded to IFC Credit Corporation as described below. NOTE: Coverage is to include (1) insurance against all risks of physical loss or damage to the Equipment (including theft and collision for Equipment consisting of motor vehicles) and (2) commercial general liability insurance (including blanket contractual liability coverage and products liability coverage) for personal and bodily injury and property damage. In addition, IFC Credit Corporation is to receive 30 days' prior written notice of cancellation or material change in coverage. Please fax this completed information to: IFC Credit Corporation Attention: Lori Yungerman Fax Number: 847-663-6702 Phone Number: 847-663-6700 Please contact the person above if you have any questions. Thank you! INVOICE INSTRUCTIONS City of Huntington Beach BILL TO ADDRESS: BILLING CONTACT: First, M.I. and bast Name; Title: Phone Number: Fax Number: PURCHASE ORDER NUMBER: Invoices require purchase order numbers: YES NO Purchase Order Number: FEDERAL TAX ID NUMBER: EQUIPMENT LOCATION (If different from Billing Address): ADDITIONAL INFORMATION NEEDED ON INVOICE: FEB-17-2005 THU 04.25 Pal APS AFFILIATES FAX NO, 9098857572 P. 02 CERTIFICATF OF L,IA13ILIT1f INSURIAWT 07/0 /200 PRADMIER (520) 571-1900 FAX C52w%S71-9667 THIS CFI{I119CATE IS "UED AS A MATTER OF INFORMATION Koty-Leavitt insurance Agency, snc. ONLY AND CONFERS NO R11414TO UPON THE CERTIFTCATE 6992 E . Broadway Rl vd HOLDER. TNIb CIERTI'FlCATE DOES NOT AMEND, F.X1 END OR Tucson, AZSS710-2603 01 111 4 LT AL.TEFt THE COVERAGE AFFORDED RY THE POLIC IFS BEt f y WSURFRA AFFORDING COVERAGE NAIC N tNt;�Nel3o E^ 14st4 "reci SystelRS Inc - •._ INSUIMR&I AsiC Insurance 1164: CM5 diva Co—, 7fl Pi vem err INWFeR 0. .�... _ 1102 N Anita Ave INSURL'Re! Tucson, AI 8570S*7518 3�9io'� INSUPPlD: �— THE' PbLleles OF 1NSURA NCR LISTED ISEL,OW HAVE SEEN 15SUP0 TO THE INSURIS13 NAAIED A13 WE FOR THE POLICY PERIOD ft"TED, NOTWITHSTANDINI ANY REQUIREMENT. TERM OR CONDITION OF ANY CONYRACl' OR OTHr=R D(TCUMENT WITH IR98PECT TO WHICH TW C1; WIFICATE MAY BE ISSUED OR MAY PPRTAW, THE INSURANCE AFFORD50 BY THE POLICIES DISCFRIMED HEMIN IS SUBJECT TO ALL THIS TERMS, EXOLLtSIONS AND CONDITIONS OF 800H POLICIES. AGGRFr AI E L IMIT;a SHQWN MAY HAVE BEEN REDUCrEo BY PAID CLAIMS, z D AM& asTipk' Of IiFsuRANC15 .._� POLfCY NUMM&M PtiUGI' G*E4C po Y Eit nDN CaITS CitiRF.RAL UARILITY 110006139 07/01/2004 07/01/2005 GAcK OGCVR6wNct a X colIOCRCIALGENeRALLtWILnY tDAic6AK3ETQRk71TJ� ¢ j,OQQ 0 CL74WS MAM L " 1 orWR MED EW (Any afm parwrp) 11 A 1 PERJaQNAL 8 ADV IKJURV i 110002000 GENCPALAGOREGAYC S 21000,000 GENT_ 44McreATC LIMIT APPLM5 PIEk PRODUCTS • GQMNDPA4q S 7 D{10 fA0 POLICY PRO. LOC AUTpIdOKL UAW" COMLiIRlED LIMIT s ANY Aldo Q9INiGLE (FI tlGSE ALL 0YVNCO AUTW BODILY a WI4LC4JLER AUTO$ IP4rPrMr-1 HIK M ALTOS BOCILY rat S NON•OWW,0AUTO9 11 ve"Leldgnl) PFK)PIcR 1ti' DAMAC.Ei $ {PIN IiSGdenty pARA6C1lApIWIV APPROVED AS 7' AUTOOKY•EAAfttWff S ANY AUTO ER MeG FOkM °YMAN ¢A ONLY; IJENN S .�_ AUTO AGO L�%CkI391t>R{lIPE�IJ R UARK ITY 4. . , E:AGIi_DCGURReIGai i QCCI}E{ CLAimsMADE By Pass] D AGGReGATE $ Assistant CityA �.ts� � pL' IkfC'f IFit.E E RE7CNTIOIV ¢ WnQKKAI5 0(WPENBATION AND 1kC STA V*PLCYNrW L IARIIJrV 11W� ROP111 741@lWni�n OR�F IP.CUTIVG 1E L. %F4H ACCIERNT ; E.L. I)OL -EA EMPLOYRs .. S OPP�:4 JMrauRl.K ex UDe II yyeess. IInBCIih a under 5PWAQL ALVu 10N$ below L� L. (518FA3i~ • pOLICYLINR D TNRR !!6 N dP DpERAT101�! OCATIai� / Vt?t�ct.� { p}o0Wi6t�aACD[cD alr EN �relulrel�T! it:PL+GAt PapvL510N$ )pGrations pertatnIng to waled insured #or G12rt icate. holder. r1:ifieats holder, its agents, officers a eaplayees are named as Additional Insured for neral tiability, 110 day notice of Cancellation for Lion -payment of premium. Phis certificate is subject to all policy terMs, conditions, exclusions, forms & eadorsewnts City of iluntin$ton Beach Risk M anlag+amot 2000 Main Street Honti"gton Reach, CA 92648 AC' 0-A 25 (24oymn) DROV1.0 ANY OP T►I$A"YB DEHORIRIM) "xicI6s pE CAHGCLLI_G BEFORE TI tE: l254ihIt ftH PATF THERtOF. T1412 iMM INIQ INSURER M L ENNAVOR TO MAIL 10--' DAY4 WkffTEN NOTIMR TO TM CMrIPIOATE HOWMNAM EUTO THE LEF'C, BUT FAII.URETQ MIL SUCH NOTKCE SMALL. III WO NO 0261GATIOM Oft LIAMITY OF ANY KM UPON TH9 IRSILMEFIL R9 AGIMTf3 09 REPRE$ENTArIVES. -- AUTHORIZED 141Pi'RESBNTATW "CORD CORPORATION 1984 FEB-17-2005 TAU 10:36 AM APS AFFILIATES FAX NO. 999H575 T2 P, 03 CERTHOt.DER COPY STATE R.O. BOX 420W7, SM Ff3ANCISCO, CA 94142-DB07 G00,4J-11NS^TJQN INSEPHANCE FU N O CERTWICATE or- WORKERS' COMPENSATION INSURANCE. IaSUR DAM 11-10-2004 CRWF; 000560 POLICY NiiMSEP: a71-2s04 Ci!RTIFIGATE 0 46 CERTIRCATE EXPIRES: 10-01-20105 1a-az-aa0ilt0-of-aaa� CITY OV HtrNTI9=W BEACH AM 1K.hN=9912M 2000 NAIN aTkneT 119FT 6H MACR CA 92648 TW. is to ocrtiry that wo have issu*d a valid Workoes Componsat on insurance policy in 0 form oppiwed by the Callfomis Inzurance Carnrnissionor to tha eri%)loyer named below for tho poftcy period ktdicaWd. Thia pallcy is not subiact to cancetiation by tho (Fund except span So days advenee t+,frlttGn fiotko to the eoVloyor. We will also give you 30 Mays advarsoa notice MWA this poky to tv=llod prior to its rarmal cXxPratian. INIs cortrT ;a of Murance is ttr3t an Ito poky and dos ro amend, extend or attar the eoveWa c,Uded by dual policy fisted herein. NrAwitltstanding any reguir+emont, corm dr earltlition of arty contract or oihor document with W.TW ta*Idl IhIs %Wwale of h%wM W MAY #re issued or to which ii nfy owWn, Dw insumme afforded by the pdicy described herein is subject to all tho tam, exclusions, and oondliions, of such policy - YAM -+ AAJ,19A,Utu0U- i4:fiCNtAIMF— PrZGMN7 SKPLOWR' S LIABILITY LIMIT INCLUDING DEFZN39 COSTS; �1, 000, 00a PER OCCU"EXCH. MORSM4ENT #0015 RhMITLED ADDITIOX4L INEVRED EA LQYER 13FFECTIVTr 11-10-20Ut SH A'!`TXM2D 'Ifs "D SOWU A PART OV T=9 7DIPICY, N Of AbDT'tYOKM MOR301 CITY OF fiMMNGTON BkACH btNWRSIMANT #204$ Et TITLED z$I E ROL,DERS, NOTICE RFFECTIVR 10-01�2004 IS ATTALRRD TO AM FORX3 A PAUT OF TSIS POLICY. APPROVED AS TO FOW4 JENNIFER MaORATH, City Attornc;, By Pain D'Aie--an&O Assistant City Attorney f'A{f WYCR C&RD %tRTER SYSTEMS TXC 1204 WORTH ANITA TVCe 10N Ag 65705 :oC, 107kT� + 'Pf fl�wrurY6raYe mr �F�+aea 8rAv1@wakvaocnl�tliq,p„4s WC-iofALrTATS CURD 40CUMENT' PRf Ni5 i�d 1 S INSURANCE AND INDEMNIFICATION WAIVER H111 MODIFICATION REQUEST 1. Requested by: Ron Hayden 2. Date: February 11, 2005 3. Name of contractorlpermittee: CMS 4. Description of work to be performed: Copier and Printer Lease 5. Value and length of contract: 60 months - 120 636.60 6. Waiver/modification request: Third party indemnification re nest and cancellation cl 7. Reason for request and why it should be granted: CMS as lessor, lan ua a City,__as lessee to indemnify CMS for damages arising out of use of equipment leased by Cit Carr unwlillng to mo i anguage ee attac e 8. Identify the risks to theity in approving this waiver/modification: Risk of iniury from City's use of this leased eauinrn6rit is very low - eauipment consists of copiers and printers. Depart�i rren1c1 dig Date: APPROVALS Approvals must be obtained in the order listed on this form. Two approvals are required for a request to be granted. Approval from the City Administrator's Office is only required if Risk Management and the City Attorneys Office disagree. 1. isk Management Approved ❑ Denied y� Signature Date 2. City Attorney's Office pproved ElDenie r D� Signature Date 3. City Administrator's Office ❑ Approved ❑ Denied Signature Date If approved, the completed waiver/modification request is to be submitted to the City Attorneys Office along with the contract for approval. Once the contract has been approved, this form is to be filed with the Risk Management Division of Administrative Services r i CMS lease waiver request.doc 2/11/2005 8:24 AM Tax -Exempt Lease/Purchase Agreement, Dated «MasterDatl;» Accepted by Lessor: «Lessor» gLessorAddress» «LessorCt », aLessorstaten ol-es5orPostalCode» B: Name: Title: Date: Agreed to by Lessee: MLessee» «Address1», «Cit », kState» aPosta)Code» B: P73-74 Name: Title: Date: AGREEMENT: Lessor hereby leases to Lessee and Lessee hereby rents from Lessor all the Property described in Property Schedule incorporated herein by reference, upon the terms and conditions set forth herein and as supplemented by the terms and conditions set forth in the Property Schedule. This Tax -Exempt Lease 1 Purchase Agreement together with the Property Schedule shall be defined as the Agreement. LEASE TERM: The Lease Term of the Property listed in the Property Schedule shall commence upon the date of acceptance of the Property by Lessee and continue for the time period set forth in the Property Schedule. This Agreement cannot be canceled or terminated by Lessee except as expressly provided herein. This Agreement is a triple net lease. LEASE PAYMENTS: Lessee shall pay rent to Lessor for the Property in the amounts, and on the dates specified, in the Property Schedule. Lessor and Lessee intend that the obligation of Lessee to pay Lease Payments hereunder shall not in any way be construed to be a debt of Lessee in contravention of any applicable constitutional or statutory limitations or requirements concerning the creation of indebtedness by Lessee, nor shall anything contained herein constitute a pledge of the general tax revenues, funds or monies of Lessee. NO OFFSET: SUBJECT TO THE RIGHT TO NON -APPROPRIATE, THE OBLIGATIONS OF LESSEE TO PAY THE LEASE PAYMENTS DUE UNDER THE PROPERTY SCHEDULE AND TO PERFORM AND OBSERVE THE OTHER COVENANTS AND AGREEMENTS CONTAINED IN THIS AGREEMENT SHALL BE ABSOLUTE AND UNCONDITIONAL IN ALL EVENTS WITHOUT ABATEMENT, DIMINUTION, DEDUCTION, SET-OFF OR DEFENSE, FOR ANY REASON, INCLUDING WITHOUT LIMITATION, ANY DEFECTS, MALFUNCTIONS, BREAKDOWNS OR INFIRMITIES iN THE PROPERTY OR ANY ACCIDENT, CONDEMNATION OR UNFORESEEN CIRCUMSTANCES. THIS PROVISION SHALL NOT LIMIT LESSEE'S RIGHTS OR ACTIONS AGAINST ANY VENDOR. Lessee shall pay when due all taxes and governmental charges assessed or levied against or with respect to the Property. LATE CHARGES: Should Lessee fail to duly pay any part of any Lease Payment or other sum to be paid to Lessor under this Agreement on the date on which such amount is due hereunder, then Lessee shall pay late charges on such delinquent payment from the due date thereof until paid at the rate of 12% per annum or the highest rate permitted by law, whichever is less. MAINTENANCE OF PROPERTY: At all times during the Lease Term, Lessee shall, at Lessee's own cost and expense, maintain, preserve, and keep the Property in good working order, and condition, and from time to time make or cause to be made all necessary and proper repairs, replacements, and renewals to the Property, which shall become part of the Property. The Property is and will remain personal property. INSURANCE OF PROPERTY: All risk of loss to the Property shall be borne by the Lessee. At all times during the Lease Term, Lessee shall, at Lessee's own cost and expense, cause casualty, public liability, and property damage insurance to be carried and maintained (or shall provide Lessor with a certificate stating that adequate self-insurance has been provided) with respect to the Property, sufficient to protect the full replacement value of the Property and to protect from liability in all events for which insurance is customarily available. Lessee shall furnish to Lessor certificates evidencing such coverage throughout the Lease Term. Any insurance policy to be carried and maintained pursuant to this Agreement shall be so written or endorsed as to make losses, if any, payable to Lessee and Lessor as their respective interests may appear. All such liability insurance shall name Lessor as an additional insured. Each insurance policy carried and maintained pursuant to this Agreement shall contain a provision to the effect that the insurance company shall not cancel the policy or modify it materially or adversely to the interest of the Lessor without first giving written notice thereof to Lessor at least 30 days in advance of such change of status. QUIET ENJOYMENT AND TERMINATION OF LESSOR'S INTEREST: To secure Lessee's obligations hereunder, Lessor is granted a security interest in the Properly, including substitutions, repairs, replacements and renewals, and the proceeds thereof, which is a first lien thereon. Lessee hereby authorizes Lessor to file all financing statements which Lessor deems necessary or appropriate to establish, maintain and perfect such security interest. Provided there does not exist an Event of Default as defined herein, the Lessee shall have the right of quiet enjoyment of the Property throughout the Lease Term. If Lessee shall have performed all of its obligations and no default shall have occurred and be continuing under this Agreement, and this Agreement shall not have been earlier terminated with respect to the Property, then, at the end of the Lease Term with respect to any Item of Property, Lessor's interest in such Property shall terminate. Unless otherwise required by law, title to the Property shall be in the name of Lessee, subject to Lessor's interest hereunder. TAX EXEMPTION: The parties contemplate that interest payable under this Agreement will be excluded from gross income for federal income tax purposes under Section 103 of the Internal Revenue Code of 1986, as amended (the "Code"). The tax-exempt status of this Agreement provides the inducement for the Lessor to offer financing at the interest rate set forth herein. Therefore, should this Agreement be deemed by any taxing authority not to be exempt from taxation, Lessee agrees that the interest rate shatt be adjusted, as of the date of Loss of tax exemption, to an interest rate calculated to provide Lessor or its assignee an after tax yield equivalent to the tax exempt rate and Lessor shall notify Lessee of the taxable rate. Provided, however, that the provision of the preceding sentence shall apply only upon a final determination that the interest payments are not excludable from gross income under Section 103(a) of the Code, and shall not apply if the determination is based upon the individual tax circumstances of the Lessor, or a finding that the party seeking to exclude such payments from gross Income is not the owner and holder of the obligation under the Code. REPRESENTATIONS AND WARRANTIES OF LESSEE: Lessee hereby represents and warrants to Lessor that: (a) Lessee is a State, possession of the United Stales, the District of Columbia, or political subdivision thereof as defined in Section 103 of the Code and Treasury Regulations and Rulings related thereto. If Lessee is incorporated, it is duly organized and existing under the Constitution and laws of its jurisdiction of incorporation and will do or cause to be done all things necessary to preserve and keep such organization and existence in full force and effect. (b) Lessee has been duly authorized by the Constitution and laws of the applicable jurisdiction and by a resolution of its governing body (which resolution, if requested by Lessor, is attached hereto), to execute and deliver this Agreement and to carry out its obligations hereunder. (c) All legal requirements have been met, and procedures have been followed, including public bidding, in order to ensure the enforceability of this Agreement. (d) The Property will be used by Lessee only for essential governmental or proprietary functions of Lessee consistent with the scope of Lessee's authority and will not be used in a trade or business of any person or entity, by the federal government or for any personal, family or household use. Lessee's need for the Property is not expected Wage 1 of 2 to diminish during the term of the Agreement. (e) Lessee has funds available to pay Lease Payments until the end of its current appropriation period, and it intends to request funds to make Lease Payments in each appropriation period, from now until the end of the term of this Agreement. (f) The Lessee shall comply at all times with all applicable requirements of the Code, including but not limited to the registration and reporting requirements of Section 149, to maintain the federal tax-exempt status of the Agreement. The Lessee shall maintain a system with respect to this Agreement, which tracks the name, and ownership interest of each assignee who has both the responsibility for administration of, and ownership interest in this Agreement. (g) Lessee's exact legal name is as set forth on the first page of this Agreement. Lessee will not change its legal name in any respect without giving thirty (30) days prior written notice to Lessor. INDEMNIFICATION OF LESSOR: To the extent permitted by law, Lessee shall indemnify and save Lessor harmless from and against all claims, losses, costs, expenses, liability and damages, including legal fees and expenses, arising out of (a) the use, maintenance, condition or management of, the Properly by Lessee, (b) any breach or default on the part of Lessee in the performance of any of its obligations under this Agreement or any other agreement made and entered in connection with the lease of the Property, (c) any act of negligence of Lessee, or its successors or assigns, or any of its agents, contractors, servants, employees, or licensees with respect to the Property, (d) the acquisition, delivery, and acceptance of the Property, (e) the actions of any other party including, but not limited to, the ownership, operation, or use of the Property by Lessee, or (f) Lessor's exercise and performance of its powers and duties hereunder. No indemnification will be made for negligence or breach of duty under this Agreement by Lessor, its directors, officers, agents, employees, successors, or assignees. Lessee's obligations under this Section shall remain valid and binding notwithstanding termination or assignment of this Agreement. NON -APPROPRIATION: It sufficient funds are not appropriated to make Lease Payments under this Agreement, this Agreement shall terminate and Lessee shall not be obligated to make Lease Payments under this Agreement beyond the then current fiscal year for which funds have been appropriated. Upon such an event, Lessee shall, no later than the end of the fiscal year for which Lease Payments have been appropriated, deliver possession of the Property to Lessor. If Lessee fails to deliver possession of the Property to Lessor, the termination shall nevertheless be effective but Lessee shall be responsible for the payment of damages in an amount equal to the portion of Lease Payments thereafter coming due that is attributable to the number of days after the termination during which the Lessee fails to deliver possession and for any other loss suffered by Lessor as a result of Lessee's failure to deliver possession as required. Lessee shall notify Lessor in writing within seven (7) days after the failure of the Lessee to appropriate funds sufficient for the payment of the Lease Payments, but failure to provide such notice shall not operate to extend the Lease Term or result in any liability to Lessee. ASSIGNMENT BY LESSEE: Without Lessor's prior written consent, Lessee may not, by operation of law or otherwise, assign, transfer, pledge, hypothecate or otherwise dispose of the Property, this Agreement or any interest therein. ASSIGNMENT BY LESSOR: Lessor may assign, sell or encumber all or any part of this Agreement, the Lease Payments and any other rights or interests of Lessor hereunder. Such assignees may include trust agents for the benefit of holders of certificates of participation. EVENTS OF DEFAULT: Lessee shalt be in default under this Agreement upon the occurrence of any of the following events or conditions ("Events of Default"), unless such Event of Default shad have been specifically waived by Lessor in writing: (a) Default by Lessee in payment of any Lease Payment or any other indebtedness or obligation now or hereafter owed by Lessee to Lessor under this Agreement or in the performance of any obligation, covenant or liability contained in this Agreement and the continuance of such default for ten (10) consecutive days after written notice thereof by Lessor to Lessee, or (b) any warranty, representation or statement made or furnished to Lessor by or on behalf of Lessee proves to have been false in any material respect when made or furnished, or (c) actual or attempted sale, lease or encumbrance of any of the Property, or the making of any levy, seizure or attachment thereof or thereon, or (d) dissolution, termination of existence, discontinuance of the Lessee, insolvency, business failure, failure to pay debts as they mature, or appointment of a receiver of any part of the property of, or assignment for the benefit of creditors by the Lessee, or the commencement of any proceedings under any bankruptcy, reorganization or arrangement laws by or against the Lessee. REMEDIES OF LESSOR: Upon the occurrence of any Event of Default and at any time thereafter, Lessor may, without any further notice, exercise one or more of the following remedies as Lessor in its sole discretion shall elect: (a) terminate the Agreement and all of Lessee's rights hereunder as to any or all items of Property; (b) proceed by appropriate court action to personally, or by its agents, take possession from Lessee of any or all items of Property wherever found and for this purpose enter upon Lessee's premises where any item of Property is located and remove such item of Property free from all claims of any nature whatsoever by Lessee and Lessor may thereafter dispose of the Property; provided, however, that any proceeds from the disposition of the Property in excess of the sum required to (i) pay to Lessor an amount equal to the total unpaid principal component of Lease Payments under the Property Schedule, including principal component not otherwise due until future fiscal years, (ii) pay any other amounts then due under the Properly Schedule and this Agreement, and (iii) pay Lessor's costs and expenses associated with the disposition of the Property and the Event of Default (including attorneys fees), shall be paid to Lessee or such other creditor of Lessee as may be entitled thereto, and further provided that no deficiency shall be allowed against Lessee; (c) proceed by appropriate court action or actions to enforce performance by Lessee of its obligations hereunder or to recover damages for the breach hereof or pursue any other remedy available to Lessor at law or in equity or otherwise; (d) declare all unpaid Lease Payments and other sums payable hereunder during the current fiscal year of the Lease Term to be immediately due and payable without any presentment, demand or protest and ! or take any and all actions to which Lessor shall be entitled under applicable law. No right or remedy herein conferred upon or reserved to Lessor is exclusive of any right or remedy herein or at law or in equity or otherwise provided or permitted, but each shalt be cumulative of every other right or remedy given hereunder or now or hereafter existing at law or in equity or by statute or otherwise, and may be enforced concurrently therewith or from time to time. Lessee agrees to pay to Lessor or reimburse Lessor for, in addition to all other amounts due hereunder, all of Lessor's costs of collection, including reasonable attorney fees, whether or not suit or action is filed thereon. Lessee and Lessor hereby irrevocably waive all right to trial by jury in any action, proceeding or counterclaim (whether based on contract, tort or otherwise) arising out of or relating to this Agreement. NOTICES: All notices, and other communications provided for herein shall he deemed given when delivered or mailed by certified mail, postage prepaid, addressed to Lessor or Lessee at their respective addresses set forth herein or such other addresses as either of the parties hereto may designate in writing to the other from time to time for such purpose. AMENDMENTS AND WAIVERS: This Agreement and the Properly Schedule executed by Lessor and Lessee constitute the entire agreement between Lessor and Lessee with respect to the Property and this Agreement may not be amended except in writing signed by both parties. CONSTRUCTION: This Agreement shall be governed by and construed in accordance with the laws of the Lessee's Slate. Titles of sections of this Agreement are for convenience only and shall not define or limit the terms or provisions hereof. Time is of the essence under this Agreement. This Agreement shall inure to the benefit of and shall be binding upon Lessor and Lessee and their respective successors and assigns. This Agreement may be simultaneously executed in counterparts, each shall be an original with all being the same instrument. Page 2 of 2 I~ 10:32 FEB 18, 2005 ID: KOTY-LEAUITT INS TEL NO: 571--9667 *17e642 PAGE. 2/2 FAX TRANSNUSSION KOTY-LEAVITT INSURANCE AGENCY 6992 E. Broadway Blvd TUCSON, AZ 85710-2803 (520) 571 - 1900 Fax: 571 - 9667 To: Karen , City of Huntington Beach Date: 22 18/2005 Fax ,#: 714-374-1590 Pages: 1 , including cover page From: Karen Phelps for Tracy Jordan RE: Card Metered Systems Inc Policy #7100062070000 Dear Karen: Pursuant to your request to strikeout the wording "endeavor to" and "but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agency or representatives", we are unable to accommodate your request. The certificate you are in possession of which is dated 7-8-04, must stand. Karen This fax is intended only for the use of the Individual or entity to which it is addressed, and may contain information that is privileged and exempt from disclosure under applicable law. If you are not the intended recipient, any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by collect telephone call and return the original fax to us at the above address by U.S. mail. We will reimburse you for postage.