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HomeMy Public PortalAboutORD15668 • BILL NO. 2017-14 SPONSORED BY COUNCILMAN Graham ORDINANCE NO. l.C-t4fi AN ORDINANCE AUTHORIZING THE CITY OF JEFFERSON, MISSOURI, TO ENTER INTO A LEASE-PURCHASE TRANSACTION WITH BMO HARRIS INVESTMENT COMPANY, LLC, AS LESSOR, WITH RESPECT TO THE ACQUISITION OF CERTAIN EQUIPMENT; AND AUTHORIZING AND APPROVING CERTAIN ACTIONS IN CONNECTION WITH THE EXECUTION AND DELIVERY OF SAID LEASE-PURCHASE TRANSACTION. WHEREAS, the City of Jefferson, Missouri (the "Lessee"), is a political subdivision duly organized under the constitution and laws of the State of Missouri; and WHEREAS, it is hereby determined that a true and real need exists for the acquisition of certain fire apparatus for use by the Lessee (the "Equipment"); and WHEREAS, it is necessary and desirable and in the best interest of the Lessee, as lessee, to enter into a Master Equipment Lease-Purchase Agreement (the "Master Lease") and a Schedule of Equipment thereto ("Schedule No. 1"), with BMO Harris Investment Company, LLC, as lessor (the "Lessor"), for the purposes described therein, including the leasing of the Equipment. NOW, THEREFORE, BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF JEFFERSON, MISSOURI, AS FOLLOWS: Section 1. The Master Lease and Schedule No. 1, in substantially the same forms as presented to this meeting, and the terms and performance thereof are hereby approved, and the Mayor of the Lessee is hereby authorized to execute and deliver the Master Lease and Schedule No. 1 on behalf of the Lessee, with such changes therein as shall be approved by such officer, such approval to be conclusively evidenced by such officer's execution thereof. Section 2. The Escrow Agreement (the "Escrow Agreement"), among the Lessee, the Lessor and the escrow agent named therein, in substantially the same form as presented to this meeting, and the terms and performance thereof are hereby approved, and the Escrow Agreement is hereby authorized to be executed and delivered on behalf of the Lessee by a duly authorized officer of the Lessee, with such changes therein as shall be approved by such officer, such approval to be conclusively evidenced by such officer's execution thereof. Section 3. The Tax Compliance Certificate and Agreement (the "Tax Certificate"), executed by the Lessee, in substantially the same form as presented to this meeting, and the terms and performance thereof are hereby approved, and the Tax Certificate is hereby authorized to be executed and delivered on behalf of the Lessee by a duly authorized officer of the Lessee, with such changes therein as shall be approved by such officer, such approval to be conclusively evidenced by such officer's execution thereof. Section 4. The Lessee shall, and the officers, agents and employees of the Lessee are hereby authorized and directed to take such further action and execute such other documents, certificates and instruments as may be necessary or desirable to carry out and comply,with the intent of this Ordinance, and to carry out, comply with and perform the duties of the Lessee with respect to the Master Lease, Schedule No. 1, the Escrow Agreement and the Tax Certificate. Section 5. This Ordinance shall take effect and be in full force immediately after its adoption by the governing body of the Lessee. Passed: 111\a AI rs 2\171 Approved: l " ay 1(40, ?vii • Presiding Officer Mayor Carrie Tergin ATTEST . : C.2. APPROVED AS TO FORM: • ":ity CIS_ i` City ounselor Conditional Assignment of Purchase Agreement This Conditional Assignment of Purchase Agreement (this "Assignment") is entered into by and between SMO Harris Investment Company LLC ("Lessor") and City of Jefferson, MO ("Lessee") RECITALS A. Lessor and Lessee have entered into that certain Master Equipment Lease -Purchase Agreement dated May 19, 2 1 (the "Lease"), providing for the lease by Lessor to Lessee of certain equipment identified and selected by Lessee (described in schedules, addendums and amendments to the Lease) to be purchased by Lessor from Rosenbauer Minnesota, LLC. B. Lessee has heretofore entered into that certain Proposal dated May 10, 2017 by and between Lessee and Rosenbauer Minnesota, LLC ("Supplier") for the acquisition, delivery and/or installation of (3) Rosenbauer Commander Pumpers with EXT Body, (2) Rosenbauer Commander Rescue Pumpers with EXT Body, (1) Rosenbauer Commander 109' Viper with EXT Body and (1) Rosenbauer Commander 101' Cobra with EXT body (the "Equipment") from Supplier (as amended or supplemented to date, the "Purchase Agreement"), a true and correct copy of which is attached hereto as Exhibit A. Lessee is willing to assign to Lessor all of its rights under the Purchase Agreement to purchase the Equipment upon any Event of Default or Non -Appropriation Event (as defined in the Lease). Supplier has agreed to consent to the assignment of such Purchase Agreement. NOW THEREFORE, for valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: Upon any Event of Default or Non -Appropriation Event under the Lease, Lessee shall irrevocably and unconditionally assign to Lessor all of its right, title and interest (but none of its obligations) in, to and under the Purchase Agreement, including the right to accept delivery of the Equipment, the right to enforce, either in Lessor's or Lessee's name, all warranties of the Supplier with respect to the Equipment, the right to receive any money due or to become due to Lessee in respect of the Equipment pursuant to the terms and conditions of the Purchase Agreement (including any direct or indirect refund or rebate of amounts paid thereunder), and the right to take any other action in connection with the Purchase Agreement and the Equipment which, but for this Assignment, Lessee could have taken. Upon and subject to all of the terms and conditions set forth or referred to in the Lease and herein, Lessor hereby authorizes Lessee, at Lessee's expense, to assert for Lessor's account, all rights and powers of Lessor under any warranties of Supplier concerning the Equipment in accordance with the terms of the Lease and the Purchase Agreement so long as no Event of Default under the Lease exists and, in the event that an Event of Default under the Lease does exist, Lessor shall, upon written notice to Supplier and Lessee, have the sole right, and be entitled, to proceed against the Supplier with regard to any such warranties. The Equipment has been selected solely by Lessee and Lessor's only interest in the Equipment is to lease it to Lessee pursuant to the Lease. Lessee shall at all times remain obligated to Supplier under the Purchase Agreement as if this Assignment had not been executed and to perform all of the duties and obligations of the purchaser or buyer under the Purchase Agreement. The exercise by Lessor of any of the rights assigned hereunder shall not release Lessee from any of its duties or obligations to Supplier under the Purchase Agreement, except to the extent that such exercise by Lessor shall constitute payment or performance of such duties and obligations. Except as otherwise expressly provided in this Assignment with regard to Lessor's obligation to provide Supplier with notice of an Event of Default under the Lease in order to terminate Lessee's rights to assert warranties against Supplier, Lessor shall not be obligated to any person or entity other than the Lessee with respect to the Lease, this Assignment, or any other agreement between Lessor and Lessee concerning the Equipment, which agreements are solely for the benefit of Lessee and not for the benefit of any other party. Lessee hereby covenants and warrants that (a) a true and complete copy of the Purchase Agreement is attached hereto as Exhibit A; (b) the Purchase Agreement is now in full force and effect, is enforceable in accordance with its terms and constitutes the entire agreement between Lessee and Supplier with respect to the purchase of the Equipment; (c) Lessee has not assigned or pledged and will not assign or pledge the Purchase Agreement or any interest therein to any other party; and (d) Lessee will not cause or permit any modification to the Purchase Agreement or to Lessor's rights thereunder without the prior written consent of Lessor. Page i of 3 Confidential f1�111111n111111��a loll 11I1111111111111110 11g111111111111u11111111!1 This Assignment and all documents related thereto each may be executed in any number of counterparts and by facsimile, electronic or digital signature, each of which shall be deemed an original, and all of which together shall be deemed one and the same instrument. THIS ASSIGNMENT SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE OF MISSOURI. THE PARTIES CONSENT TO THE• JURISDICTION OF ANY LOCAL, STATE OR FEDERAL COURT LOCATED WITHIN JEFFERSON, MISSOURI, AND WAIVE ANY OBJECTION RELATING TO IMPROPER VENUE OR FORUM NON CONVE•NIENS. THE RESPECTIVE RIGHTS AND OBLIGATIONS UNDER THIS ASSIGNMENT SHALL INURE TO THE BENEFIT OP AND BE BINDING UPON THE PARTIES' SUCCESSORS AND ASSIGNS. THE PARTIES EXPRCSSLY WAIVE ANY RIGHT TO A TRIAL BY JURY. Nothing in this Assignment shall limit in any way Lessor's rights and remedies under this or any other contract or agreement between Lessor and Lessee. Lessor: l3M0 Harris Investment Company LLC By: Authorized Signature and "['itic Lessee: City �offJJef%f�erson. MO By: Authorized Signatu and Title APPROVED AS TO FORM: City Counselor Page 2 of 3 111111111111111Illi11111111 11111111111111] IMI INIII III 1111111IlliN11I11EIIIIIa1111 Confidential Ex ibit A — Copy of Purchase Agreement Page 3 of 3 Confidential INNEIMINIM11M IMII UIMURME IMOMg1EMIM IMEIMMEM E To: , CITY OF JEFFERSON CITY (FIRE DEPARTMENT) 4M r©senhauer 305 E MILLER ST DATE: 5/10/2017 JEFFERSON CITY MO 65101 We hereby propose and agree to furnish, after your acceptance of this proposal and the proper execution by the City of Jefferson City Fire Department, hereinafter called the BUYER and an officer of Rosenbauer Minnesota, LLC, hereinafter called the COMPANY, the following apparatus and equipment: (3) ROSENBAUER COMMANDER PUMPERS WITH EXT BODY @ $556,472.00 EACH $ 1,669,416.00 (2) ROSENBAUER COMMANDER RESCUE PUMPERS WITH EXT BODY @ $600,147.00 EACH $ 1,200,294.00 (1) ROSENBAUER COMMANDER 109' VIPER WITH EXT BODY @ $895,895.00 EACH $ 895,895.00 (1) ROSENBAUER COMMANDER 101' COBRA WITH EXT BODY @ $990,381.00 EACH $ 990,381.00 TOTAL... $4,755,986.00 FOUR MILLION SEVEN HUNDRED FIFTY-FIVE THOUSAND NINE HUNDRED EIGHTY-SIX DOLLARS All of which are to be built in accordance with the specifications, clarifications and exceptions attached, and which are made a part of this agreement and contract. DELIVERY: The estimated delivery time for the completed apparatus, is to be made 365 days after receipt of and approval of this contract duly executed, subject to all causes beyond the Company's control. The parties agree that time is of the essence and that liquated damages of $250.00 per day shall be imposed for each day beyond 395 days that the apparatus are not ready for a final inspection. The quoted delivery period ends on the date established for the final inspection at the factory. Rosenbauer will notify the customer of the established date for final inspection a minimum of two weeks prior to allow the fire department to make travel plans to visit the factory. Additional days to mount loose equipment, install radios and apply graphics after the truck leaves the factory are not included in the quoted delivery period. The quoted delivery time is based upon our receipt of the specified materials required to produce the apparatus in a timely manner. Rosenbauer must receive complete and accurate sales configuration files from the dealerlcustomer within 45 days of the signed contract. Delays in receiving these files beyond 45 days will cause for the quoted delivery period to be extended. The Company cannot be held responsible for delays due to Acts of God, Labor Strikes, or Changes in Governmental Regulations that result in delayed delivery to our manufacturing facilities of these specified materials. This delivery estimate is based on the Company receiving complete and accurate paperwork from the Buyer and that no changes take place during pre -construction, mid -point inspections or final inspections. Changes required or requested by the Buyer during the construction process may be cause for an increase in the number of days required to build said apparatus as outlined in the attached change order policy. PAYMENT TERMS: Final payment for the apparatus shall be made at time of delivery or pick up of the completed vehicle. It is the responsibility of the Buyer to have full payment ready when the apparatus is complete and ready to deliver. If payment is delayed or delivery is delayed pending payment, a daily finance and storage fee may apply. Upon delivery of the apparatus or upon pickup of the apparatus by the Buyer, Buyer agrees to provide all liability and physical damage insurance. It is further agreed that if on delivery and test, any defects should develop, the Company shall be given reasonable time to correct same. Guarantee of the chassis is subject to the guarantee of the chassis manufacturer. MISCELLANEOUS PROVISIONS: This agreement shall be construed in accordance with the laws of the State of Missouri. The parties agree that any litigation arising from or in connection with any dispute between the parties under this agreement shall be venued in Missouri. The parties agree that this agreement bears a rational relationship to the State of Missouri, and they consent to the personal jurisdiction of such state and further consent and stipulate to venue in the above described court. www.rosenbaueramerica.com info( rosenbaueramerica.com ROSENBAUER SOUTH DAKOTA, LLC. ROSENBAUER MINNESOTA. LLC. ROSENBAUER MOTORS, LLC. 100 THIRD STREET 5181260TH STREET 51@0 260TH STREET P.O. BOX 57 P.O. BOX 549 P.O, BOX 549 LYONS, SOUTH DAKOTA 57041 ' YUAING. MINNESOTA 55092 tiWOMING. MINNESOTA 55092 P: 605.543.5591 P: 651.462.1000 P: 651.4621090 ROSENBAUER AERIALS, LLC. S',T SOUTH BROAD STREET FREMONT. NEBRASKA. 83825 P: 402.321.762E .y NOTE: CHASSIS & AERIAL INTEREST ARE REMOVED FROM THE AMOUNTS LISTED ABOVE. 1F THE AERIAL AND CHASSIS ARE NOT PAID FOR BY THE TIME THEY ARE COMPLETED, ADDITIONAL INTEREST AMOUNTS WILL APPLY. The amount in this proposal shall remain firm for a period of 30 days from the date of same. Respectfully submitted, DEALER: SENTINEL EMERGENCY SOLUTIONS SALES REP:.�� BRIAN BUYER: We accept the above proposal and enter into contract with signature below Ntv4z� Title NTitle C�l� L44=11 LIP Date APPROVED AS TO FORK: r After company receipt of this document signed by the Buyer, the document will be reviewed and upon approval, countersigned by the Company thereby putting the document in force. R SE AUE ll SOTA LLC Title Aelleowr SCA E E 13 , -Ld I"7 Date Page 2of2 Consent to Conditional Assignment of Purchase Agreement Dated: June 9. 201 Reference is made to that certain Proposal dated May 10, 2017, together with all exhibits, schedules, addenda and attachments related thereto (the "Purchase Agreement"), between City of Jefferson, MO ("Assignor") and Rosenbauer Minnesota LLC ("Supplier"). 1. Assignor hereby gives notice to Supplier that it has executed that certain Conditional Assignment of Purchase Agreement with BMO Harris Investment Company LLC ("Assignee") whereby upon the occurrence of certain conditions set forth therein, Assignor shall assign all of Assignor's right, title and interest (but none of its obligations) in, to and under the Purchase Agreement (the "Assignment"). 2. Supplier hereby acknowledges and consents to the Assignment. Supplier hereby acknowledges and agrees that: (i) neither the Assignee nor its assigns shall be liable for any of the obligations or duties of the Assignor under the Purchase Agreement, nor shall the Assignment give rise to any duties or obligations whatsoever on the part of the Assignee owing to the Supplier, (ii) upon payment of the invoice cost of each item of equipment which is the subject of the Purchase Agreement (the "Equipment"), title to such Equipment shall vest in the Assignor, and (iii) all representations, warranties, indemnities and agreements of the Supplier under the Purchase Agreement with respect to the Equipment shall inure to the benefit of the Assignee and its assigns to the same extent as if originally named the buyer therein. 3. Supplier represents and warrants that the Purchase Agreement remains in full force and effect, has not been amended and no event of default (or event which with the passage of time or the giving of notice or both would constitute a default) has occurred thereunder. 4. Supplier acknowledges that Assignee is relying on the assurances provided for herein in extending credit to Assignor in connection with the acquisition of the Equipment. ACKNOWLEDGED AND AGREED: Supplier: Rosenbauer MinnesotaLLC By: AAft6rized Signature Print Name and Title Assignee: BMO Harris Investment Com an 1.I.0 By: jir-' C/ &41, 4 D1 Authorized Signature n PirS � I �t3 tti i �� Print Name and Title Rev 12/2007 Page 1 of I Assignor: City of Jefferson, MO By: Authorized Signature Print Mame and Title Confidential III[�IIIIIIIII{IIIpIIIA II111111Il111ll1ll11111191 lion SIMON1l1111lMl111111 II�IIi�[�I�II�IIU Consent to Conditional Assignment of Purchase Agreement Dated: June 9. 2017 Reference is made to that certain Proposal dated May lx 0, 2017together with all exhibits, schedules, addenda and attachments related thereto (the "Purchase Agreement"), between City of Jefferson, MO ("Assignor') and Rosenbauer Minnesota LLC ("Supplier"). I. Assignor hereby gives notice to Supplier that it has executed that certain Conditional Assignment of Purchase Agreement with BMO Harris Investment Company LLC ("Assignee") whereby upon the occurrence of certain conditions set forth therein. Assignor shall assign all of Assignor's right, title and interest (but none of its obligations) in. to and under the Purchase Agreement (the "Assignment"). 2. Supplier hereby acknowledges and consents to the Assignment. Supplier hereby acknowledges and agrees that: (i) neither the Assignee nor its assigns shall be liable for any of the obligations or duties of the Assignor under the Purchase Agreement, nor shall the Assignment give rise to any duties or obligations whatsoever on the part of the Assignee owing to the Supplier, (ii) upon payment of the invoice cost of each item of equipment which is the subject of the Purchase Agreement (the "Equipment"), title to such Equipment shall vest in the Assignor, and (iii) all representations, warranties, indemnities and agreements of the Supplier under the Purchase Agreement with respect to the Equipment shall inure to the benefit of the Assignee and its assigns to the same extent as if originally named the buyer therein. 3. Supplier represents and warrants that the Purchase Agreement remains in full force and effect, has not been amended and no event of default (or event which with the passage of time or the giving of notice or both would constitute a default) has occurred thereunder. 4. Supplier acknowledges that Assignee is relying on the assurances provided for herein in extending credit to Assignor in connection with the acquisition of the Equipment. ACKNOWLEDGED AND AGREED: Supplier: Rosenbauer Minnesota LLC Assignor: City of Jefferson, MO .r�.r By. By: 1 Authorized Signature Authorized S ature Print Name and Title Assignee: 13MO Harris Investment Company LLC By: Rcv 1212007 Authorized Signature Print Name and Title Page I of 1 CLi-M2, Te o- I,- "tom Pri Name and itle APPROVED AS TO FORM; .ter... try Counselor Confidential 111111Hill Hill Hill 11111[11 111111111]1111111ISl111111 111111nil 111111111[1111@11[11 11[[11[11111111111[]l1111