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HomeMy WebLinkAboutPR 15367: MARK OF DISTINCTION LEASE AGREEMENT - DIGITAL MAILING SYSTEMMemorandum City of Port Arthur, Texas Purchasing Division TO: Stephen Fitzgibbons, City Manager FROM: Shawna Tubbs, Purchasing Manager DATE: July 8, 2009 SUBJECT: Proposed Resolution No. 15367 RECOMMENDATION The Purchasing Division recommends the City Council's approval to enter the City of Port Arthur into a five (5) year lease agreement with Mark of Distinction of Houston, Texas for a DP525 Digital Mailing System with a 301b. Interfaced Scale for the total amount of $20,225. BACKGROUND The projected annual cost for the new mailing machine system and 301b. interfaced scale is based on the five (5) year lease term as follows: July 2009 -June 2010 - $3,809 July 2010 -June 2011- $4,104 July 2011- June 2012 - $4,104 July 2012 -June 2013 - $4,104 July 2013 -June 2014 - $4,104 Total $ 20,225 The above annual costs include the following equipment, software and services: DP525 Mailing System, 301b Postal Scale, Departmental Accounting, Report Printer for Departmental Accounting Reports, Service Agreement (all parts, labor and travel time), Rate Updates for the postal scale, and Postal Meter Rental. BUDGETARY AND FISCAL EFFECT Funds will be allocated from 001-1033-515.51-00 STAFFING EFFECT None SUMMARY The Purchasing Division recommends the City Council's approval to enter the City of Port Arthur into a five (5) year lease agreement with Mark of Distinction of Houston, Texas for a DP525 Digital Mailing System with a 301b. Interfaced Scale for the total amount of $20,225. PR 15367 P. R. N0.15367 07/08/09 DF RESOLUTION NO. A RESOLUTION AUTHORIZING THE CITY TO ENTER INTO A FIVE (5) YEAR LEASE AGREEMENT WITH MARK OF DISTINCTION OF HOUSTON, TEXAS FOR A DP525 DIGITAL MAILING SYSTEM WITH 30 LB. INTERFACED SCALE IN THE AMOUNT OF $20,225. WHEREAS, the Purchasing Division recommends the City Council to authorize the City to enter into a five (5) year lease agreement with the Mark of Distinction, Houston, Texas for a DP525 Digital Mailing System with 301b. Interfaced Scale; and WHEREAS, with the acquirement of this new digital mailing system it will reduce the City's overall operational costs while replacing the City's mailing system with a new, upgraded system; and WHEREAS, the upgraded features of this new digital mailing system will expedite the processing of the mail and give a departmental detailed accounting report; and WHEREAS, the five (5) year lease agreement will cost $20,225 which will include the maintenance, repair, and replacement of parts; and WHEREAS, the City can terminate this lease agreement at its convenience which includes, but is not limited to, funding not being available in any budget cycle with thirty days written notice. The leasing agreement period is for five (5) years. NOW THEREFORE BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PORT ARTHUR: PR 15367 Section 1. That the facts and opinions in the preamble are true and correct. Section 2. That, the City Council deems it is in the best interest of the City to approve and authorize the City to execute a lease agreement with Mark of Distinction, Houston, Texas for the lease of a DP525 Digital Mailing System for the City of Port Arthur, as delineated in Exhibit «A„ Section 3. That, a copy of the caption of this Resolution be spread upon the Minutes of the City Council. READ, ADOPTED, AND APPROVED, this day of July 2009, A.D., at a Regular Meeting of the City Council of the City of Port Arthur, Texas by the following Vote: AYES: Mayor: _ Council members: NOES: PR 15367 ATTEST: City Secretary AP~P`ROVED AS TO FORM: ,V 4 Mark Sokolow, i Attorney~~ V APPROVED FOR ADMINISTRATION: Steve Fitzgibbons, City Manager APR ED AST ND AVAILABILITY De orah Echols, Director of Fin ce Shawna Tubbs, Purchasing M ager AS AGREED Mark of Distinction Mayor PR 15367 "EXHIBIT A" PR 15367 ~~ ~ ~ ~ Lease Agreement Number Dealer Name Mark of Distinction - 194 FULL LEGAL NAME OF LESSEE DBA NAME Port Arthur Ci of BILLING ADDRESS 444 4th St CITY STATE Port Arthur TX ZIP + 4 PHONE # CONTACT NAME DEALER INVOICE NUMBER INVOICE DATE 77640 409-983-8160 Deborah Freeman Shauna Tubbs • N• E UIPMENT MODEL & DESCRIPTION SERIAL NUMBER 1 _ DP525 w/30 Ib postal scale w/accounting report printer Equipment Location (if different from Billing Address) Lease Term 60 # of Pa ments Total Lease Pa ment a livable taxes not included Frequency x Monthly _ Quarterly _ Other First 5 $283.00 Initial Payment of $ Received Next 55 $342.00 Next Included in your payment: x Equipment Maintenance x Software Maintenance x Intellilink'"'/Meter Seca Ra id Recove Pro ram Yes x No If No I will rovide evidence insurance as noted in Para rah 16 Purchase O tion at End of Term: Fair Market Value ~ r • By your signature below, you acknowledge that you have read and agree to all applicable terms and conditions set forth on page 2 and are authorized to sign the agreement on behalf of the Lessee. Print Name Date Proprietor, I Accepted By: Date I nsideration of a entering int a Lease in rel' ce on this guaranty, the and ned unconditionally and irre bl grantees to Lessor, its s essors and assigns, the promp ment d performance of all exi an ture obligations to Lessor, i ding ease. I agree that (a) t ~ uaranty of payment d not of collection, a that Lessor can ed directly against me persona ithout resorting to any se ity or seeking t lest from Le , (b) I waiv uretyshi efenses including imp ' ent of collateral, f ure roperly perfect a securi intere the collateral, a all notices, including tho ,presentment and (c) Lessor may rep ,extend or otherwi change the s of the Lease hout notice t e and I w' a bound by such changes, and all Lessor's co of en o nt and co ion, including attor y's fees. This guaran survives a bankruptcy of Le finds my administrators, successo and assigns. ligatio under this guaran ue even if Lessee bec mes insolvent or bankrupt r is ischarged from bankrupt agree not to seek to be r id by Lessee in the even must pay Lessor, until u ha n paid all amounts owed. Printed Name By : (Individual) Pdnted Name By: (Individual) Lease Agreement July 09rev TERMS AND CONDITIONS SECAP FINANCE IS NOT AN AGENT OF VENDOR, AND NEITHER VENDOR NOR ANY OF ITS SALESPERSONS OR DEALERS ARE SECAP FINANCE'S AGENTS. THEY HAVE NO AUTHORITY TO SPEAK ON OUR BEHALF OR MAKE ANY CHANGES TO THE LEASE. 1. Definitions. Parties' ReLationshio. The words "you" and "your" mean the Lessee(s). The words "we", "us and "our" refer to Lessor, Secap Finance. "Parties" means SECAP FINANCE and you. The tens "Vendor" means SECAP. The term "Dealer" means the dealer identified on page one. "UGC" means Uniform Commercial Code. The "Equipment", which includes applicable software and/or any other manufacturer equipment listed, was selected by you and supphed by Vendor or through a dealer, not SECAP FINANCE. 2. Lease Aercemen[: Pavments. We agree to lease to you and you agree to lease from us the Equipment listed on page one or idrntified in any attached Equipment Schedule. You agree to pay us the Lease Payments and all other amounts due and payable for the rnCve Lease Tenn, at the Billing Frequency you requested. You agree that all payments will be in advance. The first Lease Payment is due on the date we begin invoicing you. Lease Payments will be due on the same day of each billing period, whether or not we invoice you. All Payments due under this Lease shall be payable only to Secap Finance at P.O. Box 405371, Atlanta GA 30384-5371, Atlanta GA 30353-Ofi60, until we direct you otherwise in writing. THIS LEASE MAY NOT BE CANCELLED OR TERMINATED FOR ANY REASON. ALL PAYMENTS UNDER THIS LEASE ARE UNCONDITIONAL AND ABSOLUTE AND YOU SHALL PAY THEM FOR THE ENTIRE LEASE TERM REGARDLESS OF WHETHER THE EQUIPMENT IS DAMAGED, DESTROYED, DEFECTIVE, UNUSABLE OR BECOMES OBSOLETE, AND REGARDLESS OF ANY DISPUTE WITH, OR CLAIMS AGAINST, SECAP FINANCE, VENDOR, DEALER OR ANY OTHER PARTY. YOUR OBLIGATIONS UNDER THIS LEASE ARE NOT SUBJECT TO DEFENSE, SETOFF, COUNTERCLAIM, ABATEMENT OR REDUCTION FOR ANY REASON. IF YOU HAVE ANY CLAIMS CONCERNING THE EQUIPMENT OR YOUR RELATIONSHIP WITH VENDOR YOU MUST MAKE THEM AGAINST VENDOR OR DEALER, AS APPLICABLE. 3. Lease Term. The term of this Lease is the Initial Lease Term indicated on page one or identified in any attached Equipment Schedule and begins on the date that we receive your executed Acceptance Certificate in the form that we provide to you. The Lease shall terminate after you perform all of your obligations under the Lease. If during the Initial Lease Term, you enter into a new lease (e.g. for upgraded or replacement equipment) which incorporates the remaining payments under this Lease and the new lease is subsequently terminated, we may reinstate this Lease. 4. Eguinment DeGverv and Location. The Equipment will be delivered to the location specified. The Equipment may not be moved to another location without fast obtaining our written consent If we give our consent and you move the Equipment, you will pay the applicable relocation fee and reimburse any costs we incur. 5. Equipment Ownershig• Labeline and UCC Filin . We agree that this [.ease is a "finance lease" governed by UCC Article 2A. SECAP FINANCE is and shall remain the sole owner of the Equipmrnt. You agree to keep the Equipment free from any liens or encumbrances. We may label the Equipment as our property and subject to lease. You authorize us to sign and file a UCC financing statement on your behalf, and do all other acts to protect our interests in the Equipment and lease. Our filing of a UCC financing statement is precautionary only. 6. Assienment. YOU MAY NOT ASSIGN, SELL, TRANSFER OR SUBLET THE EQUIPMENT OR THIS LEASE (COLLECTNELY "ASSIGNMENT)") WITHOUT OUR PRIOR WRITTEN CONSENT. If we agree to an Assignment, you will pay the applicable assignment fee and reimburse us for any costs we incur in connection with that Assignment. We may sell, assign or transfer all or any part of this Lease and/or the Equipment The new owner will have the same rights that we have, but you agree not to assert against them any claims, defenses or set-offs that you may have against us, vrndor, or any dealer. You also agree and acknowledge that any Assignment by us will not materially change your obhgations hereunder. 7. End Of Lease Options: Equipment Return. If no default exists under this Lease, at the expiration of the Initial Lease Tenn, upon 90 days prior written notice, you may either: (a) enter into a new lease on mutually agreeable terms; (b) purchase all (but not less than all) the Equipmrnt "AS IS". "WHERE IS", "with all faults" and with no express or implied warranties for fair mazkct value (which we shall determine in our reasonable judgment); or (c) at your expense, de-install, inspect, test, insure the Equipment for its full replacement value and properly pack the Equipmrnt, by delivering it on board such common carrier with freight prepaid and to such destination within the United States as we may specify. If you have not elected one of the above options by providing the requisite notice, you shall be deemed to have entered into a new month-to-month lease on terms and conditions identical to this Lease except that either party may terminate the new lease on 30 days prior written notice, provided you rcturn the Equipment as required herein. S. Taxes. You agree to pay, and indemnify us for, all charges and taxes which are based on, measured by, imposed on, resultant from or levied upon this Lease, the billing or receiving of Lease Paymrnts, the sale, purchase, personal property ownership, leasing, value, possession, or use of the Equipment, including, without limitation, sales, excise, use, property, ad valorem, stamp, recording, gross receipts or franchise taxes, but excluding taxes nn or measured by our net income. You agree to pay the applicable fee to cover our expenses associated with the administration, billing and tracking of such charges and taxes. Your obligations under this Section commence upon execution and survive termination or cancellation of this Lease. 9. Lis iti[v. WE ARE NOT RESPONSIBLE FOR ANY LOSSES OR INJURIES TO VOU OR ANY THIRD PARTIES CAUSED BY THE EQUIPMENT OR ITS USE. You agree to reimburse us for, and to defrnd us against any costs, exprnses, damages, fines, settlements, dawns or Gabihty arising out of or relating to this Lease or the Equipment, including reasonable attorneys' fees, but excluding those adjudged [o have arisrn solely from our gross negligence or willful misconduct. 10. Eguinment Warranty Information. WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, REGARDING ANY MATTER WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, THE SUITABILITY OF THE EQUIPMENT, ITS DURABILITY, ITS CONDITION, [TS MERCHANTABILITY, ITS FITNESS FOR A PARTICULAR PURPOSE, ITS FREEDOM FROM INFRINGEMENT, OR OTHERWISE. WE LEASE THE EQUIPMENT TO YOU "AS IS," "WHERE IS" AND "WITH ALL FAULTS." WE SHALL NOT BE LIABLE TO YOU AND YOU SHALL NOT MAKE A CLAIM AGAINST US FOR ANY LOSS, DAMAGE (INCLUDING INCH)ENTAL, CONSEQUENTIAL OR PUNITNE DAMAGES) OR EXPENSE OF ANV KIND CAUSED DIRECTLY OR INDIRECTLY BY THE EQUIPMENT. WE HEREBY ASSIGN TO YOU ANY WARRANTY RIGHTS WE HAVE AGAINST VENDOR OR ANY DEALER. 11. Late Pavments/Returned llems. If any Paymrnt under this Lease is not paid in (all on or before its due date, you will be charged the applicable administrative fee assessed on delinquent accounts. You also agree to pay interest on any payment delinquent under this Lease from its due date until paid in full at the lesser of 18 per year or [he maximum rate allowed by law. For each dishonored or returned payment item, check or draft, you will be assessed the applicable returned item fee. 12. Default. You will be in immediate default without notice under this Lease if: (a) you fail to remit any Paymrnt under this Lease whrn due or if you lneach any other obligation under this Lease; (b) you become insolvent, are liquidated, dissolve, merge, transfer substantially a0 of your stock or assets, stop doing business, have a material adverse change to your financial condition, or assign your rights or property for the benefit of creditors; (c) a petition is filed by or against you under any bankruptcy or insolvency law; or (d) you aze in default under any other presrnt or future agreemrnt between you and us, or you and any of our affiliates ("Agreements') 13. Remedies. Upon your default, we may do any or all of the following: (a) cancel this Lease (and any purchase option, lease extension or other rights you may have under this Lease), and any Agreements; (b) accelerate and require immediate payment, as liquidated damages, of all Lease Payments and other sums due under this Lease or due under any Agreements, whether accrued or due in the future; (c) require return of the Equipment: (d) require immediate payment, as compensation for your failure to return the Equipment and not as a penalty, of an amount equal to the remaining value of [he Equipment at the end of [he Initial Lease Term, as determined by us in our reasonable discretion, andior (e) pursue any other remedy we may have at law or in equity. You waive any notice Lease Agreement July 09 of our repossession or disposition of the Equipment. By repossessing the Equipment, we do not waive our right to collect the balance due on the Lease. You shall pay all our costs in enforcing our rights against you. We reserve all of our rights against you even if we do not enforce them at the tune you default. All of our contractual, legal, equitable or other remedies available under this Lease aze cumulative and are not conditioned upon your default continuing. If required, any accelerated Lease Paymrnts and the remaining value will be discounted to present value at the rate then applicable to nearest term U. S. Treasury obligations. 14. Equipment Use. You shall use the Equipment only: (a) for business or commercial purposes, and (b) in the manner specified in the manuals and instructions covering the Equipmrnt. You shall comply with all laws and regulations relating to the Equipment. t5. Equipment Maintenance and Repairs. You shall, at your expense, keep the Equipment in good repair, condition and working order, except for ordinary wear and tear. You shall keep the Equipment eligible for any manufacturer's maintenance certification. You shall permit us to inspect the Equipment and any maintenance records relating to the Equipment during normal business hours. 16. Risk of Loss You assume and agree to bear the rntire risk of loss, theft, destruction or othervnpairmrnt of the Equipment (excluding ordinary wear and teaz) regardless of cause (collectively "Loss") for the rntrre term of this Lease until you rctum the Equipment to us. No Loss shall relieve you of any of your obligations under this Lease. You sha0 immediately notify us in writing of the occurrence of any Loss. You shall, at your expense, keep the Equipmrnt insured against Loss for its full replacement value under a comprehensive policy of insurance or other arrangement satisfactory to us ("Insurance"). You or your agent must call us at 1-g66200-9296 and provide us with such evidence. If you fail to provide such evidence, we may, in our sole discretion, refrain from requiring evidence of Insurance and include the Equipment in our own program (currently called Secap Rapid Recovery) and charge you a fee, which will be separately reflected as an additional charge on our invoices to you. Before including [he Equipment in Secap Rapid Recovery program and charging you [he fee, we will provide written notification reminding you of your obfiga[ions to insure [he Equipment and pr°°id.r widrnce of Insurance. The notification, which may be included in a welcome packet containing other AI~,C4N :nformation, will be deemed received by you a[ the time we place it in the mail, or otherwise presrn[ it to you. If you do not respond with evidence of Insurance within the time specified in [he notification, we may immediately include the Equipment in the Secap Rapid Recovery Program. Notwithstanding the foregoing, if you have enrolled in the Secap Rapid Recovery Program, you need not provide us with proof of insurance. If the Equipment is included in the Secap Rapid Recovery Program and any loss, damage or destruction to the Equipmrnt occurs that does not result from your gross negligence or willful misconduct, we shall (provided you aze not in default under this Lease) repair or replace the Equipment and your Lease obhgations will remain unchanged. Tf we are requred to repair or replace the Equipment under the terms of this paragraph and we fail to do so within 30 days from receipt of written notice of the loss or damage, you may terminate this Lease. Title to the original or any replacement Equipment will at all times remain with us. We will not be liable to you if we terminate the Secap Rapid Recovery Program. By providing the Secap Rapid Recovery Program, we are not offering or selling you insurance; accordingly, state regulatory agencies have not reviewed this Lease, this program or its associated foes, nor are they overseeing our financial condition. 17. Comgu[ation of Lease Payment. You acknowledge that the amount of each Lease Payment is based on the cost to us of purchasing equipment, inclusive of all related expenses, Tess any discount/allowance paid or payable by Vendor or Dealer, plus our customary Origination Fee (see Section 20 below), and any amounts payable by us in connection with the execution of this Lease. Included among the related expenses are any unpaid balances due and/or to become due from any previous lease (including equipment return fees and any other unpaid fees). 1g. Lease Invoices. The amounts we use to compute your Lease Payment and taxes paid by us upon Equipment purchase, are capitalized and paid by you over the Initial Leue Term. If you so requested, your Equipment Maintenance and/or Software Malntrnance payments commence simultaneously with the Initial Lease Term and such payments aze included in your Lease Payment as an accommodation to you and Vendor. Other fees, charges and taxes provided for in this Lease are not included in your Lease Payment and will be separately itemized on your invoice. We rosy increase your Lease Paymrnt if taxes (as set forth in Section 8), or your Equipment Maintenance Agreemrnt charge, increases. 19. Credit and Filine Fees. To the extent permitted by law, you shall pay our applicable fees for. (a) our credit approval process related to [his Lease and (b) any governmental or other filings related to this Lease, including UCC financing statements 20.Orieinatlon Fee. Unless paid by you separately, aone-time fee to cover the origination, documentation, processing and certain other initial costs associated with this Lease is included as a capitalized amount in computing your Lease Payment. 21. Customer Purchase Order. If a purchase order is issued by you, none of its terms and conditions shall modify or supersede the terms and conditions of this Lease. Our failure to object to terms contained in any communication from you will not be a waiver of [he temu se[ forth in this Lease. 22. Initial Lease Pavmenl At our discretion, you shall pay your first Lease Payment upon your execution of this Lease. This payment sha0 be deemed to have bern earned by us when we receive it and shall be applied immediately to your obligation to make your first Lease Payment under this Lease. This payment shall not be refundable [o you under any cvcumstances, including the termination of [his Lease for any reason during the lease term. 23. Customer Waivers. To the extrnt you are permitted by law, you waive all rights and remedies under Article 2A (Sections 508-522) of the UCC. To the extent permitted by law, you also waive any rights you now or later may have under any statute or otherwise which require us to sell, lease or otherwise use any Equipment to reduce our damages including our realization of the remaking value of [he Equipment, or which may otherwise limit or modify any of our rights or remedies. ANY ACTION RELATED TO THIS LEASE WHICH YOU FILE AGAINST US, INCLUDING BREACH OF WARRANTY OR OTHERWISE, MUST BE STARTED WITHIN ONE (1) YEAR AFTER THE EVENT GIVING RISE TO YOUR CLAIM. YOU AND WE HEREBY WANE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION RELATED TO OR ARISING OUT OF THIS LEASE. 24 Miscellaneous. If more than one Lessee is named in this Lease, liability will be joint and several. The use of the singular or the plural herein is not exclusive and the tenses may be used interchangeably as the context requires. You represent that you may lawfully enter into, and perform, this Lease, and that the individuals signing [his Lease on your behalf have all necessary authority. This Lease constitutes the entire agreement between the Parties as to the subjects addressed in this Lease, and representations or statements not included herein are not part of this Lease and are not binding nn the Parties. By executing page one, you agree to furnish financial information which we may request now and in the future, including your tax identification number, and you authorize us to obtain credit reports on you now and in the future. In addition, any principal, owner, officer or guazantor signing on page one or on any documents executed in connection herewith agrees [o furnish financial and other information we may request now and in the future including his or her social security number, and authorizes us to obtain one or more consumer credit reports on him or her in connection herewith and any credit extended as a result hereof. YOU AGREE THAT AN EXECUTED COPY OF THIS LEASE BEARING OUR STAMPED SIGNATURE AND YOUR SIGNATURE (AN ORIGINAL MANUAL SIGNATURE OR SUCH SIGNATURE REPRODUCED BY MEANS OF A RELIABLE ELECTRONIC FORM, SUCH AS PHOTOCOPY, FACSIMILE OR ELECTRONIC SIGNATURE) SHALL BE MARKED "ORIGINAL" BY US AND SHALL CONSTITUTE THE ONLY ORIGINAL DOCUMENT FOR ALL EFFECTNE PURPOSES. ALL OTHER COPIES SHALL BE DUPLICATES. TO THE EXTENT THIS LEASE CONSTITUTES CHATTEL PAPER (AS DEFINED IN THE UGC), NO SECURITY INTEREST IN THIS LEASE MAY BE CREATED EXCEPT BY THE POSSESSION OR TRANSFER OF THE COPY MARKED "ORIGINAL" BY US. THIS LEASE MAY NOT BE AMENDED OR SUPPLEMENTED EXCEPT IN A WRITTEN AGREEMENT SIGNED BY THE PARTIES AND NO PROVISIONS CAN BE WANED EXCEPT BY OUR WRITTEN CONSENT. Our acceptance of any payment or check offered by you as a settlement, or an accord and satisfaction, shall not constitute a waiver of our rights, or an accord and satisfaction, unless accompanied by a separate agreement executed by both parties. TERMS AND CONDITONS the minimum payment shown on the statement. In the event of a partial payment, you will be responsible for INTELLILINKT m SUBSCRIPTION AND METER USACE TERMS AND the unpaid balance of the Account under the terms of this Agreement. 2, Deferred Pavment Terms. Whenever there is an unpaid balance outstanding on the Account which is COND/TIONS not paid in full by the due date shown on your billing statement the Bank will charge you and you a Free [o 1. Definitions. "Intellilink Control Center' means the postage evidencing technology (softwaze and hardware) included as part of the Equipment identified on page one of this Lease, and is identified as the user Control Crn[er with the postal security device embedded therein, and the printer including the printhead, printhead controller, and print maintenance controller. "Meter" shall refer to any postage meter(s) identified on page one, and "USPS License" means a U. S. Postal Service ("USPS") License duly issued by USPS. 2. Usaee: Title: Term. We will keep title to the Intellilink Control Center or Meter, and you may retain possession for the Initial Term and any subsequent ternr(s), for the purpose of processing your mail, only so long as you have a valid USPS License and you comply with (i) these terms and conditions and (u) all applicable USPS regulations. We reserve the right to recover or disable the Intellilink Control Center or Meter and/or terminate the Lease as it relates to the Intellilink Control Center or Meter at any tune and for any reason. You must use only attachments or printing devices authorized by us and only supplies meeting our specifications. Consumable supplies and postage are your responsibility. 3. Maintenance: Inspection: Risk of Loss. We wi0 provide service or replacement during our normal business hours. We reserve the right, in accordance with USPS regulations, to examine the Intellilink Control Center or Meter, by physical or remote inspection, and to allow inspection of same by USPS. You will notify us promptly in advance if the Intellilink Control Center or Meter is to be moved to a different location. 4. Remedies. If you breach these terms and conditions, or if there h any risk that one of your creditors will try to levy upon or attach the Intellilink Control Center or Meter, or if the USPS revokes your USPS License, we may (a) immediately terminate your use of the Intellilink Control Center or Meter and disable and/or recover it (them), and (b) recover all expenses (including reasonable attorneys' fees and interest) incurred in enforcing our rights. 5. Ppsta¢e Purchase. Refill and Refund Arran¢emenh. In order to obtain postage to use in connection with the Intellilink Control Center or Meter, you must contact our POSTAGE BY PHONE6~ data center. Before your postage transaction can be initiated, you must pay for that postage. If you participate rtt any of Pitnty Bowes' postage advance programs, payment will be advanced on your behalf to USPS, subject to repayment by you, all under the temts and conditions of the apphcable postage advance program. There may be a charge for each completed postage refill transaction, depending on which postage payment method you choose, which will be billed periodically and not included in your Total Periodic Paymrnt. ARer termination of the Lease, refunds of unused postage, if any, will be made by USPS in accordance with then curtent USPS regulations and upon verification that there has bern no tampering with the Equipment. SERVICE TERMS AND CONDITIONS L Service Description. If you have elected to have equipment maintenance included in your Total Periodic Payment, your Dealer will provide maintenance and emergency repay services for covered equipmrnt (excluding software) as requved, including new r equivalent to new parts and assemblies needed due to normal wear. If your Equipment is regularly operated more than one eight-horn shift per day, a surcharge will be added to your Service rate. We reserve the right to discontinue service at any time due to excessive cycle count, or your refusal to pay any amounts due under the Lease. To obtain Service you must contact your Dealer during normal working hours (8am - Spm). Depending on your Equipment type and at your Dealer's option, your Equipment may be serviced by (a) replacement with new or reconditioned equipment or (b) on-site service, remote diagnostics or otFsite service. There will be no hourly charges for on-site service unless service is performed outside normal working hours (8am - Spm). Lubricants and other materials needed to service your equipment except consumable supplies, are provided without additional charge. 2. Exclusions. Excluded hereunder is Service made necessary due to negligence or accident damage ¢t transit, virus contamination and loss of data, misuse or abuse, external forces, loss of electrical power, power fluctuation, operator eror, casualty (such as fire, flood, or other natural causes), sabotage, repay or attempted repau by anyone other than your authorized Dealer or the manufacturer, and the use of supplies not meeting manufacturer's specifications. b pay, interest on the unpaid balance of the Account from time to time, for each day from the date the transaction is posted to the Account until the date the unpaid balance is paid in full, at a variable rate equal to the Annual Percentage Rate applicable to the Account from time to time. The Annual Percentage Rate applicable to the Account will be calculated as follows: the Bank will take the greater of (i) 22 % and (ii) the sum of (a) the highest "Prime Rate" published in the "Money Rates" section of TGe Wall Street Journal on the last business day of the month and (b) the mazgin set forth below (the sum of the margin and the Prime Rate is herein called [he "Floating Rate"). The Annual Percentage Rate will be adjusted on a monthly basis based on any fluctuation in the Floating Rate. Any change in the Annual Percentage Rate based on the calculation described in this section will become effective on the first day of your next billing cycle. The margin which will be added to [he Prime Rate to determine the Floating Rate will be 14.75 % (using the Prime Rate in effect as of January 31, 2008, the daily periodic rate would be .056693 % and the corresponding annual percentage rate would be 20.75 % ). The Account balance that is subject to a finance charge each day will include (i) outstanding balances, minus any payments and credits received by the Bank on the Account that day, and (ii) unpaid interest, fees, and other charges on the Account. Each payment that you make will be applied to reduce the outstanding balance of the Account and replenish your available credit line. The Bank may refuse to extend further credit if the amount of a requested charge plus your existing balance exceeds your credit line. 3. Account Charees. Unless prohibited by applicable law, you agree to pay the foes and charges set forth in this Agreement including, without limitation, the fees and charges relating to: (a) transaction fees, if apphcable; (b) your failure to pay m a timely manner; (c) your exceeding your credit line; and (d) fees attributable to the rctum of any checks that you give to us as payment of the Account. 4. Account Cancellation and Suspension. The Bank may at any time close or suspend the Account, and may refirse to allow further charges to the Account. No cancellation or suspension will affect your obligation to pay any amounts you owe under this Agreement. 5, Enforcement If the Bank is required to take coftection action or any other legal action under this Agreement or any other agreement you have with the Bank, you agree to pay all court and collection costs and reasonable attorney's fees. 6. Amendments to this Aereement: Termination. The Bank can amend this Agreement or any of its provisions at any time by written notice to you. Each tune you use the Purchase Power Program, you are signifying your acceptance of this Agreement as then m effect. Any amendment will become effective on the date stated in the notice and will apply to any outstanding balance on the Account. The Bank may terminate the Purchase Power program at any time. The Bank will notify you in [he even[ of any termination. Any outstanding obligation will survive termination of the Purchase Power program. 7. Miscellaneous, The Bank may accept late payments, partial payments or checks and money orders marked "payment in full" without compromising any rights under this Agreement. You may not assign this Agreement. If any provision of [his Agreement is held invalid or unenforceable, all other provision will remain in full force and effect. This Agreement shall be governed by and construed in accordance with the laws of the State of Utah and applicable federal law. 8. USA PATRIOT ACT. To help the government fight the funding of terorism and money laundering activities, Federal law requires financial institutions to obtain, verify and record information that identifies each person who opens an account. Accordingly, the Bank asks that you provide identifying information, including your address and taxpayer identification number. The Bank may also ask for additional identifying information, where appropriate, including asking that your representative who is opening the Account provide hisiher name, address, date of birth, driver's license and/or such other documents and information that will allow the Bank to identify him/her. WARRANTY TERMS AND CONDITIONS 1. Equipment Warranty. The Equipment leased hereunder is warranted to be Ree from defect in material and workmanship and will perform according [o its specifications for ninety (90) days Rom [he date of installation. If a defect al material or workmanship or a failure to performance within specifications occurs within the first 90 days after installation, your Dealer will repair a or, at its option, replace it at not charge to you. There is no wartanty for consumable parts or supplies such as belts, ink, ink rollers, sealer and moistener brushes, bulbs, felts, and sponges or for parts wpm out due to extraordinary use of the Equipment. Not covered by waranty aze repairs or replacements made necessary due to cucumstances including, but not limited to, negligence, misuse, usage which exceeds manufacturer's recommended usage, external forces, loss of electrical power, power Fluctuation, unauthorized service and the use of supplies not meeting manufacturer's specifications or as result of any alteration in the products or the attaching thereto of any equipment not authorized by Secap. 2. Rate Software/PROM Warranty. Rate software and PROM's are warranted to be free Rom defect m material, workmanship or programming for ninety (90) days from the date of installation. The failure of rates embodied in Rate Updates to conform [o published rates as a result of carrier rate changes does not constitute a defect. 3. Disclaimer. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, SECAP AND DEALER MAKE NO WARRANTIES, EXPRESS OR IMPLIED, tNCLU DING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICES FURNISHED HEREUNDER. OUR LIABILITY ARISING OUT OF WHATEVER CAUSE INCLUDING CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR WARRANTY SHALL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER TO US FOR THE EQUIPMENT SERVICES PROVIDED UNDER THIS AGREEMENT. PURCHASE POWERsMAGREEMENT t. How Purchase Power Works, (a) If you are participating in Purchase Power, each time a meter reset, office supply, or other service is ordered through the Purchase Power program by you or an employee or agent of yours with express, implied, or apparent authority to do so (an "Authorized User"), the Account automatically will be charged for the amount of postage, products, and services requested and the related fees, if applicable. (b) Purchase Power is a product of The Pitney Bowes Bank, Ina (the "Bank") and is not available to individuals for personal, family, or household purposes. You will receive a billing statement for each billing cycle in which you have any activity on the Account. You promise to pay the total amount of all such meter resets, office supplies, and other services which you or an Authorized User order, and applicable fees due under this Agreement. Payments are due by the due date shown on your billing statement. You may pay the rnfve balance due or a portion of the balance, provided that you pay at least U. S. POSTAL SERVICE ACKNOWLEDGEMENT OF DEPOSIT 1. The meter licensee ("Customer") electing to lease and use computerized meter resetting system ("CHAS") meter equipment hereby acknowledges that it may transfer funds to the Bank for deposit into a Postage By PhoneGit Reserve Account which the Customer maintains at the Bank ("Reserve Account") or may transfer funds to the United States Postal Service ("USPS"), through a lockbox bank ("Lockbex Bank") for the purpose of prepayment of postage on CMRS-equipped meters ("Deposit"). 2. On or after the effective date of the Customer's participation vt [he CMRS service contained N the Postage Meter Rental Agreement ("CMRS Agreement") between the Customer and the Meter Company authorized by the Postal Service to lease CMRS-equipped meters, the Customer may, from time to time, make Deposits in the Lockbox Bank account identified as follows: "United States Postal Service CMRSPB." The USPS may, at its discretion, designate itself or a successor as recipient of Deposits made by the Customer to the Lockbox Bank account described above. 3. Any deposit made by [he Customer in the Reserve Account shall be subject to the Postage By PhonerPJ Reserve Account -Agreement and Disclosure Statement governing the Reserve Account. Any Deposit made by the Customer shatl be credited by the USPS only for the payment of postage through CMRS- equipped meters. Such Deposits will be held within the Postal Service Fund at the U.S. Treasury and may be commingled with Deposits of other Customers. The Customer shall not receive or be entitled to any interest or other income earned on such Deposits. 4. The USPS will provide a refund [o the Customer for remaining meter balances. The Lockbox Bank will provide a refund to the Customer for Deposits otherwise held by the USPS. These refunds are provided in accordance with the rnles and regulations governing deposit of (ands for CMRS, published in the Domestic Mail Manual Transition Book or its successor. 5. The Lockbox Bank, which shall collect funds on behalf of the USPS, shall provide the Meter Company with whom the Customer has signed a CMRS Agreement, on each business day, information as to the amount of each Deposit made to the USPS by the Customer, so the Meter Company can update its records. 6. The Meter Company may deposit funds on behalf of the Customer. The USPS will make no advances. Any relationship concerning advances is between the Customer and the Meter Company or an affiliate of the Meter Company. 7. The Customer acknowledges that the terms of this acknowledgment may be changed, modified, or revoked by the USPS, with appropriate notice. 8. USPS regulations governing the deposit of funds for CMRS are published m the Domestic Mail Manual Transition Book or its successor. The Customer acknowledges that it shall be subject to all applicable rules, regulations, and orders of the USPS, including future changes to such roles, regulations and orders, and such additional terms and conditions as may be determined in accordance with applicable law. The USPS rules, regulations, and orders shall prevail in [he event of any conflict with any other terms and conditions apphcable to any deposit. 9. By engaging in any transaction through the Lockbex Bank, which will have the effect of setting postage through CMRS meter equipment, the Customer's activities concerning CMRS aze subject to this USPS Acknowledgment of Deposit. Lease Agreement July 09 TERMS AND CONDITIONS Lease Agreement July 09 3 ADDENDUM TO LEASE AGREEMENT (PAYOFF/BUYOUT TO A THIRD PARTY LESSOR) That certain Lease Agreement entered into by and between Secap Finance as Lessor, and Port Arthur, City of as Lessee, dated July 2009, Lease Number , is hereby amended to include the following: Lessee understands and agrees that the above referenced Lease Agreement includes aPayoff/Buyout of a GE Capital/Hasler Leasing Lease in the amount of $1.,775.49. Lessee will be solely responsible for any amounts over the amount referenced above. Secap Finance will verify and work with you and your current leasing company ("Former Lessor") to determine payoff amounts. Lessee further agrees that this lease becomes effective and Payoff/Buyout shown above will take place only after lessee signs an acceptance agreement notice and verbally confirms acceptance of the new equipment. Regardless of any dispute concerning amounts due to the Former Lessor, Lessee shall pay all payments due Secap Finance, and perform all other obligations, under the Lease. Lessee's obligation to repay to Secap Finance the Payoff /Buyout is unconditional. If the Lease Agreement is cancelled, terminated, or is ineffective for any reason (except if conditionally terminated in contemplation of a new lease between you and us) the Payoff/Buyout shall become immediately due and owing to us (regardless of whether you may have been released in whole or in part from the obligation to pay other sums under the Lease Agreement including Total Payments). By initialing the box, you acknowledge that the Payoff/Buyout referenced above has been carried forward onto this new lease with Secap Finance and represents more than 50% of the cost of the Secap equipment with regard to this transaction. Nit annlicahle Lessee acknowledges that this is the only Addendum to the above referenced Lease Agreement and that except as specifically provided herein, all terms and conditions of said Lease shall remain in full force and effect. Lessor: Secap Finance By: Title: Date: C:\Documents and Settings\dfreeman.CITYHALL\Local Settings\Temporary Interne[ Files\OLK2\Lease Addendum payoff of current lease obligation.doc Lessee: Port Arthur, City of By: Title: Date: