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HomeMy WebLinkAboutPK12-309 - Original - Yamaha Motor Corporation, USA - Cart Master Lease - 10/12/2012 :W� R._. Records Mana`�gerne KENT Document CONTRACT COVER SHEET This is to be completed by the Contract Manager prior to submission to City Clerks Office. All portions are to be completed. If you have questions, please contact City Clerk's Office. Vendor Name: Yamaha Motor Corporation Vendor Number: JD Edwards Number Contract Number: &jd2 - 36 } This is assigned by City Clerk's Office Project Name: Yamaha Cart Lease Description: ❑ Interlocal Agreement ❑ Change Order ❑ Amendment ® Contract ❑ Other: Contract Effective Date: 11/5/12 Termination Date: 11/5/16 Contract Renewal Notice (Days): 60 Number of days required notice for termination or renewal or amendment Contract Manager: Pete Petersen/Teri P. Department: Riverbend Detail: (i.e. address, location, parcel number, tax id, etc.): Electric Golf Cart Lease- 5 Public\RecordsManagement\Forms\ContractCover\adcc7832 1 11/08 w 40 4b : " MAHA Commercial Customer Finance MUNICIPAL MASTER LEASE AGREEMENT MODIFIED Page 1 of 4 MLSE0906 0.1YAMAHA IMODIFIED MUNICIPAL MASTER LEASE YAMAHA MOTOR CORPORATION,U S A MASTER LEASE AGREEMENT dated October 12,2012 between YAMAHA MOTOR CORPORATION,U S A, having its principal place of business at 6555 Katella Avenue, Cypress, California 90630 ("Lessor"), and CITY OF KENT having its principal office at 2204 AVENUE SOUTH KENT,WA 98032 ("Lessee') Lessor and Lessee hereby agree as follows 1 Lease of Equipment Lessor leases to Lessee the equipment described on each attached Equipment Schedule(the"Equipment"),on the terms and conditions of this Lease,the applicable Equipment Schedule,and each rider attached hereto 2 Term The term of this lease for the Equipment described on a particular Equipment Schedule shall commence on the date set forth on such Equipment Schedule and shall continue for the number of months indicated on such Equipment Schedule 3 Rent Lessee shall pay Lessor rent for the Equipment("Rent")in the amounts and at the times set forth on the applicable Equipment Schedule The amount of the Rent has been determined by amortizing the purchase once of the applicable Equipment (using the prices quoted in the Request for Proposal identified on the applicable Equipment Schedule ("RI together with an interest factor at the rate specified in the applicable Equipment Schedule Whenever any payment hereunder is not made when due, Lessee shall pay interest on such amount from the due date thereof to the date of such payment at the lower of Lessor's then prevailing rate for late payments specified in Lessor's invoice to Lessee for such payment or the maximum allowable rate of interest permitted by the law of the state where the Equipment is located 4 Selection Delivery, and Acceotance Lessee shall select the Equipment and take delivery thereof directly from Lessor or an authorized dealer of Lessor(the"Dealer') All costs of delivery are the sole responsibility of Lessee Lessor shall not be liable for any loss or damage resulting from the delay or failure to have any Equipment available for delivery Lessee shall inspect the Equipment to determine that the Equipment is as ordered and has been equipped and prepared in accordance with the RFP and any prior instructions given in writing by Lessee to Lessor or Dealer Lessee shall accept the Equipment if it meets the criteria set forth in the preceding sentence and shall execute and deliver to Lessor or Dealer a Certificate of Acceptance, in form and substance satisfactory to Lessor, with respect to each shipment of Equipment For all purposes of this Lease, acceptance is conclusively established by Lessee's execution and deliver of a Certificate of Acceptance provided by Lessor Lessee authorizes Lessor to insert in each Equipment Schedule the serial numbers and other identifying date of the Equipment 5 Location, and Inspection Lessee shall not move the Equipment from the locations specrf'led in the applicable Equipment Schedule without Lessor's pnor wntten consent Lessor and its representatives shall have the right from time to time during business hours to enter upon the premises where the Equipment is located to inspect the Equipment and Lessee's records to confirm Lessee's compliance with this Lease 6 Care Use and Maintenance Lessee shall, at its expense, at all times during the term of this Lease, keep the Equipment clean, serviced, and maintained in good operating order, repair, condition, and appearance in accordance with Lessor's manuals and other instructions received from Lessor Lessee will not use or operate the Equipment,or permit the Equipment to be used or operated,in violation of any law,ordinance or governmental regulations The Equipment will be used and operated only as golf cars Lessee shall safely store the Equipment when not in use and properly secure it at night and such other times when the golf course on which the Equipment is used is closed to play, and Lessee shall be solely responsible for such storage and safekeeping If the Equipment is electrical, Lessee shall provide sufficient and adequate electrical charging outlets and water facilities for the batteries which are a part of the Equipment, 7. Insurance. Effective upon delivery of the Equipment to Lessee and until the Equipment is returned to Lessor as provided herein, Lessee relieves Lessor of responsibility for all risk of physical damage to or loss or destruction of all the Equipment, howsoever caused Lessor recognizes that Lessee Is self-insured pursuant to Chapter 48 62 of the Revised Code of Washington and accepts the explanatory letter from the Washington Cities Insurance Authority and Evidence of Coverage hereto attached as sufficient coverage for purposes of this Agreement. 8 Storage Lessee shall store the Equipment in such a manner as to prevent theft or damage from weather and vandalism 9 Title Title to the Equipment shall at all times remain with the Lessor Lessee acquires only the interests of Lessee expressly described in this Lease, the applicable Equipment Schedule, and the riders attached hereto Lessee shall not remove, move, or cover over in any manner any serial number on the Equipment Lessee shall keep all Equipment free from any marking or labeling which might be interpreted as a claim of ownership thereof by Lessee or any party other than Lessor or anyone so claiming through Lessor 10 Warranties The Equipment is warranted only in accordance with the manufacturer's warranty EXCEPT AS EXPRESSLY PROVIDED IN THE MANUFACTURER'S WARRANTY, LESSOR DISCLAIMS ANY OTHER WARRANTY, EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NOW INTERFERENCE 11 Alterations and Attachments Lessee may,with Lessors prior written consent,make such cosmetic modifications to the Equipment as Lessee may deem desirable in the conduct of Its business, provided, however, that such alterations shall not diminish the value or utility of the Equipment, or cause the loss of any warranty thereon or any certification necessary for the maintenance thereof, and provided,further, that such modification shall be removable without causing damage to the Equipment Upon return of the Equipment to Lessor,Lessee shall, if Lessor so elects, remove such modifications which have been made and shall restore the Equipment to its original condition,normal wear and tear and depreciation excepted 12 Taxes Lessee shall cooperate with Lessor in all reasonable respects necessary In order for Lessor to qualify for any exemption or exclusion from personal property tax on the equipment or sales or use tax on the leasing of the Equipment to Lessee hereunder In the event Page 2 of 4 MLSE0906 n that any such tax becomes payable by Lessor during the term of this Lease,Lessee shall pay to Lessor as additional rent,promptly on receipt of Lessor's invoice therefor, an amount equal to such tax Lessee shall collect and remit any and all sales, use,and other taxes payable in any state, county,or city in respect of the rental or other use of the Equipment by Lessee 13 Indemnity Notice of Claim Lessee shall be liable for,and hereby indemnifies Lessor and holds Lessor harmless from and against, any and all claims, costs, expenses, damages, losses, and liabilities arising in any way from the, gross negligence or misconduct of Lessee or Lessee's agents and independent contractors, or their respective employees Each party hereto shall give the other party prompt written notice of any claim arising out of the possession, leasing, renting, operation, control, use, storage,or disposition of the Equipment and shall cooperate in all reasonable respects in investigating,defending,and resolving such claim. 14 Return of Equipment Upon the termination of an Equipment Schedule for any reason, unless Lessee is thereupon purchasing the Equipment from Lessor, Lessee shall make the Equipment available for inspection and pick up by Lessor or Dealer at Lessee's location at which the Equipment was used hereunder The Equipment shall be returned to Lessor at the termination of this Lease in the same operating order, repair, condition, and appearance as when received by Lessee, less normal depreciation and wear and tear(which shall not include damaged or missing tires or wheels) 15 Defaults The occurrence of any one or more of the following events shall constitute an"Event of Default"under this Lease (a) default by Lessee in the payment of any installment of rent or other charge payable by Lessee under any Equipment Schedule as and when the same becomes due and payable,or (b) default by Lessee in the performance of any other material term, covenant or condition of this Lease, any for a period of 10 days after notice,or (c) A petition under the Bankruptcy Code or under any other insolvency law providing for the relief of debtors shall be filed by or against Lessee,or (d) The voluntary or involuntary making of any assignment of a substantial portion of its assets by Lessee for the benefit of creditors shall occur, a receiver or trustee for Lessee or for Lessee's assets shall be appointed, any formal or informal proceeding for dissolution, liquidation,settlement of claims against or winding up of the affairs of Lessee shall be commenced, or (e) Lessee shall default under any other lease or agreement between Lessee and Lessor or any of its assignees hereunder,or ` (I) Lessee shall suffer a material adverse change in its financial condition from the date hereof, and as a result thereof Lessor deems itself or any of the Equipment to be insecure 16. Remedies. Upon the occurrence of an Event of Default, Lessor, at its option, may pursue any one or more of the following remedies, in such order or manner as Lessor determines, each such remedy being cumulative and not exclusive of any other remedy provided herein or under applicable law,unless expressly waived herein (a) terminate all or any portion of the Equipment Schedules to this Lease; (b)upon termination of this Lease or with the express consent of Leaee for purposes of mitigating Lessor's damages,take possession of the Equipment, Lessee hereby granting Lessor the right and license to enter upon Lease's premises where the Equipment is located for such purpose (c) proceed by appropriate court action, either at law or in equity, to enforce performance by Lessee of the applicable covenants and terms of this Lease, or to recover from Lessee any and all damages or expenses,which Lessor shall have sustained by reason of Lessee's default in any covenant or covenants of this Lease, or on account of Lessor's enforcement of its remedies thereunder, without limiting any other damages to which Lessor may be entitled, Lessor shall be entitled upon an Event of Default to damages in an amount equal to all Rent then due but unpaid, plus the aggregate amount of Rent thereafter coming due for the remaining term of this Lease, plus Lessor's costs and expenses, exclusive of attorneys fees, minus all amounts received by Lessor after using reasonable efforts to sell or re-lease the Equipment after repossession or from any guaranty by the Dealer or any third-party;and (d) sell the Equipment or enter into a new lease of the Equipment No delay by Lessor in pursuing any remedy shall be treated as a waiver of or limitation on such remedy or any other remedy 17 Assignment Neither Lessee nor Lessor shall transfer, assign, or sublease(except for rentals to players as contemplated hereunder in the ordinary course of business), or create, incur, assume, or permit to exist any security interest, lien, or other encumbrance on, the Equipment,this Lease,or any interest of Lessee therein 18 Lessee's Representations and Warranties. Lessee represents and warrants to Lessor that: (a) Lessee has the authority under applicable law to enter into and perform this Lease and each Equipment Schedule and rider hereto, (b) Lessee has taken all necessary action to authorize its execution, delivery, and performance of this Lease and each Equipment Schedule and rider hereto, (c) the Lease and each Equipment Schedule and rider hereto have been duly executed and delivered by an authorized signatory of Lessee and constitute Lessee's legal,valid,and binding obligations,enforceable in accordance with their terms,and (d)adequate funds have been budgeted and appropriated to enable Lessee to make all payments required under each Equipment Schedule to this Lease during the first twelve months of the term hereof. 19 Non-Appropriation of Funds Notwithstanding anything contained in this Lease to the contrary, in the event no funds or insufficient funds are budgeted and appropriated or are otherwise unavailable by any means whatsoever for Rent due under the Lease with respect to a Equipment Schedule in any fiscal period after the period in which the term of the lease with respect to such Equipment Schedule commences, Lessee will immediately notify Lessor in writing of such occurrence and the Lessee's obligations under the Lease shall terminate on the last day of the fiscal period for which appropriations have been received or made without penalty or expense to Lessee,except as to(1) the portions of Rent for which funds shall have been budgeted and appropriated or are otherwise available and (u)Lessee's other obligations and liabilities under the Lease relating to the period,or accruing or arising,prior to such termination In the event of such termination,Lessee agrees to peaceably surrender possession of the Equipment to Lessor on the date of such termination in the manner set forth in the Lease and Lessor will have all legal and equitable rights and remedies to take possession of the Equipment Notwithstanding the foregoing, Lessee agrees (i) that it will not cancel the Lease and the Lease shall not terminate under the provisions of Page 3 of 4 MLSE0906 this section if any funds are appropriated to it, or by it, for the acquisition, retention or operation of the Equipment or other equipment or services performing functions similar to the functions of the Equipment for the fiscal period in which such termination would have otherwise occurred or for the next succeeding fiscal period, and i that it will not during the Lease term give priority in the application of funds to any other functionally similar equipment or to services performing functions similar to the functions of the Equipment This section is not intended to permit Lessee to terminate the Lease in order to purchase, lease, rent or otherwise acquire the use of any other equipment or services performing functions similar to the functions of the Equipment, and if the Lease terminates pursuant to this section, Lessee agrees that prior to the end of the fiscal period immediately following the fiscal period in which such termination occurs, it will not so purchase, lease, rent or otherwise acquire the use of any such other equipment or services 20 Binding Effect Successors and Assigns This lease and each Equipment Schedule and rider hereto shall be binding upon and shall inure to the benefit of Lessor and Lessee and their respective successors and permitted assigns All agreements and representations of Lessee contained In this Lease or in any document delivered pursuant hereto or in connection herewith shall survive the execution and delivery of this Lease and the expiration or other termination of this Lease 21 Notices Any notice,request or other communication to either party by the other shall be given in writing and shall be deemed received only upon the earlier of receipt or three days after mailing if mailed postage prepaid by regular mail to Lessor or Lessee,as the case may be, at the address for such party set forth in this agreement or at such changed address as may be subsequently submitted by written notice of either party 22 Governing Law This Lease and each Equipment Schedule and rider hereto shall be governed by and construed in accordance with the laws of the State of Washington. Venue shall be in the Superior Court for King County,Washington 23 Severability In the event any one or more of the provisions of this Lease or any Equipment Schedule or rider hereto shall for any reason be prohibited or unenforceable in any jurisdiction, any such provision shall,as to such jurisdiction,be ineffective to the extent of such prohibition or unenforceabihty without invalidating the remaining provisions hereof, any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction 24 Counterparts This Lease and each Equipment Schedule and rider hereto may be executed in any number of counterparts, and by each party in separate counterparts,each of which shall be deemed an original,but all of which counterparts together shall constitute one and the same agreement 25 Statute of Limitations. Any action by Lessee against Lessor or Dealer for any breach or default under this Lease must be commenced within one year after the cause of action accrues. For causes of action other than breach or default the statute of limitations established for the State of Washington shall apply 26. Entire Agreement This Lease and all Equipment Schedules and riders hereto constitute the entire agreement between Lessor and Lessee with respect to the subject matter hereof, and there are no agreements, representations, warranties, or understandings with respect to such subject matter except as expressly set forth herein and therein. No alternation or modification of this Lease or any Equipment Schedule or rider hereto shall be effective unless it is in writing and signed by Lessor and Lessee IN WITNESS WHEREOF, Lessor and Lessee have caused this Lease to be executed on the date first above written I F KENT as Le2see YAMAHA MOTOR CORPORATION, U S A.as Lessor By < By A'10.0 Ad Print ame © Print Name KI iz Title AA Title, Vice President Page 4 of 4 MLSE0906 EXHIBIT A EQUIPMENT SCHEDULE# 103659 Dated 10/12/2012 1 This Schedule covers the following property("Equipment') 36 YDRE,38 YDRA,2 YTIA GOLF CARS 2. Location of Equipment RIVERBEND GOLF COMPLEX 2019 WEST MEEKER ST. KENT,WA 98032 3 The Lease term for the Equipment described herem shall commence on December 01,2012 and shall consist of 48 months from the first day of the month following said date 4. Rental payments on the Equipment shall be in the following amounts,payable on the following schedule 32 MONTHLY PAYMENTS IN THE AMOUNT OF$6,368 62(APPLICABLE TAXES TO BE BILLED). STARTING MARCH 2O13 AND ENDING OCTOBER 2016. DUE THE 1ST DAY OF THE MONTH AS FOLLOWS: Mar-13$6,368 62 Mar-14$6,368 62 Mar-15$6,368 62 Mar-16$6,368 62 Apr-13$6,368 62 Apr-14$6,368 62 Apr-15$6,368 62 Apr-16$6,368 62 May-13$6,368 62 May-14$6,368 62 May-15$6,368.62 May-16$6,368 62 Jun-13$6,368 62 Jun-14$6,368 62 3un-15$6,368 62 Jun-16$6,368 62 Jul-13$6,368 62 Jul-14$6,368 62 Jul-15$6,368.62 Jul-16$6,368 62 Aug-13$6,368 62 Aug-14$6,368 62 Aug-15$6,368 62 Aug-16$6,368 62 Sep-13$6,368 62 Sep-14$6,368 62 Sep-15$6,368 62 Sep-16$6,368 62 Od-13$6,368 62 Oct-14$6,368 62 Oct-15$6,368 62 Oct-16$6,368 62 $. Interest Factor: 3.88 % 6 Other Terms: Lessee agrees to reimburse Lessor, who shall pay any assessed property taxes due on the equipment leased pursuant to Section 12 of the Master Lease Agreement Yamaha is not obligated to perform or provide any service,under any circumstances under the terms of the lease agreement Service is the responsibility of the Lessee. Failure by Lessee to maintain or service the equipment consistent with the terms of the Master Lease Agreement shall not relieve Lessee of the responsibilities under the Master Lease Agreement Signed Counterparts The parties agree that this Lease maybe signed in counterparts,that delivery of an executed counterpart of the signature page to this Lease by fax,email or other electronic means shall be as effective as delivery of a manually executed counterpart, and any failure to deliver the original manually executed counterpart sent by fax,email or other electronic means shall not affect the validity,enforceability or binding effect of this Lease Notwithstanding any other provision of this Lease,the sole original of this Lease shall be the Lease bearing the manually executed signature of the Lessor The Lessee,by making any payment required under this Lease ratifies all of the terms of this Lease/Agreement This Equipment Schedule is issued pursuant to the Master Lease dated, October 12,2012 (the "Lease") All of the terms and conditions, representations and warranties of the Lease are hereby incorporated herem and made a part hereof as if they were expressly Set forth in this Equipment Schedule and this Equipment Schedule constitutes a separate lease with respect to the Equipment described herem. LESSEE: CIT NT LESSOR: YAMA MOTOR CORPORATION, U.S.A. By -- - ur BY Name -- -- -- Name -- Kim ------- Type or Print Title ___ _ _ Title 6 - Vice President - -------- YAMAHA MOTOR CORPORATION, U.S.A. COMMERCIAL CUSTOMER FINANCE 6555 Katella Avenue, Cypress, CA 90630 (800) 551-2994, Fax (714)761-7363 E-MAIL latanya_covington@yamaha-motor com NAME OF INSURANCE AGENT October 12,2012 CITY OF-KENT ADDRESS. 400 WEST GROVE RISK MANAGEMENT DIVISION Please Reference our Quote# 103659 KENT,WA 98032 PHONE _(253)856-5285 FAX (253)8566270 RE RIVERBEND GOLF COMPLEX (Customer)Account# Gentlemen The Customer has leased or will be leasing equipment from Yamaha The Customer is required to provide Yamaha with the following insurance coverage "All Risk" Property Insurance covering the property owned by or in which Yamaha has a security interest, in an amount not less than the full replacement cost of the property,with Yamaha named as LOSS PAYEE. Public Liability Insurance naming Yamaha as an ADDITIONAL INSURED with the proceeds to be payable first on the Behalf of Yamaha to the extent of its liability, if any The amount of the Public Liability Insurance shall not be less than$1,000,000.00 combined single limit Each policy shall provide that (Q Yamaha will be given not less than thirty(30)days prior written notice of cancellation or non-renewal, (u) it is primary insurance and any other insurance covering Yamaha shall be secondary or excess of the policy and (ui) in no event shall the policy be invalidated as against Yamaha or its assigns for any violation of any term of the policy or the Customer's application therefore A Certificate evidencing such coverage should be mailed to Yamaha at the following address. Yamaha Motor Corporation, U.S.A. Attn Commercial Customer Finance 6555 Katella Ave Cypress, CA 90630 Your Prompt attention will be appreciated Very Truly Yours, Equipment Covered, 36 YDRE, 38 YDRA.2 YT1A GOLF CARS CITY OF KENT (Na ebtor/Le By sse Equipment Location ( gna re of Authorized Officer) 2019 WEST MEEKER ST. KENT,WA 98032 _ Tit e PLEASE SENDYOURPAYMENTSTO: YAMAHA MOTOR CORP., U.S.A. I I I Dept. CH14022 Palatine,IL 60055-0586 INVOICE NUMBER: MAN 103659 Date Prepared 10/12/2012 CITY OF KENT 220 4TH AVENUE SOUTH KENT,WA 98032 Due Date Quote No Description. Amount Due ., -, ,. �- ,,r,�,,,.�,�,w,o„�n. ,... 103659 36 YDRE, 38 YDRA, 2 YT1A GOLF CARS for Municipal Lease Cars located at. RIVERBEND GOLF COMPLEX 031112013 Payment $6,368.62 Payment Tax $0.00 YOUR ACCOUNT BALANCE IS------ $6,366.62 >eY�'i./.Mi vaAONS/e9i IJi 0A0'/ AV C/�_>/.#J.v/Fiax�A/fl:tl/!///.�/$B/.filYlaA'i'/O// iW/W[.,—/"", Please return the bottom portion wdh your mrrillitance. Inck de the lease number on your check. FOR BLLNG QUESTIONSCALLYAMAHA CormiercalCtsbnwFrwj a AT 1MW12994. t I PLEASESENDYOURPAYMENTSTO: YAMAHA MOTOR CORP.,U.S.A. Dept. CH14022 Palatine, IL 60055-0586 INVOICE NUMBER MAN 103659 Date Prepared. 10/12/2012 Payment for, CITY OF KENT 220 4TH AVENUE SOUTH KENT,WA 98032 103659 $ # Quote Number Amount Paid Date Paid Check Number � z, :YAMAHA Commercial Customer Finance Dear Customer, Yamaha has in place a process to assist you in making the task of drafting your monthly payment as effortless and convenient as possible Your payment could be made electronically though the Automated Clearing House system (ACH) An ACH is the automatic transfer of your scheduled golf car payment from your bank, to Yamaha This would save your company the expense of checks, stamps, envelopes and time To sign up for the ACH system, please fill out the attached agreement and send it back to us along with a copy of a cancelled check That is all it takes If you should have any questions about this offer, please give our customer service representative a call at 800-551-2994 (ext 1) Yamaha Commercial Customer Finance would like to thank you for your business and we hope that you chose to take advantage of this convenient payment method 6555 Katella Ave Cypress CA 90630 800/551-2994 Fax 714-761-7363 ACH/ONLINE PAYMENTS AGREEMENT RECITALS Yamaha Motor Corporation, U S A ("Yamaha"), located at 6555 Katella Ave, Cypress, CA 90630, seeks to provide Customer with the ability to make payments electronically through the Automated Clearing House system ("ACH System")to the Account,as defined below,in satisfaction of Customer's payment obligations to Yamaha and Customer desires to use the ACH System to transfer funds from the Account,as defined below, to Yamaha in satisfaction of its payment obligations in accordance with the terms set forth below NOW,THEREFORE,in consideration of the promises and the mutual covenants herein contained and other good and valuable consideration,receipt and sufficiency of which the parties hereto acknowledge,it is hereby agreed as follows 1 Customer's Account. Customer shall complete the attached Authorization Agreement for Direct Payments form ("Application"),and allow Yamaha to initiate debit entries through the ACH System to Customer's Account,as defined below,to collect amounts owed by Customer to Yamaha Customer shall provide certain information required by the Application, including information regarding Customer's bank and bank account (the "Account") through which Yamaha will initiate the debit entries authorized pursuant to this Agreement Customer will immediately complete and deliver to Yamaha an updated Authorization Agreement from time to time if any information regarding the Account is changed or is inaccurate Yamaha will thereupon enter such new information regarding the Account into the ACH System Customer will execute such agreements that are required by Customer's bank to allow Yamaha to initiate the debit entries to Account,and to receive the corresponding payments 2 Authorization for ACH Payment, By entering into this Agreement, Customer irrevocably authorizes Yamaha during the term of their Equipment Schedule,to initiate debit entries through the ACH System to the Account to pay Customer's obligations, and to take possession of funds in the Account for application to such obligations If a Customer's debit transaction is rejected by the Customer's bank for reasons such as non-sufficient funds, Yamaha shall have the right to charge Customer's Account a fee of Fifty Dollars ($50)to cover administrative costs associated with the rejected payment 3. Limitation of Liability for ACH System. Yamaha will not be liable for the act or omission of any Automated Clearing House, financial institution, or any person who has obtained unauthorized access to the ACH System Customer acknowledges that if any error occurs in the ACH System debiting process, and Customer will immediately notify Yamaha if the amount of any debit entry which Yamaha initiates exceeds the amount owed by Customer Customer agrees, however, that Yamaha's liability for any such error will be limited to a credit by Yamaha to the Account in the amount of the entry which exceeds the amount owed by Customer, and in no event will Yamaha be liable to Customer for any consequential,special or incidental damages 4 Notices. Any wTitten notice or other written communication required or permitted to be given under this Agreement shall be delivered,or sent by United States certified marl,return receipt requested,to Yamaha unless another address is substituted by notice delivered or sent as provided herein Any such notice will be deemed given when received 5. Termination. This agreement,if required by Yamaha as a credit condition of the account,will only be terminated at the end of the term of the Equipment Schedule or after all payments on the Equipment Schedule have been satisfied If not a credit condition requirement, Yamaha or Customer may terminate this agreement at any time by giving thirty (30)days prior written notice to laic other party 6 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to conflicts of law principles thereof Any disputes,claims and controversies arising out of or directly or indirectly relating to this Agreement, or the breach, invalidity or termination thereof, shall be settled by binding arbitration to be held in Orange County,California 7 Entire Aereement. This Agreement embodies the entire agreement of the parties with respect to the subject matter hereof, and supersedes all previous negotiations, representations, and agreements with respect hereto, and shall be binding upon the parties hereto This Agreement inky be amended only by a writing signed by both parties In the event that any provision of this Agreement shall be held invalid, illegal or otherwise unenforceable for any reason in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of any such provision or obligation in any other jurisdiction,shall not in anyway be affected or impaired thereby Customer cannot assign this Agreement without Yamaha's prior written consent Headings are used for reference purposes only,and are not part of this Agreement The failure by either party to enforce or take advantage of any provision hereof shall not constitute a waiver of the right subsequently to enforce or take advantage of such provisions The parties may rely on any facsimile copy,electronic data transmission or electronic data storage of this Agreement,which will be deemed an original,and the best evidence thereof,for all purposes Address for Deliver of Notice Yamaha Motor Corporation,U S A. 6555 Katella Avenue,Cypress,CA 90630 Attention Stacey Stankev,Assistant Devartment Manager Page 1 of 2 ACH0906 AUTHORIZATION AGREEMENT FOR DIRECT PAYMENTS(ACH DEBITS) Customer Name CITY OFKENT Customer Number. 8565071 Contact Phone Number I(we)hereby authorize Yamaha Motor Corporation,U S A,hereinafter called Yamaha,to initiate debit entries to my(our) r Checking Account or r Savings Account Indicated below at the depository financial institution named below,hereafter called Depository,and to debit the same to such account I(we)acknowledge that the origination of ACH transactions to my(our) account must comply with the provisions of U S law Depository Name Branch City State Zip Bank Routing Number Bank Account Number r Please indicate with a check-mark that there is no debit blocking on your account that would prevent Yamaha from debiting your account according to the provisions of the ACH agreement. This authorization is to remain in full force and effect and can only be terminated under the terms provided under Paragraph 5 By signing below,Customer acknowledges its agreement to the terms of the ACH/Online Payments Agreement set forth on the reverse side of this document. Name(s) (Please Print) Position(s) (Please Print) (must be an owner or officer of the company) Signature(s) Date INSTRUCTIONS FOR ESTABLISHING ACH ACCOUNT: Please forward this executed agreement,along with a voided check,to the following address Yamaha Motor Corporation,U.S.A. Attn:Stacey Stankey 6555 Katella Avenue,Cypress,CA 90630 Page 2 of 2 ACH0906 ZKENT Agenda Item: Consent Was HI NGTOM TO: City Council DATE: October 2, 2012 SUBJECT: Yamaha Golf Cart Lease Agreement - Authorize MOTION: Authorize the Mayor to sign the equipment schedule with Yamaha Motor Corporation, U.S.A. in the amount of $203,795.84 to lease 76 golf carts for four years, subject to final terms and conditions acceptable to the Parks Director and City Attorney. SUMMARY: Last fall the City extended the existing operating Master Lease of the golf complex's fleet of golf carts for one additional year, the extended lease expires November 1, 2012. The new four year Master Lease Agreement with Yamaha Motor Corporation will provide a fleet of 76 new golf carts to the golf complex. The new lease provides 36 electric carts, 36 gas carts, 2 marshal carts and 2 utility carts to the golf complex. The annual cost of the new Master Lease Agreement is $50,948.96, which results in a saving of $2,523.04 annually, compared to the extended lease and an $11,329.36 annual saving from the original lease. The golf complex generates approximately $155,000 in revenue from golf cart rentals annually. These revenues more than cover the monthly lease payments over the 48 month term of the lease agreement. EXHIBITS: Yamaha Motor Corporation Master Lease Agreement and Equipment Schedule RECOMMENDED BY: Parks and Human Services Committee BUDGET IMPACT: Riverbend Enterprise Budget REQUEST FOR MAYOR'S SIGNATURE ENT Please Flll In All Applicable Boxes K . Routing Information (ALL REQUESTS MUST FIRST BE ROUTED THROUGH THE L, UI DEPARTMENT) T Reviewed by Director Originator: Pete Petersen Dept/Phone (Originator) Riverbend x5190 Date Sent. 1 46� ' ' j 'I -j l 1 Date Required: 10/29/2012 Return Signed Document to: Pete P. CONTRACT TERMINATION DATE: VENDOR NAME: Yamaha DATE OF COUNCIL APPROVAL: 10/2/2012 ATTACH MOTION SHEET FOR THE MAYOR Brief Explanation of Document: Last fall the City extended the existing operating Master Lease of the golf complex's fleet of golf carts for one additional year, the extended lease expires November 1, 2012. The new four year Master Lease Agreement with Yamaha Motor Corporation will provide a fleet of 76 new golf carts to the golf complex. The new lease provides 36 electric carts, 36 gas carts, 2 marshal carts and 2 utility carts to the golf complex. The annual cost of the new Master Lease Agreement is $50,948 96, which results in a saving of S2,523 04 annually, compared to the extended lease and an $11,329.36 annual saving from the original lease The golf complex generates approximately 5155,000 in revenue from golf cart rentals annually These revenues more than cover the monthly lease payments over the 48 month term of the lease agreement All Contracts Must Be Routed Through The Law Department (This area to be completed by the Law Department) Received: Approval of Law Dept.• NOV Law Dept Comments- I y � '1J ' ' i Date Forwarded to Mayor: u �T Shaded Areas To Be Completed By Administration Sta I Received- Recommendations and Comments. ri �� Disposition: ,r� ry d ZCi��YrE Date Returned: